DEBRA KACHMAR VS. DAVID KACHMAR (FM-18-0221-10, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 29, 2019
• Docket: A-5025-17T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5025-17T4

DEBRA KACHMAR, a/k/a DEBRA KURES,

Plaintiff-Respondent,

v.

DAVID KACHMAR,

Defendant-Appellant. ____________________________

Submitted April 8, 2019 – Decided April 29, 2019

Before Judges Messano and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0221-10.

DeTommaso Law Group, LLC, attorneys for appellant (Andrew M. Shaw, on the brief).

Respondent has not filed a brief.

PER CURIAM Defendant David Kachmar appeals from certain provisions of the Family

Part's May 25, 2018 order that resolved a post-judgment motion made by

plaintiff, Debra Kures, f/k/a Debra Kachmar, and defendant's cross-motion filed

with his opposition in response. The parties were divorced in 2012 after nearly

twenty years of marriage. The final judgment of divorce incorporated a property

settlement agreement allowing plaintiff to remain in the marital home and

providing for the disposition under alternate scenarios. If plaintiff re-financed

the property within a certain time and assumed certain marital debts, defendant

would deed his interests to her. Failing that, plaintiff would transfer the property

to defendant and not be responsible for any of the specified marital debts, except

to "reimburs[e defendant] the unpaid mortgage payments and the tax lien

resulting from her occupancy in said residence."

Plaintiff conveyed her interest to defendant, but failed to pay the

reimbursements. As the result of defendant's successful motions to enforce

litigant's rights, the court entered an order on March 19, 2014 reducing to

judgment payments defendant made toward the mortgage and tax lien, and

awarding defendant counsel fees. A subsequent enforcement action resulted in

another award of counsel fees to defendant.

A-5025-17T4 2 For reasons that are unnecessary to explain, the court awarded defendant

sole custody of the parties' son. In February 2018, plaintiff moved for

modification, seeking joint legal custody, revisions to the parenting time

schedule, and a name change. Defendant opposed and filed a cross-motion

seeking various forms of relief, only two of which are relevant to this appeal.

Citing Rule 4:42-11(a), defendant requested an award of interest "on each

of [plaintiff's] financial obligations . . . (including but not limited to the

judgment entered for unpaid mortgage reimbursements, unpaid tax lien

reimbursements, and both awards of counsel fees) . . . ." In addition, citing

plaintiff's "manifest and unequivocal" bad faith, defendant sought counsel fees

for having to bring his cross-motion.

The judge initially reserved decision following oral argument. Late r, she

issued an order accompanied by a written statement of reasons. The judge

ordered that by July 24, 2018, i.e., within sixty days, plaintiff either "provide

the full sum of $44,000.26 to [d]efendant . . . representing the mortgage, tax

lien, and previously [o]rdered counsel fees," or work with defendant "to develop

an appropriate payment plan to reimburse the amount." The judge, however,

denied defendant's request for post-judgment interest from the date of the prior

judgment or orders. Instead, she ordered that "post-judgment interest shall . . .

A-5025-17T4 3 begin accruing on this amount pursuant to Rule 4:42-11 beginning on July 24,

2018." The judge reasoned that defendant's "claim for retroactive interest on

obligations that have existed for several years is inequitable and at least partially

barred by the doctrine of laches." Although the judge found the requested

amount of counsel fees was reasonable, citing some of the factors listed in Rule

5:3-5(c), she ordered plaintiff to pay $2918.75, one-half of the requested

amount.

Defendant argues, "[b]ecause interest accrues by operation of law as of

the date on which judgment is entered," the judge erred by postponing the

accrual of interest until at least July 24, 2018. In this regard, he contends the

judge erroneously applied the doctrine of laches to deny his request. Defendant

also argues the judge failed to "meaningfully analyze" the factors guiding an

award of counsel fees and erred by reducing the requested amount.

Rule 4:42-11(a) provides: "Except as otherwise ordered by the court or

provided by law, judgments, awards and orders for the payment of money, taxed

costs and attorney's fees shall bear simple interest . . . ." "It is clear that the

post-judgment interest provided for by the rule applies to a money judgment

obtained in any cause of action." Pressler & Verniero, Current N.J. Court Rules,

cmt. 1.2.1 on R. 4:42-11(a) (2019).

A-5025-17T4 4 Two reported cases, one of which counsel cited, recognize the

appropriateness of an award of post-judgment interest in Family Part actions,

but neither is particularly instructive because they relied on then -current Court

Rules that have been since revised. In Slater v. Slater, we considered the rate of

post-judgment interest that should apply to a Keogh fund the defendant was

required to transfer to the plaintiff pursuant to court-ordered equitable

distribution, but withheld. 223 N.J. Super. 511, 517-18 (App. Div. 1988). We

determined the proper rate by applying the express terms of the court's order and

Rule 5:7-4, which, at the time, provided: "In awarding alimony or support, or

both, the judgment or order shall . . . provide . . . that payments shall be subject

to a late interest charge at the rate prescribed by Rule 4:42-11(a) unless the court,

for good cause shown, otherwise orders." (emphasis added).

In her written opinion, the judge emphasized Rule 5:7-4's seemingly

limited application to support judgments or orders. However, as noted, Slater

considered equitable distribution of an asset, like the marital home in this case,

and applied the rule. Defendant points out that Rule 5:7-4 since has been

amended to exclude this provision, and, we conclude that Slater provides little

guidance as to whether a court should presumptively award post-judgment

interest on Family Part judgments and orders.

A-5025-17T4 5 In Pryce v. Scharff, which neither counsel nor the judge cited, we

considered whether the plaintiff was "entitled to an order adding post-judgment

interest to [the] defendant's [p]robation-enforced child support account." 384

N.J. Super. 197, 202 (App. Div. 2006). In ultimately ordering [p]robation to

include interest, id. at 216, we considered Rules 5:7-5(a) and 5:7-5(g) as they

then existed. Id. at 210-12. Subsection (a) provided that pursuant to a party's

enforcement motion, or on its own motion, "the court may . . . assess a late

interest charge . . . at the rate prescribed by Rule 4:42-11(a)," "[f]or past-due

alimony or child support payments that have not been docketed as a civil money

judgment . . . ." Id. at 210 (emphasis added). Whereas subsection (g)

automatically reduced past-due child support payments to judgment with post-

judgment interest at the rate prescribed by Rule 4:42-11(a). Id. at 210-11.1

We note extensive rule revisions made since we decided Pryce affected

former subsection (a), cited above. Rule 5:7-5(a) now provides:

For past-due alimony or child support payments that have not been docketed as a civil money judgment with the Clerk of the Superior Court, the court may, on its own motion or on motion by the party bringing the enforcement action, assess costs against the adverse party at the rate prescribed by Rule 4:42-11(a).

[(Emphasis added).]

1 This provision is now contained in Rule 5:7-5(d). A-5025-17T4 6 This confusing landscape leads us to rely on the general jurisprudence

developed under Rule 4:42-11(a). We have said that "the grant of post-judgment

interest is ordinarily not an equitable matter within the court's discretion but is,

as a matter of long-standing practice, routinely allowed." Bd. of Educ. of

Newark v. Levitt, 197 N.J. Super. 239, 244-45 (App. Div. 1984). A court may

prohibit or reduce post-judgment interest upon "a showing of good cause to the

contrary." Id. at 245. Later, in Marko v. Zurich North American Insurance Co.,

we said, "Both the court rule and our case law clearly indicate that a judgment

creditor is entitled to post-judgment interest at the rate specified in Rule 4:42-

11(a) absent an extraordinary and equitable reason." 386 N.J. Super. 527, 532

(App. Div. 2006).

However, in Lehmann v. O'Brien, noting the express language of the Rule

— "[e]xcept as otherwise ordered by the court or provided by law" — we held

that the "grant or denial [of post-judgment interest] is discretionary with the trial

judge." 240 N.J. Super. 242, 249 (App. Div. 1989) (first alteration in original).

The Marko panel cited this precise language. 386 N.J. Super. at 532; see also

Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 264 (App. Div. 1997)

("while case law suggests that fixing post-judgment interest at the legal rate is

A-5025-17T4 7 the standard, the analysis adopted by the courts in reaching their decisions

clearly incorporates an equitable component").

Obviously, "[t]he Family Part is a court of equity." Thieme v. Aucoin-

Thieme, 227 N.J. 269, 287 (2016) (quoting Randazzo v. Randazzo, 184 N.J. 101,

113 (2005)). We conclude that in this case, contrary to defendant's argument,

the judge had the discretionary authority in the exercise of her inherent equitable

powers to award or deny post-judgment interest on the specific judgments and

orders at issue.

However, the judge largely explained her reason for denying the accrual

of post-judgment interest until, at the earliest, sixty days later, was primarily

defendant's delay, i.e., the doctrine of laches. "That doctrine is invoked to deny

a party enforcement of a known right when the party engages in an inexcusable

and unexplained delay in exercising that right to the prejudice of the other

party." Knorr v. Smeal, 178 N.J. 169, 180-81 (2003) (citing In re Kietur, 332

N.J. Super. 18, 28 (App. Div. 2000)). "Laches may only be enforced when the

delaying party had sufficient opportunity to assert the right in the proper forum

and the prejudiced party acted in good faith believing that the right had been

abandoned." Id. at 181 (citing Dorchester Manor v. Borough of New Milford,

A-5025-17T4 8 287 N.J. Super. 163, 172 (Law Div. 1994)). Under the circumstances, applying

the doctrine, even "partially," was a mistaken exercise of discretion.

In her motion, plaintiff acknowledged being in default of multiple prior

orders that required her to pay defendant. In other words, plaintiff did not

detrimentally rely upon defendant's inaction. In addition, post-judgment interest

generally accrues once the judgment is entered, not when all post-judgment

proceedings are resolved. See Baker v. Nat'l State Bank, 353 N.J. Super. 145,

173-74 (App. Div. 2002) (holding that post-judgment interest accrues from the

date of a jury verdict and rejecting an argument that it accrues when all appeals

end).

"The key factors to be considered in deciding whether to apply the

doctrine [of laches] are the length of the delay, the reasons for the delay, and the

'changing conditions of either or both parties during the delay.'" Knorr, 178 N.J.

at 181 (quoting Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145, 152 (1982)).

Here, defendant repeatedly sought enforcement of the court's prior orders and

was, at all times, being denied by plaintiff the use of monies rightfully owed to

him.

In short, we remand the matter to the Family Part to consider defendant's

request for post-judgment interest within the proper framework we described.

A-5025-17T4 9 We express no opinion as to whether the award of post-judgment interest from

the date of the entry of judgment and orders awarding counsel fees is equitable

under the facts of this case and leave that decision to the discretion of the court.

We affirm the award of counsel fees made by the judge. Rule 5:3-5(c)

provides:

In determining the amount of the fee award, the court should consider, . . . the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

"The assessment of counsel fees is discretionary, and will not be reversed except

upon a showing of an abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46

(App. Div. 2011) (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444

(2001)).

Defendant argues the judge failed to consider and analyze all relevant

factors, and plaintiff's obvious bad faith in failing to comply with prior orders

should have resulted in the award of the full amount he sought. However, even

A-5025-17T4 10 when fees are sought because of the need to enforce litigant's rights, a party's

"bad faith is not the sole requirement for an assessment of fees[,]" but one of the

factors the trial court may consider in determining the amount of counse l fees.

Harte v. Hand, 433 N.J. Super. 457, 466 (App. Div. 2013) (citing N.J.S.A.

2A:34-23). Here, the judge found "little relevance to [the] parties' economic

positions because [p]laintiff has been non-compliant with several [c]ourt

[o]rders."

However, the judge also found that plaintiff's motion was not motivated

by bad faith, and her arguments were reasonably made under the circumstances.

Seen in this light, the judge's decision to award one-half of the requested fees,

representing the relief defendant sought and received on his cross-motion, but

essentially not awarding fees associated with opposing plaintiff's motion, was

entirely reasonable.

Affirmed in part, reversed in part, and remanded. We do not retain

jurisdiction.

A-5025-17T4 11