Bisbing v. Bisbing
| Decision Date | 07 July 2021 |
| Docket Number | DOCKET NO. A-0138-20 |
| Citation | 468 N.J.Super. 112,255 A.3d 1240 |
| Parties | Jaime Taormina BISBING, Plaintiff-Appellant, v. Glenn R. BISBING, III, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
McNally & Associates, LLC, attorneys for appellant (Stephen B. McNally, on the briefs).
Einhorn, Barbarito, Frost & Botwinick, PC, attorneys for respondent (Matheu D. Nunn, Denville, and Jessie M. Mills, on the brief).
Before Judges Fuentes, Whipple and Rose.
The opinion of the court was delivered by
WHIPPLE, J.A.D.
In this post judgment matrimonial appeal, we consider whether a trial court may determine that plaintiff's obligation to pay defendant $425,000, previously awarded in counsel fees, was non-dischargeable as a family support obligation in any federal bankruptcy proceeding1 pursuant to 11 U.S.C. § 523(a)(5) (Section 5). Plaintiff, Jaime Taormina Bisbing, appeals from the July 31, 2020 Family Part order deeming the counsel fees non-dischargeable under Section 5. For the reasons expressed by Judge Michael C. Gaus in his thorough, well-supported, written decision submitted with the order, we affirm.
The background of this case was exhaustively discussed in Bisbing v. Bisbing, 230 N.J. 309, 312-13, 166 A.3d 1155 (2017).
There, the Supreme Court announced the rule that in all contested relocation disputes where the parents share legal custody, a best interest analysis is required to determine cause under N.J.S.A. 9:2-2 to authorize moving a child out of state, by weighing the factors of N.J.S.A. 9:2-4 and other relevant considerations. We need only repeat what is necessary to address the issues here.
The parties divorced in April 2014. One year later, plaintiff sought to relocate the children to Utah. Through this case's progeny, the Supreme Court directed a remand to determine if the relocation was in the children's best interests under the new standard. And subsequently, to determine counsel fees in defendant's favor. On remand, Judge Gaus held a plenary hearing and concluded the relocation was not in the children's best interests. He entered an order and a nearly two-hundred-page comprehensive opinion on June 25, 2019. Defendant was awarded $425,000 in counsel fees. Plaintiff did not appeal that order.
In October 2019, defendant moved to enforce the counsel fee award, but the motion was dismissed without prejudice. During that time, plaintiff filed two Chapter 13 bankruptcy petitions in the United States Bankruptcy Court for the District of New Jersey, which were later dismissed in March 2020. Thereafter, the court reinstated defendant's October 2019 motion and ruled on June 1, 2020, that the counsel fee award was non-dischargeable in bankruptcy under 11 U.S.C. § 523(a)(15) (Section 15). Again, plaintiff did not appeal.
Defendant then filed another motion seeking to have the fees deemed non-dischargeable under Section 5, and plaintiff simultaneously moved for reconsideration of the June 1, 2020 order. The court entered an order the next month, finding the fee award non-dischargeable under Section 5. Plaintiff appealed that order, which now commands our focus.
As Judge Gaus's ruling is based on construction of law, our review is de novo: "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).
The court granted defendant's request that the initial counsel fee award also be deemed non-dischargeable under Section 5, together with those fees awarded in the June 1, 2020 order. In granting this request, the motion judge undertook a thorough survey of relevant jurisprudence on the intersection of state family law and federal bankruptcy law. Relying on In Re Maddigan, 312 F.3d 589, 596 (2d Cir. 2002), the court held that whether an obligation is in the nature of support under Section 5 requires "broad interpretation" of the meaning of support, and that the substance of the liability controls.
The court found that the counsel fee award "is of the nature and substance of a domestic support obligation," such that the award is non-dischargeable under Section 5. The court denied plaintiff's request for reconsideration of the June 1, 2020 order, holding the counsel fee award would be non-dischargeable pursuant to Section 15. Plaintiff alleged this denial was based on a "mistake, and a misstatement of the court's intention" and resulted in "blanket non-dischargeability."
Plaintiff argues that the court erred by entering an advisory opinion, which are disfavored, because no bankruptcy action was pending at the time of the July 31, 2020 order. We reject that argument.
The court separately ruled that plaintiff's counsel fee obligation was non-dischargeable under both Sections 5 and 15. It is true, at the time of these orders, plaintiff's two bankruptcy petitions had been dismissed. However, the court reasoned that no bankruptcy petition needed to be pending as a prerequisite to a court determining the dischargeability of a fee award, citing plaintiff's two prior petitions and the ongoing fee dispute, which "convince[d]" the court that it could decide non-dischargeability.
New Jersey courts avoid rendering advisory opinions or functioning in the abstract. Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107, 275 A.2d 433 (1971) ; N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240, 69 A.2d 875 (1949). We do not render recommendations, but rather, "decide only concrete contested issues conclusively affecting adversary parties in interest." Parsons, 3 N.J. at 240, 69 A.2d 875. Our courts will adjudicate those matters where the "litigant's concern with the subject matter evidenced a sufficient stake and real adverseness." Crescent Park, 58 N.J. at 107, 275 A.2d 433.
Judge Gaus's order was not advisory. Nor was it novel. We have previously rendered opinions on non-dischargeability without a pending bankruptcy action. In Larbig v. Larbig, 384 N.J. Super. 17, 25, 894 A.2d 1 (App. Div. 2006), we analyzed whether language in a property settlement designating an obligation as non-dischargeable rendered the payments as "alimony, maintenance, or support" despite the lack of a pending bankruptcy proceeding.
Plaintiff's attempt to avoid paying the counsel fee award was not an abstract dispute but was appreciable at the time of the court's order. Plaintiff had already filed for bankruptcy twice by July 31, 2020. It was beyond debate that she was seeking a discharge of her obligation under the counsel fee award. While it is true the petitions had been dismissed at the trial level at the time of the order, the court reasonably concluded that in light of the ongoing controversy, defendant should be protected from any subsequent attempts to pursue bankruptcy or otherwise discharge this valid debt.
Despite the lack of a pending bankruptcy proceeding, there was clearly an ongoing dispute as to the payment of counsel fees, which presented an actual controversy over which the trial court had jurisdiction. Further, plaintiff herself raised the non-dischargeability of the counsel fee award before the court when she filed a motion for reconsideration of the June 1, 2020 order. We conclude, as Judge Gaus did, the lack of a filed bankruptcy action does not bar review of non-dischargeability when the record itself presupposes it, as it did here.
We also reject plaintiff's next argument that the trial court erred in finding the counsel fee award was a non-dischargeable support obligation. After awarding defendant counsel fees, the court granted defendant's motion seeking to have the fees deemed non-dischargeable under Section 15, and thus non-dischargeable in individual bankruptcies other than Chapter 13 filings. The record does not fully include the court's rationale for this award, but it reflects that the court stated defendant could file a subsequent motion seeking non-dischargeablity under Section 5.
Thereafter, defendant moved to establish the award's non-dischargeablity as a domestic support obligation under Section 5, and the court granted the relief, rendering the fee award non-dischargeable in all bankruptcy filings. The judge relied on our decision in Orlowski v. Orlowski, 459 N.J. Super. 95, 107-08, 208 A.3d 1 (App. Div. 2019), wherein we observed that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 :
The Orlowski court, in addressing the enforcement of the counsel fee and forensic accountant awards through a qualified domestic relations order, cited to the holding from In Re Gruber, 436 B.R. 39, 43-44 (Bankr. N.D. Ohio 2010), that "a court-ordered obligation to pay an ex-spouse's counsel fees in matrimonial proceedings is a non-dischargeable domestic support obligation." Orlowski, 459 N.J. Super. at 108, 208 A.3d 1 (citing Gruber, 436 B.R. at 44 ).
The court here relied on Orlowski, and federal bankruptcy case law to support the proposition that counsel fee awards in matrimonial actions were domestic support obligations and thus non-dischargeable under Section 5. The judge bolstered his conclusion by finding the funds defendant expended here could have been used for the children's direct benefit by paying for tuition, child support, and other needs. He held the award had the ultimate effect of providing the parties' children with necessary support.
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