NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2639-16T2
DIANA ORLANDO,
Plaintiff-Appellant,
v.
JOSEPH ORLANDO,
Defendant-Respondent. _____________________________
Submitted April 9, 2018 – Decided August 16, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1569-15.
Villani & DeLuca, PC, attorneys for appellant (Benjamin M. Hoffman, on the briefs).
Keith, Winters & Wenning, LLC, attorneys for respondent (Brian D. Winters, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Diana
Orlando appeals from a November 18, 2016 Family Part order
denying her request that defendant Joseph Orlando be sanctioned
for failing to make certain alimony payments, and that he pay her counsel fees. We vacate the order under review and remand
for further proceedings.
I
In August 2015, the parties divorced after entering into a
property settlement agreement (PSA). Under the PSA, defendant
is obligated to pay plaintiff $4000 per month in alimony and, as
it is termed in the PSA, "additional alimony," which is $6000
per year or thirty-three percent of defendant's annual bonus,
whichever sum is greater. The PSA specifically states defendant
usually receives his annual bonus in February or March of each
year.
Defendant did not pay plaintiff the additional alimony in
March 2016, and ignored plaintiff's requests that he do so,
necessitating plaintiff file a motion to enforce payment of his
share of his annual bonus. On May 27, 2016, the court entered
an order (May order) providing, in relevant part, that defendant
pay plaintiff the additional alimony by June 3, 2016 and, if he
failed to do so, pay $100 per day as a sanction until he did.
The order also directed defendant to pay plaintiff $1975.50 for
the costs and counsel fees she incurred to prosecute the motion.
Defendant failed to pay the additional alimony by June 3
and, thereafter, did not pay the $100 per day sanction. He also
did not pay plaintiff the $1975.50 costs and counsel fee award. 2 A-2639-16T2 On July 25, 2016, plaintiff filed a motion to hold defendant in
violation of litigant's rights, see Rule 1:10-3, and to enforce
the May order. As for the $100 per day sanction, plaintiff
sought $5200, the amount defendant should have paid from June 3
to the day she filed the motion.
The motion was not heard for four months and, in the
interim, defendant paid the additional alimony, in August 2016,
although he subtracted from the amount he owed plaintiff her
share of joint taxes which defendant had paid on her behalf.
However, because defendant did not pay the $5200 sanction or the
$1975.50 counsel fee award, plaintiff declined to withdraw the
motion. Plaintiff also sought counsel fees for having to file
the second motion.
Defendant asserted the following in a certification he
filed in response to plaintiff's second motion. He pointed out
that, in the PSA, the parties agreed to file joint federal and
state tax returns for tax year 2014 and to equally split any
taxes owed. On June 9, 2016, defendant sent plaintiff an email
advising he had received a notice from the IRS informing the
parties they owed an additional $9511.90 in federal taxes for
tax year 2014, and such additional taxes were due July 6, 2016.
It is not clear when defendant received such notice. Defendant
also stated in his email to plaintiff that she should "look into 3 A-2639-16T2 this as you were the tax preparer, not me." Plaintiff never
responded and defendant paid the entire amount owed to the IRS.
Defendant certified that, although he had been informed the
previous March he would be receiving an annual bonus of $22,500,
he did not actually receive the bonus at that time. Defendant
did not state when in fact he received the bonus, but conceded
plaintiff was ostensibly entitled to $7425 of that bonus as her
2016 additional alimony.
Defendant further represented that, on July 18, 2016, he
gave his attorney a check for $1202 to send to plaintiff. He
claimed the latter sum represented plaintiff's percentage of his
annual bonus after deducting her share of the federal taxes he
paid to the IRS on her behalf, as well as taxes he also
discovered the parties owed to the State of New York for tax
year 2014.
Defendant also certified that he was unaware his attorney
had personal problems, which precluded him from practicing law
effectively. In fact, defendant's attorney closed his law
practice in the latter part of August. However, defendant
discovered that the attorney's secretary forwarded the check for
$1202 to the plaintiff's attorney on or about August 19, 2016.
Finally, defendant did not dispute he owed $1975.50 to plaintiff
4 A-2639-16T2 for the costs and fees she incurred to file the motion that
resulted in the May order.
On November 18, 2016, the court entered an order which,
among other things, denied plaintiff's request defendant be held
in violation of litigant's rights for failing to pay the $5200
sanction. The court also denied plaintiff the counsel fees she
incurred for having to file the second motion. In a written
opinion filed pursuant to Rule 2:5-1(b), the court stated it
denied enforcing the sanction because there was no evidence
defendant had been served with the May order and, thus, was
unaware he would be sanctioned if he did not pay the additional
alimony by June 3, 2016.
As for plaintiff's request she be awarded counsel fees for
having to file the second motion, the court found defendant had
not exhibited any bad faith even though he failed to pay the
additional alimony by June 3, 2016. According to the court,
defendant made "numerous attempts to satisfy his obligations
under their [PSA] which were enforced by the May 27, 2016 Order.
Husband . . . provided payment to Wife of what he thought he
owed her, as well as came to his current counsel to 'settle-up'
with Wife."
5 A-2639-16T2 II
On appeal, plaintiff contends the trial court erred when it
denied her request that defendant pay her the $5200 sanction.
She points out defendant never stated in his certification or
otherwise contended he had not been served with the May order;
therefore, she argues, the court's purported reason for denying
her the subject relief was unsupported by the record.
Plaintiff further maintains the court failed to provide
sufficient reasons for denying her request for counsel fees, and
improperly limited its evaluation of whether she was entitled to
counsel fees to a consideration of whether defendant acted in
bad faith. Plaintiff noted the court was obligated to consider
not only whether defendant had engaged in bad faith but also the
other factors in Rule 5:3-5(c). Such factors include, but are
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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-2639-16T2
DIANA ORLANDO,
Plaintiff-Appellant,
v.
JOSEPH ORLANDO,
Defendant-Respondent. _____________________________
Submitted April 9, 2018 – Decided August 16, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1569-15.
Villani & DeLuca, PC, attorneys for appellant (Benjamin M. Hoffman, on the briefs).
Keith, Winters & Wenning, LLC, attorneys for respondent (Brian D. Winters, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Diana
Orlando appeals from a November 18, 2016 Family Part order
denying her request that defendant Joseph Orlando be sanctioned
for failing to make certain alimony payments, and that he pay her counsel fees. We vacate the order under review and remand
for further proceedings.
I
In August 2015, the parties divorced after entering into a
property settlement agreement (PSA). Under the PSA, defendant
is obligated to pay plaintiff $4000 per month in alimony and, as
it is termed in the PSA, "additional alimony," which is $6000
per year or thirty-three percent of defendant's annual bonus,
whichever sum is greater. The PSA specifically states defendant
usually receives his annual bonus in February or March of each
year.
Defendant did not pay plaintiff the additional alimony in
March 2016, and ignored plaintiff's requests that he do so,
necessitating plaintiff file a motion to enforce payment of his
share of his annual bonus. On May 27, 2016, the court entered
an order (May order) providing, in relevant part, that defendant
pay plaintiff the additional alimony by June 3, 2016 and, if he
failed to do so, pay $100 per day as a sanction until he did.
The order also directed defendant to pay plaintiff $1975.50 for
the costs and counsel fees she incurred to prosecute the motion.
Defendant failed to pay the additional alimony by June 3
and, thereafter, did not pay the $100 per day sanction. He also
did not pay plaintiff the $1975.50 costs and counsel fee award. 2 A-2639-16T2 On July 25, 2016, plaintiff filed a motion to hold defendant in
violation of litigant's rights, see Rule 1:10-3, and to enforce
the May order. As for the $100 per day sanction, plaintiff
sought $5200, the amount defendant should have paid from June 3
to the day she filed the motion.
The motion was not heard for four months and, in the
interim, defendant paid the additional alimony, in August 2016,
although he subtracted from the amount he owed plaintiff her
share of joint taxes which defendant had paid on her behalf.
However, because defendant did not pay the $5200 sanction or the
$1975.50 counsel fee award, plaintiff declined to withdraw the
motion. Plaintiff also sought counsel fees for having to file
the second motion.
Defendant asserted the following in a certification he
filed in response to plaintiff's second motion. He pointed out
that, in the PSA, the parties agreed to file joint federal and
state tax returns for tax year 2014 and to equally split any
taxes owed. On June 9, 2016, defendant sent plaintiff an email
advising he had received a notice from the IRS informing the
parties they owed an additional $9511.90 in federal taxes for
tax year 2014, and such additional taxes were due July 6, 2016.
It is not clear when defendant received such notice. Defendant
also stated in his email to plaintiff that she should "look into 3 A-2639-16T2 this as you were the tax preparer, not me." Plaintiff never
responded and defendant paid the entire amount owed to the IRS.
Defendant certified that, although he had been informed the
previous March he would be receiving an annual bonus of $22,500,
he did not actually receive the bonus at that time. Defendant
did not state when in fact he received the bonus, but conceded
plaintiff was ostensibly entitled to $7425 of that bonus as her
2016 additional alimony.
Defendant further represented that, on July 18, 2016, he
gave his attorney a check for $1202 to send to plaintiff. He
claimed the latter sum represented plaintiff's percentage of his
annual bonus after deducting her share of the federal taxes he
paid to the IRS on her behalf, as well as taxes he also
discovered the parties owed to the State of New York for tax
year 2014.
Defendant also certified that he was unaware his attorney
had personal problems, which precluded him from practicing law
effectively. In fact, defendant's attorney closed his law
practice in the latter part of August. However, defendant
discovered that the attorney's secretary forwarded the check for
$1202 to the plaintiff's attorney on or about August 19, 2016.
Finally, defendant did not dispute he owed $1975.50 to plaintiff
4 A-2639-16T2 for the costs and fees she incurred to file the motion that
resulted in the May order.
On November 18, 2016, the court entered an order which,
among other things, denied plaintiff's request defendant be held
in violation of litigant's rights for failing to pay the $5200
sanction. The court also denied plaintiff the counsel fees she
incurred for having to file the second motion. In a written
opinion filed pursuant to Rule 2:5-1(b), the court stated it
denied enforcing the sanction because there was no evidence
defendant had been served with the May order and, thus, was
unaware he would be sanctioned if he did not pay the additional
alimony by June 3, 2016.
As for plaintiff's request she be awarded counsel fees for
having to file the second motion, the court found defendant had
not exhibited any bad faith even though he failed to pay the
additional alimony by June 3, 2016. According to the court,
defendant made "numerous attempts to satisfy his obligations
under their [PSA] which were enforced by the May 27, 2016 Order.
Husband . . . provided payment to Wife of what he thought he
owed her, as well as came to his current counsel to 'settle-up'
with Wife."
5 A-2639-16T2 II
On appeal, plaintiff contends the trial court erred when it
denied her request that defendant pay her the $5200 sanction.
She points out defendant never stated in his certification or
otherwise contended he had not been served with the May order;
therefore, she argues, the court's purported reason for denying
her the subject relief was unsupported by the record.
Plaintiff further maintains the court failed to provide
sufficient reasons for denying her request for counsel fees, and
improperly limited its evaluation of whether she was entitled to
counsel fees to a consideration of whether defendant acted in
bad faith. Plaintiff noted the court was obligated to consider
not only whether defendant had engaged in bad faith but also the
other factors in Rule 5:3-5(c). Such factors include, but are
not limited to, the parties' financial circumstances and their
ability to pay their own or the other party's counsel fees. She
argues the latter factor is significant because defendant makes
close to $200,000 per year and she makes only $48,000 per year,
plus defendant's share of his annual bonus.
We first address plaintiff's contention the court erred by
failing to enforce the sanction. Our review of the record
reveals defendant never stated in his certification that he had
not been served with this order. The crux of defendant's 6 A-2639-16T2 opposition to paying the sanction was he encountered delays that
excused his late payment of the additional alimony.
Specifically, he suggested the discovery that the parties owed
back taxes, his efforts to persuade plaintiff to contribute
toward such debt, and his attorney's failure to attend to this
matter and mail out defendant's check to plaintiff excused him
from having to pay the additional alimony on June 3, 2016 and,
thus, he should not have to pay a sanction.
We note the nature of the relief plaintiff sought in her
second motion was that defendant be held in violation of
litigant's rights, and ordered to pay the sanction of $5200.
Before relief can be granted pursuant to Rule 1:10-3, a court
must determine if the delinquent party willfully violated the
order alleged to have been violated. See In re N.J.A.C. 5:96 &
5:97, 221 N.J. 1, 18 (2015); Schochet v. Schochet, 435 N.J.
Super. 542, 548-49 (App. Div. 2014); Pressler & Verniero,
Current N.J. Court Rules, cmt. 4.3 on R. 1:10-3 (2018) ("Before
punitive or coercive relief can be afforded, the court must be
satisfied that the party had the capacity to comply with the
order and was willfully contumacious.").
If defendant's failure to pay the additional alimony by
June 3, 2016 was not willful but excusable, then enforcing the
sanction and imposing additional counsel fees to enforce the May 7 A-2639-16T2 order may not be warranted. However, the trial court did not
determine whether defendant's actions in failing to pay the
additional alimony until August 2016 was contumacious and, in
our view, could not have done so from this record. There was
insufficient evidence about when defendant received his bonus,
when he learned of the tax deficiencies, and whether he was in
fact precluded from making the additional alimony payment by
June 3, 2016. Therefore, we must remand this matter so the
court may make a finding on whether defendant's conduct was
excusable and not contumacious. We leave to the court's
discretion whether a plenary hearing is required.
On the issue of counsel fees, even if defendant did not act
willfully, plaintiff may be entitled to fees on other grounds.
On remand, the court must consider all of the factors in Rule
5:3-5(c) and determine if defendant is obligated to contribute
toward plaintiff's fees.
The November 18, 2016 order is vacated and this matter
remanded for proceedings consistent with this opinion. We do
not retain jurisdiction.
8 A-2639-16T2