Leavengood v. Leavengood

Citations: 339 N.J. Super. 87; 770 A.2d 1252; 2001 N.J. Super. LEXIS 147

Court: New Jersey Superior Court Appellate Division; April 6, 2001; New Jersey; State Appellate Court

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The court, represented by FALL, J.A.D., addressed a post-judgment matrimonial appeal involving plaintiff Leila Lore Leavengood's request for increased child support from defendant John M. Leavengood. Previously, the court had determined that the Family Part lacked jurisdiction over this matter (Leavengood v. Leavengood, A 5637-96T1, July 22, 1998). The defendant is appealing a January 21, 2000 order that denied his motion for repayment of counsel fees paid to plaintiff's attorney, Charles Resnick, under an earlier Family Part order that was subsequently reversed.

The couple married in Florida in 1978 and had one child, born in 1981. Following their 1983 divorce in Florida, custody was awarded to the plaintiff, and the defendant was ordered to pay $200 weekly in child support, later increased by a Florida court to $300. After relocating to New Jersey in 1984, the plaintiff engaged Resnick in 1996 to seek jurisdiction for child support matters in New Jersey, agreeing to a payment plan for his legal services. Resnick filed a complaint in New Jersey on August 5, 1996, to establish jurisdiction, where the plaintiff sought increased child support and other related financial provisions. The defendant contested jurisdiction and sought dismissal, claiming the plaintiff's actions were frivolous, while the plaintiff cross-moved to register the Florida divorce judgment in New Jersey. The Family Part ultimately denied the defendant's motion and granted the plaintiff's request to register the Florida orders. Following this, the plaintiff sought further financial support, including an increase in child support and other expenses related to their child.

Defendant requested a stay from the trial court regarding a November 15, 1996, order while awaiting a decision on his appeal application. The Family Part denied the stay on December 19, 1996. Subsequently, a temporary stay was granted on January 2, 1997, but it was dissolved on January 9, 1997, along with a denial of the appeal motion. On January 22, 1997, the application for a stay pending a Supreme Court appeal was also denied, though it was noted that any opposition by the defendant in the Family Part would not affect his jurisdictional challenge.

On May 8, 1997, the Family Part increased defendant’s child support obligation to $450 weekly and ordered him to pay $11,764 in counsel fees to plaintiff's attorney, Charles G. Resnick, at a rate of $500 per month. Concerns regarding potential reimbursement of these fees were raised by defendant’s counsel, to which Resnick assured compliance with any future orders. Defendant appealed the May 8 order on June 11, 1997, challenging the Family Part's jurisdiction, and plaintiff filed a cross-appeal for increased child support and counsel fees.

An unpublished opinion reversed the May 8 order due to the Family Part's lack of subject-matter jurisdiction and dismissed the cross-appeal. On September 8, 1998, the application for counsel fees on appeal was denied. Following this, on November 9, 1998, plaintiff sought emergency relief in Florida, alleging defendant's failure to pay child support. In response, on November 12, 1998, defendant requested repayment of $7,500 in counsel fees paid to Resnick. 

The Florida court scheduled a hearing for December 17, 1998, regarding plaintiff's request. On December 8, 1998, the prior counsel fee award was vacated, and $7,500 was ordered to be repaid to defendant. Subsequently, defendant filed a counter-petition in Florida, claiming he overpaid child support and sought a judgment against plaintiff for $25,412, including the $7,500 counsel fees. On December 15, 1998, plaintiff moved in Florida to compel payment of child support arrears.

On December 22, 1998, the Florida court found that the defendant was obligated to pay $15,600 annually in support, totaling $46,800 owed for the years 1996 to 1998. The plaintiff acknowledged that the defendant paid $53,250 during that period, resulting in an overpayment of $6,450. The court denied the plaintiff's urgent application but reserved jurisdiction for future orders. On January 13, 1999, the defendant sought to dismiss the plaintiff's petition, which she opposed. A settlement agreement led to the dismissal of both parties' petitions on February 8, 1999, after they expressed a desire to voluntarily dismiss their actions with prejudice. Subsequently, the child moved to Florida to live with the defendant. On March 15, 1999, the defendant requested reimbursement of $7,500 in attorney fees from the plaintiff. During the May 7, 1999 hearing, it was revealed that the plaintiff's attorney, Resnick, was no longer representing her due to a lawsuit she filed against him. Resnick stated he was owed over $22,000, with the plaintiff making payments of $50 monthly, leaving a balance of $12,150 after crediting the $7,500. The judge adjourned the matter for further certifications. The plaintiff later contended she relied on Resnick's advice regarding child support and disclosed her financial difficulties. Resnick contested her claims, citing evidence of their ongoing disputes. On August 3, 1999, the plaintiff argued that the defendant should have sought the $7,500 refund in Florida courts, referencing the prior voluntary dismissal. During a hearing on August 27, 1999, the judge questioned whether the dismissal affected the $7,500 claim, while the defendant's attorney asserted that the dismissal only pertained to child support applications and arrears.

The motion judge concluded that the $7,500 was part of the Counter Petition for a Money Judgment and included in the agreed dismissal of claims between the parties. The judge indicated a tentative order to dismiss the motion for repayment of the $7,500, reflecting that both parties had dismissed all actions with prejudice, including the counsel fee issue. A letter opinion on January 5, 2000, confirmed that all issues, including the counsel fee, were dismissed by the Florida court. The January 21, 2000 order denied the defendant's application for repayment, as he failed to demonstrate that he did not withdraw his claim for the $7,500 with prejudice. Even if the original order was reversed, the obligation to repay would fall to the plaintiff, not Resnick, as Resnick was providing services to the plaintiff. The judge emphasized that the defendant was fulfilling a portion of the plaintiff's obligation to Resnick, and it is standard practice that an attorney is not required to refund fees if a court order directing payment is later reversed. The decision was affirmed, noting that records of the Florida proceedings were not available in this case.