THERESA F. COHEN VS. LARRY J. COHEN (FM-14-641-11, MORRIS COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0426-15T1
THERESA F. COHEN,1
Plaintiff-Appellant,
v.
LARRY J. COHEN,
Defendant-Respondent.
_____________________________________________________
Submitted May 9, 2017 – Decided May 18, 2017
Before Judges Fisher and Ostrer.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Morris
County, Docket No. FM-14-641-11.
Theresa Fiocca, appellant pro se.
Jeney, Jeney & O'Connor, attorneys for
respondent (Robert J. Jeney, Jr., on the
brief).
PER CURIAM
The parties were married in 1978, had three children, and
were divorced in 2013. Incorporated into the divorce judgment was
1
Now, Theresa Fiocca (hereafter, plaintiff).
a property settlement agreement (PSA), which required dissolution
of a life insurance trust. The PSA obligated plaintiff's counsel
to "take all steps necessary to dissolve the [t]rust, and the
parties [agreed to] cooperate in any way necessary" to accomplish
this desire. The PSA also contained the parties' "represent[ation]
and agree[ment]" that they had, during their marriage, "sought and
utilized the advice and services" of another attorney "regard[ing]
setting up the [t]rust" and that they "mutually agree[d] to seek"
that attorney's "input," if necessary, "in order to achieve the
[trust's] dissolution."
For more than six months plaintiff and her attorney failed
to dissolve the trust. Consequently, defendant Larry J. Cohen
moved, pursuant to Rule 1:10-3, for the enforcement of his rights.
On June 26, 2014, the trial court entered an order that called for
the dissolution of the trust; the judge appointed an attorney to
accomplish this, and the order compelled the parties to sign a
retainer for that attorney's services.
Both parties moved for reconsideration of different aspects
of the June 26 order. By way of a February 24, 2015 order, the
judge again compelled plaintiff to sign the retainer agreement and
obligated plaintiff to pay $100 for every day she failed to comply.
Plaintiff again moved for reconsideration, resulting in the
entry of an order on August 11, 2015, that found plaintiff to be
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in violation of litigant's rights and again compelled her execution
of the retainer agreement. The judge granted other relief,
including plaintiff's payment of the accrued sanctions,2 an award
of counsel fees in defendant's favor, and the continued imposition
of the $100 per day sanction.
Plaintiff then filed this appeal,3 arguing:
I. THE ORDERS OF THE COURT OF JUNE 26, 2014,
FEBRUARY 24, 2015[,] AND AUGUST 11, 2015
ORDERING THE PLAINTIFF TO REIMBURSE THE
DEFENDANT $14,875.53 FOR LIFE INSURANCE
PREMIUMS AND DENYING THE PLAINTIFF REIMBURSE-
MENT FOR CAR PAYMENTS AND CAR RENTALS ARE
BASED ON PLAIN AND HARMFUL ERROR AND MUST BE
REVERSED.
II. THE ORDERS OF FEBRUARY 24, 2015[,] AND
AUGUST 11, 2015[,] IMPOSING SANCTIONS OF
$100.00 PER DAY ON THE PLAINTIFF MUST BE
REVERSED BECAUSE THE LOWER COURT ERRED BY
BASING THE SANCTIONS ON A REWRITING OF THE PSA
WITHOUT ANY CONSIDERATION AS TO THE INTENT OF
PARTIES.
III. PARAGRAPH 9 OF THE AUGUST 11, 2015 ORDER
DIRECTING THE PLAINTIFF TO PAY THE DEFENDANT'S
ATTORNEY'S FEES IN THE AMOUNT OF $17,365.32
MUST BE REVERSED BECAUSE THE LOWER COURT ERRED
IN FINDING THAT THE PLAINTIFF AGREED TO RETAIN
THE DEFENDANT'S PERSONAL ATTORNEY IN THE PSA.
2
That order set that amount at $12,500. A January 26, 2016 order
corrected that erroneous computation and imposed the proper amount
of $13,800.
3
After filing the appeal, plaintiff unsuccessfully moved in this
court for a stay.
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We find insufficient merit in these arguments to warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only
the following brief comments.
Although plaintiff has presented arguments about the trial
court orders of June 26, 2014, February 24, 2015, and August 11,
2015, it is only the last of these that she identified in her
notice of appeal. See R. 2:5-1(f)(3)(A) (requiring that a notice
of appeal in civil actions "designate the judgment . . . or part
thereof appealed from"); Ridge at Back Brook, LLC v. Klenert, 437
N.J. Super. 90, 97 n.3 (App. Div. 2014) (holding that, as a general
matter, only those judgments or orders designated in the notice
of appeal are subject to the appeal process). Notwithstanding, in
exercising our discretion over such procedural matters, see N.
Jersey Neuro. Assoc. v. Clarendon Nat'l Ins. Co., 401 N.J. Super.
186, 196 (App. Div. 2008), we have reviewed this matter as if the
unrepresented plaintiff identified all three orders in her notice
of appeal; as we have noted, we find her arguments lack merit.
The June 26, 2014 order merely carried out the parties'
agreement to dissolve a trust and appointed an attorney for that
purpose. The judge did not err in enforcing the PSA, which had
been incorporated in the divorce judgment. Thereafter, plaintiff
failed to comply with that order without adequate explanation and
the judge quite properly enforced the order in ways designed to
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ensure compliance; the implements of compulsion were not onerous
but were reasonably designed to achieve plaintiff's compliance.
We defer to the experienced family judge's exercise of discretion
in this regard. See In re Adoption of N.J.A.C. 5:96, 221 N.J. 1,
17-18 (2015) (recognizing that Rule 1:10-3 "allow[s] for judicial
discretion in fashioning relief to litigants when a party does not
comply with a judgment or order").
Affirmed.
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