A question often asked by clients when negotiating the terms of a settlement agreement or when in receipt of a Judgment of Divorce (“JOD”) is what happens if my spouse doesn’t comply with these terms?  If you’ve been through litigation related to a divorce or post-divorce situation you may feel frustrated that an Order signed by a judge is nothing more than a piece of paper and can all too often be difficult to enforce.  Since the family courts are courts of equity, more often that not, judges tend to give second and third chances when a litigant does not comply before more severe punishments are imposed.  Judges may often fear that if they do not give litigants an opportunity to correct the error of their ways, they are not acting equitable or could be subject to criticism and reversal from the Appellate Division.

In the unpublished decision of Cordier, Jr. v. Day-Cordier, decided April 7, 2009, Docket No. A-4004-07T3, the Court addressed the issue of counsel fees and other requirements imposed on a party who failed to comply with the terms of a JOD.

These parties were divorced in February 2007.  Part of the judgment of divorce required that in return for $100,000 from plaintiff, defendant relinquished her interest in the former marital home; plaintiff would refinance the mortgage to remove defendant’s name and associated responsibility; defendant warranted that other than the mortgage, she had not caused any other liens, etc. to be lodged against the former marital home but if any were found to exist, she would satisfy them from the $100,000 she received from plaintiff; and plaintiff was to pay $425/week as term alimony for 4 years.

In November 2007, plaintiff filed a motion to enforce litigant’s rights. Defendant, despite two postponements, never filed any response thereto.  Plaintiff’s motion was stimulated because a lien in the amount of $16,221.62 had been placed on the former marital home because of defendant’s credit card debt and the IRS had imposed a lien of $4,684.90 due to defendant’s unpaid tax obligations.  Plaintiff also sought to suspend his alimony obligation until the debts were paid; an accounting of how defendant spent the $100,000 received from the settlement; counsel fees for defending the foreclosure action; and counsel fees for the motion itself.

In a January 2008 Order, the court suspended plaintiff’s alimony obligation until defendant provided a written list of all her creditors and payments made on those debts as well as proof of employment. Defendant also had to provide a full accounting of how she spent the $100,000 she received from the settlement; proof that she had satisfied all liens against the home and any other debts; and counsel fees of $1,527.12.

In February 2008, defendant filed a motion for reconsideration seeking to vacate the terms of the January 2008 Order. In support of her application defendant provided proof that she satisfied the credit card debt in December 2007 and the IRS debt in January 2008. She alleged that she did not respond to plaintiff’s motion to enforce litigant’s rights because he had agreed to withdraw the application if she paid the debts in full. He failed to do so without defendant’s knowledge.

In response to defendant’s application for reconsideration, plaintiff filed a cross motion requiring defendant to pay the counsel fees award; provide the previously ordered accounting; and supply a statement listing all her creditors and debts. The court entered an Order on March 7, 2008. Despite finding that defendant had substantially complied with the January 2008 Order, the court still required defendant to supply an accounting of canceled checks paid to her creditors as well as an accounting of the $100,000 she received from the settlement. The court modified the prior Order in that defendant was relieved from her obligation to account for those debts that are entirely unrelated to plaintiff.

The appeal stemmed from that Order. Defendant contended in her appeal that the March 2008 Order was onerous, intrusive and unjustified. The Appellate Division agreed. In light of defendant’s proofs showing that she had indeed notified plaintiff that she satisfied the two debts, and that plaintiff nonetheless failed to withdraw his motion, the court should have desisted from ordering the intrusive accounting. Once defendant satisfied the debts and plaintiff failed to demonstrate that there were any other creditors lurking, the judge’s refusal to reconsider the November 2007 Order was an abuse of discretion.

Also, because the trial judge found that defendant had satisfied the outstanding debt prior to the entry of the January 2008 Order, the judge erred when she refused to vacate the alimony suspension. Plaintiff should be ordered to reimburse defendant for those three weeks of suspended alimony payments. However, since defendant did not satisfy those debts until after plaintiff filed his motion to enforce litigant’s rights, the part of the Order requiring defendant to pay plaintiff’s counsel fees remains undisturbed except that the time associated with the argument of the motion on January 11, 2008 should be vacated.

The Appellate Division found that the trial judge was correct in requiring defendant to be responsible for reimbursing plaintiff any counsel fees incurred in connection with the defense of the foreclosure action on the marital home. However, further proceedings must be held to determine the financial circumstances of the parties and their ability to pay.

EDITOR’S NOTE:  One of hardest things to explain to client’s is why court’s do not aggressively enforce their orders.  Having practiced in another state, I note that this is not the case every where.  As a young attorney in Colorado after having practiced for a short time in NJ, I was shocked when a father was convicted of contempt of court and jailed for 6 months for not paying child support.  I have spoke to attorneys in other states who also are surprised with how lax enforcement by our court’s can be. 

On another note, in many cases, you write multiple letters to try to get compliance with an Order and when that doesn’t work, you file your enforcement motion.  Only after the motion is filed is the error corrected.  To often, the Court will find that the issue is moot and not award counsel fees.  Aside from being contrary to the Court Rules regarding counsel fees for enforcement applications, and perhaps the Settlement Agreement which has a counsel fee clause if someone needs to enforce an agreement, this is simply unfair.  In reality, the motion is not moot and it was the motion itself that forced compliance.  Counsel fees really should be awarded in those situations otherwise the non-compliant party can simply delay and force the other to file a motion to get what they are entitled to.  The Court in the case Sandra blogged about got it right in this regard.    ERIC S. SOLOTOFF

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