W.S.H v. V.L.P

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4297-19

W.S.H.,

          Plaintiff-Respondent,

v.

V.L.P.,

     Defendant-Appellant.
________________________

                   Submitted September 21, 2021 – Decided February 16, 2022

                   Before Judges Fisher and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Burlington County,
                   Docket No. FM-03-0289-14.

                   Hegge & Confusione, LLC, attorneys for appellant
                   (Michael Confusione, of counsel and on the brief).

                   The Law Office of Louis G. Guzzo, attorneys for
                   respondent (Louis G. Guzzo, on the brief).

PER CURIAM
        In this post-judgment matrimonial matter, defendant V.L.P. appeals from

the May 20, 2020 and July 24, 2020 orders of the Family Part compelling her to

sell her North Wildwood vacation home to satisfy her equitable distribution and

alimony arrears, and appointing an attorney-in-fact to act on her behalf to

effectuate the sale.1 We affirm.

                                           I.

        The parties were married in May 2000. The marriage produced two

children. Plaintiff W.S.H. filed for divorce in September 2013.

        A dual final judgment of divorce was entered on June 8, 2017. The

judgment incorporated three consent orders, two of which are relevant here. The

June 1, 2016 consent order obligated V.L.P. to pay W.S.H. $5,000 per month in

alimony for five years beginning May 2016. The August 3, 2016 consent order

detailed the parties' agreed upon shares of equitable distribution.     W.S.H.

retained the personal property and vehicles in his possession. V.L.P. retained

sole ownership of the parties' Shamong and North Wildwood houses, her

business, all personal property in her possession and in the houses, and the

vehicles in her possession. She was also obligated to pay W.S.H. $400,000 in

equitable distribution pursuant to a schedule. Payments of $33,333.33 were due


1
    We use initials to protect the identity of the parties' children.
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on September 1, 2016, 2017, and 2018. The remaining $300,000 was to be paid

in monthly installments over a 9.4-year period beginning in 2021.

      Soon after the judgment of divorce was entered, V.L.P. fell into arrears.

On October 11, 2017, the trial court granted W.S.H.'s motion to enforce the

judgment and consent orders.     The trial court ordered V.L.P. to make her

regularly scheduled alimony payments and pay an additional $1,000 per month

against her $15,000 arrearage through the Probation Department.

      V.L.P. continued to fall further into arrears. W.S.H. again moved to

enforce the judgment and consent orders. V.L.P. cross-moved for modification

of her equitable distribution and alimony obligations due to changed

circumstances. She also sought relief from the divorce judgment's anti-Lepis

clause.2

      On September 13, 2019, the trial court granted W.S.H.'s motion, and

entered an order directing V.L.P. to pay W.S.H. $56,798 within thirty days to



2
  In Lepis v. Lepis,  83 N.J. 139, 146 (1980), the Court recognized the power to
modify court-ordered alimony or child support upon a showing of changed
circumstances. An anti-Lepis clause purports to prohibit the obligor from filing
a motion for that relief; whether such clauses will be enforced depends on
several factors. See Morris v. Morris,  263 N.J. Super. 237, 240-1 (App. Div.
1993); see also Smith v. Smith,  261 N.J. Super. 198, 199 (Ch. Div. 1992);
Finckin v. Finckin,  240 N.J. Super. 204, 205 (Ch. Div. 1990).


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satisfy her alimony arrearage and to make her monthly alimony payments by the

fifteenth of each month or be fined. The court also ordered V.L.P. to pay an

overdue equitable distribution payment of $33,333.33 within thirty days.

      The court denied V.L.P.'s cross-motion. The court found that V.L.P. had

not established changed circumstances and noted that after entry of the judgment

of divorce V.L.P. purchased her third home, a $1.8 million apartment in

Philadelphia.

      On October 15, 2019, V.L.P. filed a notice of appeal from the September

13, 2019 order. Although the appeal did not have the effect of staying the

September 13, 2019 order, see In re Hoboken Teachers' Ass'n,  147 N.J. Super.
 240, 251 (App. Div. 1977), V.L.P. failed to comply with its terms.

      On January 27, 2020, W.S.H. moved to enforce the September 13, 2019

order. At the time, V.L.P. was $86,298 in arrears on alimony and had not made

the past due equitable distribution payment of $33,333.33. Among the relief

sought by W.S.H. was the court-ordered sale of the North Wildwood property

to satisfy V.L.P.'s arrears. V.L.P. opposed the motion, arguing that the trial

court lacked jurisdiction to decide W.S.H.'s motion because of the pending

appeal of the September 13, 2019 order.




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      On March 20, 2020, the trial court entered an order granting W.S.H.'s

motion to enforce the September 13, 2019 order. The court issued a written

statement of reasons in which it acknowledged that Rule 2:9-1(a) vests in this

court supervision and control of a matter once an appeal is filed. However, the

trial court noted that Rule 1:10-3 permits it to enforce orders that are the subject

of an appeal and have not been stayed.

      In addition, relying on Rule 1:10-3, Rule 5:3-7(b) and  N.J.S.A. 2A:34-23,

the court concluded that V.L.P.'s persistent failure to comply with her equitable

distribution and alimony obligations warranted the compelled sale of the North

Wildwood property to satisfy her arrears. The court noted that V.L.P. had three

homes. The sale, therefore, would not leave V.L.P. and the children without a

residence. On July 24, 2020, the trial court issued an order appointing an

attorney-in-fact for V.L.P. for the purpose of effectuating the sale of the North

Wildwood property.

      This appeal followed. V.L.P. argues that the trial court's March 20, 2020

and July 24, 2020 orders should be vacated because: (1) the trial court was

without jurisdiction to hear W.S.H.'s motion to enforce the September 13, 2019

order during the pendency of her appeal of that order; and (2) if the trial court

had jurisdiction to hear W.S.H.'s motion, it misapplied the law when it ordered


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the sale of the North Wildwood property and appointed an attorney-in-fact to

carry out the sale.

      On January 22, 2021, we affirmed the September 13, 2019 order. W.S.H.

v. V.L.P., No. A-0644-19 (App. Div. Jan. 22, 2021).

                                        II.

      Our review of Family Part orders is limited. Cesare v. Cesare,  154 N.J.
 394, 411 (1998). Given the Family Part's "special jurisdiction and expertise in

family matters," substantial deference is owed to the Family Part's factual

findings so long as they are supported by "adequate, substantial, [and] credible

evidence." Id. at 411-12. "[W]e do not overturn those determinations unless

the court abused its discretion, failed to consider controlling legal principles, or

made findings inconsistent with or unsupported by competent evidence." Storey

v. Storey,  373 N.J. Super. 464, 479 (App. Div. 2004). The trial court's legal

conclusions are reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm.,  140 N.J. 366, 378 (1995).

      We begin with the propriety of the trial court deciding W.S.H.'s motion to

enforce the September 13, 2019 order while V.L.P.'s appeal of that order was

pending. "The ordinary effect of the filing of a notice of appeal is to deprive the

trial court of jurisdiction to act further in the matter unless directed to do so by


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an appellate court, or jurisdiction is otherwise reserved by statute or court rule."

Manalapan Realty, L.P.,  140 N.J. at 376; see R. 2:9-1(a). "The trial court,

however, shall have continuing jurisdiction to enforce judgments and orders

pursuant to R. 1:10" while those orders are on appeal. R. 2:9-1(a).

      R. 1:10-3, Relief to Litigant, provides:

            Notwithstanding that an act or omission may also
            constitute a contempt of court, a litigant in any action
            may seek relief by application in the action . . . . In
            family actions, the court may also grant additional
            remedies as provided by R. 5:3-7.

The rule provides a "means for securing relief and allow[s] for judicial discretion

in fashioning relief to litigants when a party does not comply with a judgment

or order." N. Jersey Media Group, Inc. v. State, Off. of Governor,  451 N.J.

Super. 282, 296 (App. Div. 2017) (alteration in original) (quoting In re N.J.A.C.

5:96,  221 N.J. 1, 17-18 (2015)).

      Rule 5:3-7(b) provides that a court, after finding a violation of a judgment

or order concerning alimony, may, in addition to the remedies permitted by Rule

1:10-3, grant the following remedies:

            (1) fixing the amount of arrearages and entering a
            judgment upon which interest accrues; (2) requiring
            payment of arrearages on a periodic basis; (3)
            suspension of an occupational license or driver's license
            consistent with law; (4) economic sanctions; (5)
            participation by the party in violation of the order in an

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            approved     community     service    program;    (6)
            incarceration, with or without work release; (7)
            issuance of a warrant to be executed upon the further
            violation of the judgment or order; and (8) any other
            appropriate equitable remedy.

      We agree with the trial court's conclusion that it had jurisdiction to decide

W.S.H.'s motion to enforce the September 13, 2019 order. As noted above,

V.L.P.'s appeal did not stay the September 13, 2019 order. She remained

obligated to abide by its terms. Consistent with her pattern of failing to comply

with court orders, V.L.P. did not make the equitable distribution and alimony

payments required by the September 13, 2019 order. It was within the trial

court's power to enforce the order pursuant to Rule 1:10-3 and Rule 5:37-(b).

      We disagree with V.L.P.'s argument that the compelled sale of the North

Wildwood property goes beyond enforcement of the September 13, 2019 order

by changing the terms of the equitable distribution ordered in the judgment of

divorce. The equitable distribution agreed to by the parties and ordered by the

court included both V.L.P. retaining sole ownership of the North Wildwood

property and V.L.P. paying W.S.H. $400,000 in installments over several years.

V.L.P. obtained ownership of the house, but she failed to fulfill her obligation

to make payments to W.S.H. The March 20, 2020 and July 24, 2020 orders

enforce V.L.P.'s equitable distribution cash payment obligations; they do not


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change the equitable distribution of property among the parties. The court did

not order the North Wildwood house be transferred to W.S.H. It instead ordered

the liquidation of one of V.L.P.'s assets to satisfy her equitable distribution and

alimony arrearages.

      Our careful review of the record also revealed no substantive basis on

which to vacate the March 20, 2020 and July 24, 2020 orders. We review a

Family Part's formulation of equitable remedies to enforce one of its orders for

an abuse of discretion. Milne v. Goldenberg,  428 N.J. Super. 184, 197-98 (App.

Div. 2012).

      The Family Part "possesses broad equitable powers to accomplish

substantial justice" and may tailor an appropriate remedy for violation of its

orders. Finger v. Zenn,  335 N.J. Super. 438, 447 (App. Div. 2000). In addition,

 N.J.S.A. 2A:34-23 provides:

              [A]fter judgment of divorce . . . the court may make
              such order as to the alimony or maintenance of the
              parties . . . as the circumstances of the parties and the
              nature of the case shall render fit, reasonable, and just
              . . . . [U]pon default in complying with any such order,
              the court may award and issue process for the
              immediate sequestration of the personal estate, and the
              rents and profits of the real estate of the party so
              charged, and appoint a receiver thereof, and cause such
              personal estate and the rents and profits of such real
              estate, or so much thereof as shall be necessary, to be
              applied toward such alimony and maintenance as to the

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            said court shall from time to time seem reasonable and
            just; or the performance of the said orders may be
            enforced by other ways according to the practice of the
            court.

      Our Supreme Court has held that "the trial court may exercise its

discretion to order the sale of marital assets and the utilization of proceeds in a

manner as 'the case shall render fit, reasonable, and just.'"        Randazzo v.

Randazzo,  184 N.J. 101, 102 (2005). While Randazzo involved the sale of real

property prior to the final judgment of divorce, V.L.P. makes no convincing

argument why the court's ability to fashion appropriate relief in a divorce

proceeding should be any less expansive where a party persists, post judgment,

in refusing to comply with court orders establishing her equitable distribution

and alimony obligations. See Slayton v. Slayton,  250 N.J. Super. 47, 50 (App.

Div. 1991) ("An item which was equitably distributed may indeed be tapped as

a fund out of which otherwise calculated alimony may be satisfied.").

      In the face of V.L.P.'s flagrant refusal to comply with court orders

directing her to make equitable distribution and alimony payments, the court's

directive to sell the North Wildwood property was an appropriate exercise of its

discretion. So too was the appointment of an attorney-in-fact to effectuate the

sale of the property, given V.L.P.'s well-established recalcitrance to follow court

orders.

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      To the extent we have not specifically addressed any of V.L.P.'s remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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