LINDA CLEMENTE v. JOHN CLEMENTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LINDA CLEMENTE,

Plaintiff,

v.

JOHN CLEMENTE,

Defendant-Appellant,

and

ANSELL GRIMM & AARON, P.C.,

and WITHUM SMITH & BROWN,

Defendants/Intervenors-

Respondents.

_______________________________________

March 14, 2014

Submitted October 23, 2013 - Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-379-04D.

Pascarella & Associates, P.C., attorneys for appellant (Stephen M. Pascarella, on the brief).

Ansell, Grimm & Aaron, P.C., respondent pro se, and attorneys for respondent Withum Smith & Brown (James G. Aaron, of counsel; Kristine M. Bergman and Bridget K. Dorney, on the brief).

PER CURIAM

This is yet another appeal by defendant John Clemente arising out of his protracted divorce proceedings, the history of which is recounted in prior opinions of the trial court, Clemente v. Clemente, No. FM-13-379-04 (Ch. Div. Aug. 7, 2006); this court, Clemente v. Clemente, No. A-0290-06 (App. Div. Nov. 28, 2008), certif. denied, 198 N.J. 473 (2009),Clemente v. Clemente, No. A-0487-11 (App. Div. Feb. 20), certif. denied, 215 N.J. 485 (2013); and the United States District Court for the District of New Jersey, Clemente v. Clemente (In re Clemente), No. 12-37 (D.N.J. Mar. 19, 2012).

This time defendant appeals from a July 27, 2012 post-judgment order denying his motion to require his judgment creditors, Ansell, Grimm & Aaron, P.C., and Withum Smith & Brown, his ex-wife's former counsel and forensic accountant, "to provide a detailed accounting of all moneys received, to date, from all sources since August, 2003." The judge denied the request because defendant had received such accountings "on at least five prior occasions," and the federal district court had "conclusively decided" the amount defendant owed in its opinion of March 19, 2012.

The judgments at issue began as fee awards included in the divorce judgment entered August 7, 2006. Defendant appealed that judgment to this court, and we affirmed in all respects. Clemente, supra, No. A-0290-06 (slip op. at 2). The fee awards were subsequently declared non-dischargeable and reduced to judgment by the bankruptcy court on May 26, 2010. After several unsuccessful attempts to vacate those judgments in the bankruptcy court based on defendant's allegation that Linda Clemente had already paid a substantial portion of the fees awarded, defendant appealed them to the federal district court. The district court affirmed the judgments finding that "[i]t is abundantly clear to the Court that Judge Flynn, in his initial [judgment of divorce] in 2006, was aware that Linda Clemente had paid the Ansell Firm a portion of her legal fees." In re Clemente, supra, No. 12-37 (slip op. at 10).

The judgment creditors docketed their federal judgments in the Superior Court. And last year, after the entry of the order on appeal, we denied defendant's appeal from Judge Flynn's refusal to execute a consent order that would have abrogated those non-dischargeable judgments without notice to the judgment creditors. Clemente, supra, No. A-0487-11 (slip op. at 3).

In our opinion, we noted that defendant also appealed from a post-judgment order entered December 23, 2010, in which the court granted plaintiff's application to enforce payment of all funds awarded in the judgment of divorce and awarded fees post judgment. Clemente, supra, No. A-0487-11 (slip op. at 2 n.1). In his notice of appeal, defendant claimed that the trial judge had improperly awarded plaintiff her expert fees and that the counsel fee awards were improperly reduced to judgments without the trial judge "ever holding a hearing on them." Because defendant did not brief any issue relating to that fee order, we deemed its appeal abandoned. Ibid. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).

On this appeal, defendant argues that he has "maintained that his ex-spouse, Linda Clemente, had previously paid both [Ansell, Grimm & Aaron], as well as [Withum Smith & Brown], on the original fees awarded and, later reduced to judgment." Defendant also contends that these fees "were never subjected to an accounting. More specifically, the 2006 fees awarded were never examined for credits by way of payment by or on behalf of Linda Clemente."

Although defendant contends it is "important to note, at least on this application, that [he] is not attacking or challenging the judgment(s) in issue," it is patently obvious that that is precisely his aim. As the amounts of these judgments have been conclusively determined several times over, in both state and federal court, defendant may not challenge them again in the guise of seeking an accounting from August 2003 when plaintiff filed her complaint for divorce. See Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 409 (1991) (noting that res judicata insulates the courts from relitigation of claims and avoids the "inefficiency inherent in multiplicitous litigation," while also preventing the harassment of parties and serving both the interests of fairness and the integrity of judgments regardless of whether made in state or federal court).