Piccione v. Piccione, DOCKET NO. A-4376-19
| Decision Date | 09 April 2021 |
| Docket Number | DOCKET NO. A-4376-19 |
| Parties | GALE L. PICCIONE, Plaintiff-Respondent, v. CHARLES S. PICCIONE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Ostrer and Vernoia.
On appeal before the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-0304-08.
William E. Mandry, attorney for appellant.
Florio Perrucci Steinhardt, Cappelli, Tipton & Taylor, LLC, attorneys for respondent (Donald E. Sounders, Jr. and Ruby Khallouf, of counsel and on the brief).
This post-judgment matrimonial matter arises out of defendant Charles S. Piccione's alleged failure to pay the $2,500 monthly alimony due to plaintiff Gale L. Piccione under a property settlement agreement (PSA) incorporated in the parties' dual judgment of divorce, and defendant's alleged failure to pay alimony arrears in accordance with a June 14, 2019 Family Part order we recently affirmed on defendant's appeal. Piccione v. Piccione, No. A-5086-18 (App. Div. Feb. 23, 2021) (slip op. at 18). Defendant presently appeals from a June 5, 2020 order finding him in violation of litigant's rights for failing to pay alimony; directing he pay $32,254.48 in alimony arrears within sixty days; awarding plaintiff $4,500 in attorney's fees; and denying defendant's cross-motions. Defendant also appeals from a July 24, 2020 order denying his motion for reconsideration. Unpersuaded by the arguments supporting defendant's appeal, we affirm.
In a June 14, 2019 order, the Family Part denied defendant's motion to terminate his $2,500 per month alimony obligation to plaintiff and granted plaintiff's cross-motion to compel defendant to pay $7,581.40 in alimony arrears and $1,921 for plaintiff's attorney's fees. Defendant did not request a stay of theorder. Defendant appealed from the order, and we affirmed. Piccione, slip op. at 18.
Subsequent to the entry of the June 14, 2019 order, the Warren County Probation Division moved to enforce litigant's rights by compelling defendant's payment of alimony arrears.1 The motion was made returnable on August 19, 2019. After the motion was filed, defendant appealed from the June 14, 2019 order and requested an adjournment of the August 19, 2019 motion hearing. The court denied the adjournment request.
On August 13, 2019, the Probation Division issued a "N[otice of] P[roceeding] C[ancellation]" letter advising that the August 19, 2019 motion hearing was cancelled. In an August 19, 2019 letter to the Probation Division, defendant's counsel confirmed a telephone conversation during which he was advised the motion hearing was cancelled because the "underlying" June 14, 2019 order was "on appeal."
More than eight months later, and while defendant's appeal from the June 14, 2019 order was still pending, plaintiff moved for aid in relief of litigant's rights, claiming defendant continued to fail to pay alimony in accordance withthe PSA and requesting an order directing that defendant pay $32,254.48 in alimony arrears as well as plaintiff's attorney's fees.
Defendant cross-moved for dismissal of plaintiff's motion, arguing the court lacked jurisdiction to order payment of alimony and alimony arrears under Rule 2:9-1(a) because his appeal from the June 14, 2019 order was pending. Defendant also cross-moved for a stay of the June 14, 2019 order; a stay of any order "entered by [the] . . . [c]ourt if the relief requested [by] defendant[] . . . is denied"; and an attorney's fee award. Plaintiff filed a certification in opposition to the cross-motion, "emphasiz[ing]" defendant never sought or obtained a stay of the June 14, 2019 order.
Judge Haekyoung Suh heard arguments on the motions and issued a detailed written decision finding defendant violated the PSA by failing to pay alimony; compelling defendant to pay $32,254.48 in alimony arrears within sixty days; directing defendant to "resume paying his alimony obligation immediately"; and awarding plaintiff $4,500 in counsel fees. The court also denied defendant's cross-motions.
Judge Suh found defendant failed to comply with the June 14, 2019 order directing payment of alimony arrears and failed to pay the $2,500 in monthly alimony required by the PSA. Judge Suh rejected defendant's claim the courtlacked jurisdiction to hear plaintiff's motion. Judge Suh noted the court had "continuing jurisdiction" under Rule 2:9-1(a) "to enforce judgments and orders when a motion is brought under [Rule] 1:10 unless that order or judgment has been stayed." Judge Suh further found that although defendant requested a stay of the June 14, 2019 order in his cross-motion, a stay of the order had not been granted. The judge also noted that plaintiff did not seek enforcement only of the June 14, 2019 order; plaintiff also requested enforcement of defendant's alimony obligation under the PSA.
The court denied defendant's motion for a stay of the June 14, 2019 order. Judge Suh found defendant failed to demonstrate: a stay was necessary to prevent irreparable harm; he had a likelihood of success on the merits of his appeal from the June 14, 2019 order; and he would suffer a greater hardship than plaintiff if a stay was not granted.
The court made detailed findings supporting its decision to award plaintiff $4,500 for her attorney's fees. In part, the court noted that defendant claimed he was permanently disabled, but he did not provide any information concerninghis current income. The court also observed "that defendant earned $525,541 in 2018."2
The court entered a June 5, 2020 order granting plaintiff's motions and denying defendant's cross-motions. Defendant moved for reconsideration of the order, correction of a "clerical error" in the Probation Division's August 19, 2019 Notice of Proceeding Cancellation, and a plenary hearing on whether he violated the June 14, 2019 order. Defendant argued the court should correct the Notice of Proceeding Cancellation to reflect entry of a stay pending appeal of the June 14, 2019 order, and that the court should then reconsider its June 5, 2020 order in light of the stay that should have been reflected in the Notice of Proceeding Cancellation. Defendant also claimed the court erred in its June 5, 2020 determination of his ability to pay plaintiff's attorney's fees by considering his 2018 income because it included monies from defendant's pension, which he obtained in the equitable distribution of property in the parties' divorce.
Plaintiff filed a cross-motion to enforce litigant's rights requesting an order requiring defendant's compliance with the June 14, 2019 and June 5, 2020 orders, and requesting an additional attorney's fee award.
Following oral arguments on the motions, Judge Suh issued another detailed written decision denying defendant's motions and granting plaintiff's cross-motion. Judge Suh rejected defendant's motion to correct the Notice of Proceeding Cancellation to reflect a stay of the June 14, 2019 order. The court explained:
[T]here was no clerical error in the Notice of Proceeding Cancellation dated [August 13], 2019. The cancellation of the enforcement proceeding is not equivalent to a stay of the June 14, 2019 [o]rder. Counsel's confirming letter to the probation department does not prove that the Notice of Proceeding Cancellation was equivalent to a stay of the June 14, 2019 [o]rder.
Judge Suh also rejected defendant's claim the court erred in its determination of his alimony obligation by considering income from assets he obtained in equitable distribution. The court found it lacked jurisdiction to address defendant's alimony obligation under the PSA because that issue was before this court on defendant's appeal from the June 14, 2019 order. For the same reason, Judge Suh determined defendant was not entitled to the requested plenary hearing on the amount of his monthly alimony obligation. The court determined that while the appeal from the June 14, 2019 order was pending, its jurisdiction under Rule 2:9-1(a) was limited to the enforcement of the parties'obligations under the PSA, the June 14, 2019 order, and any other applicable orders.
Judge Suh entered a July 24, 2020 order denying defendant's motions; granting plaintiff's cross-motion in aid of litigant's rights; directing that defendant pay $32,254.48 in alimony arrears within thirty days; requiring that defendant pay the attorney's fees awarded in the June 14, 2019 and June 5, 2020 orders within thirty days; and granting plaintiff's new request for counsel fees in the amount of $3,870.
Defendant appeals from the court's June 5, 2020 and July 24, 2020 orders. On appeal, he presents the following arguments for our consideration:
Having carefully considered defendant's arguments in light of the record and the applicable legal principles, we are convinced they are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We affirm the court's orders substantially for the reasons set forth in Judge Suh's respective written decisions accompanying the June 5, 2020 and July 24, 2020 orders. We add the following comments.
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