D'Atria v. D'Atria
| Decision Date | 28 March 1990 |
| Citation | 242 N.J.Super. 392,576 A.2d 957 |
| Parties | Mirella D'ATRIA, Plaintiff, v. John D'ATRIA, Defendant. |
| Court | New Jersey Superior Court |
Lewis Carroll
The post-judgment application before the Court involves 1) a return of an Order to Show Cause 1, 2) a joint application for reconsideration, and 3) three motions in aid of litigant's rights pursuant to R. 1:10. The issues stem from the convoluted Dual Judgment of Divorce of July 20, 1989 and its incorporated Property Settlement Agreement. Reduced to their essences, the issues exist because of the perception by the parties of continued mutual betrayal, and the murky equitable distribution package arranged through their short-lived compromise. The issues are complicated because of an appeal in the Superior Court of New Jersey, Appellate Division, and proceedings in the United States Bankruptcy Court for the Southern District of New York.
On the eve of Christmas Eve, this Court signed an Order to Show Cause, together with a mandatory injunction, which set a visitation schedule for the parties and their two children for the Christmas holidays (Christmas Eve and Christmas Day 2). Also incorporated in that Order to Show Cause was a provision permitting an application to modify the July 20, 1989 Judgment of Divorce to provide for a specific visitation schedule, rather than the ambiguous and undefined provision that:
3
The return date for consideration of a new plan for visitation was adjourned from time to time, until it finally was reached for initial disposition on February 16, 1990. Restrictive Covenant
The Property Settlement Agreement effectuated an unconventional distribution of assets, which required the transfer of some assets to the plaintiff from a corporate business entity (455 Realty Corp.) owned by the defendant. The defendant is also the owner of Showcase Tile, Inc., a retail and wholesale distributor of floor and wall tiles, which (either directly or through affiliates) operates a number of stores in the New York/New Jersey metropolitan area. The plaintiff belongs to a family that similarly (and competitively) operates a chain of ceramic and marble tile stores, the so-called Fuda Tile enterprise. 4
The Property Settlement Agreement provided, in pertinent part, that defendant, in addition to transferring personal assets, agreed to transfer assets from, and to make agreements on behalf of, Showcase Tile, Inc. and its affiliates. The most significant agreement of this nature was defendant's 5 promise not to "operate a ceramic tile store within a seven mile geographical radius from any presently owned Fuda Tile location...."
On November 13, 1989, a "Revised Order to Show Cause" was signed by Judge Kahn which temporarily enjoined defendant (but not defendant's corporations) from, among other things, performing certain actions which were arguably contrary to the Property Settlement Agreement's restrictive covenant. Prior thereto, on November 2, 1989, Judge Kahn had enjoined not only defendant, but also Showcase Tile, Inc. from any activities which were competitive with Fuda Tile. 6 The original Order to Show Cause was modified as to Showcase Tile, Inc. when it became apparent that the corporation was the subject of bankruptcy proceedings in the United States Bankruptcy Court for the Southern District of New York. Defendant has been named debtor-in-possession, and at present apparently continues to operate the Showcase Tile businesses.
Judge Kahn recused himself from further proceedings on the original and revised Orders to Show Cause (for reasons not here pertinent), and this Court was assigned to dispose of plaintiff's request for enforcement of the restrictive covenant as to defendant, individually. On January 19, 1990, this Court determined that 1) there were no genuine issues of material fact in dispute as to the distance (seven miles) from Showcase Tile's new Paramus store to the nearest operating Fuda Tile store and 2) the distance--a radius of seven miles--was to be measured in a straight line from store to store, and not by highway driving 7. Based upon these findings, the Court entered an Order which permanently enjoined defendant from acting as an officer, director, or employee of any corporation which operates a ceramic tile store in violation of the Property Settlement Agreement. The Court tried to carefully segregate the roles of defendant which it was affecting. For example, no Order was entered which precluded defendant from acting in the capacity of debtor-in-possession under the direction and control of the Bankruptcy Court.
On February 2, 1990, an appeal to the Superior Court of New Jersey, Appellate Division was filed by defendant from this permanent injunction. Also, an application was made in the Bankruptcy Court for relief from this Court's Order, but the request was withdrawn. At the present time, there are no Orders of the Bankruptcy Court affecting this Court's Order of January 19, 1990.
Notwithstanding the January 19, 1990 permanent injunction, the Showcase Tile store in Paramus was fitted up, and has opened for business. Although there is no direct evidence that defendant has, himself, been seen in the store acting in a management capacity, the only logical conclusion to be drawn from the fact that this outlet is now operating, is that defendant had a hand in effectuating such action. Any contrary argument would, at least, reveal defendant's abdication of his role as debtor-in-possession. At most, it suggests defendant's status as an employee and beyond.
On February 16, 1990, this Court was requested to not only consider the unfinished application regarding visitation (which had been pending since December, 1989), but a new enforcement initiative was made by plaintiff to try to enforce additional provisions of the Property Settlement Agreement, together with the following ancillary requests:
1. directing defendant to make support payments through the local probation department, (Cf. R. 5:7-4.;
2. directing defendant to provide transportation for all visitation transfers;
3. directing defendant to provide plaintiff with a telephone number when defendant has custody of the children during ordinary visitation.
The enforcement proceeding involved claims that defendant had failed to honor two provisions of the Property Settlement Agreement by which plaintiff is entitled to collect $80,000.00 and $17,500.00 from defendant.
When, in late January and early February, 1990, it became apparent to plaintiff that defendant appeared to be violating the January 19, 1990 Order of this Court, Plaintiff filed a motion to "impose monetary sanctions" upon the defendant, because of his alleged contumacious behavior. This motion was argued, for the first time, on March 16, 1990.
Not to be outdone by this parade of motions, defendant filed an application returnable on March 16, 1990 in aid of litigant's rights which sought an order:
1. compelling plaintiff to cease and desist from using the name "D'Atria" in any fashion; and
2. directing plaintiff to cease harassing and molesting defendant's new family by telephone, in person, or by mail.
On February 16, 1990, the only issues before the Court involved visitation and the relief sought in the "First Motion in Aid of Litigant's Rights." The Court denied both applications, without prejudice, on the strength of R. 2:9-1(a) 8, which precludes a trial court from exercising jurisdiction (without appropriate instructions) while an appeal is pending. Notwithstanding that some of the relief sought by plaintiff's motion was claimed to be pursuant to R. 1:10 (which would have enabled the Court to act, even in the face of an appeal), and the visitation issues had germinated long before the February 2, 1990 appeal, the Court declined jurisdiction, and urged the parties to seek the complete relief available in the Appellate Division by moving there for instructions 9.
Instead of waiting for the Appellate Division's remand or order of instructions, defendant filed a conventional motion for reconsideration here. In a fleeting episode of agreement, both parties have joined in urging this Court to reconsider its declination of jurisdiction as to the February 16, 1990 issues. Thus, on March 16, 1990 the Court considered all of the issues presented, without prejudice to it again refusing to act until and unless the Appellate Division so authorizes. For the reasons which follow, the Court has reconsidered its original demurral, and as to those genuine applications to enforce litigant's rights (R. 1:10), disposition shall be afforded. As to those issues which are not truly within the umbrella of R. 1:10, the Court again shall defer decision until instructed to act by the Appellate Division. 10
The initial determinations which must be made are the questions of reconsidering the Court's refusal to act on the visitation question, and the request for relief made in the "First Motion in Aid of Litigant's Rights."
Neither party has presented any new facts which were not before the Court previously. Reconsideration is a matter within the sound...
To continue reading
Request your trial
- Branch v. Dairy
- Strauss v. Township of Holmdel
- Carlucci v. Carlucci
- Stanislaus Food Prods. Co. v. Dir., Div. of Taxation