CORT WIZOREK VS. DANA FELMLEE (FM-08-713-13, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-3427-15T2
CORT WIZOREK,
Plaintiff-Respondent,
v.
DANA FELMLEE, f/k/a WIZOREK,
Defendant,
and
COOPER LEVENSON, P.A.,
Defendant-Appellant.
____________________________
Submitted April 3, 2017 – Decided May 24, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Gloucester County, Docket No. FM-08-713-13.
Cooper Levenson, P.A., appellant pro se
(Howard E. Drucks, on the brief).
Respondent has not filed a brief.
PER CURIAM
We consider the ruling of the trial court on equitable
considerations extinguishing appellant, Cooper Levenson, P.A.'s,
judgment lien in favor of a lis pendens asserted on marital
property following the entry of a final judgment of divorce (FJOD).
We affirm.
Appellant represented defendant Dana Felmlee in the
matrimonial litigation with her husband, plaintiff Cort Wizorek.
When the law firm was granted permission to withdraw from
representation in February 2014, Felmlee owed the firm substantial
fees.
The FJOD entered on May 7, 2014, allowed Felmlee to remain
in the marital residence for three years, if she so chose, for the
benefit of herself and the children. The pertinent clause stated:
After three (3) years, [Felmlee] shall either
refinance so as to remove [Wizorek's] name
from the mortgage and pay [Wizorek] Forty-Five
Thousand Dollars ($45,000.00) as his equity
or the property must be listed and sold and
at settlement [Felmlee] shall pay to [Wizorek]
Forty-five Thousand Dollars ($45,000.00) plus
interest from May 7, 2017 at judgment rates.
[Felmlee] shall be responsible for the upkeep
of the mortgage and taxes on the property
which are to be paid up to date.
The FJOD also provided that Felmlee would "pay/reimburse"
Wizorek $5000 in attorney's fees at the time of the sale or
refinance of the marital home.
The following week, on May 15, Wizorek, through counsel,
filed a notice of lis pendens that stated:
TO WHOM IT MAY CONCERN:
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NOTICE IS HEREBY GIVEN of the
commencement of suit in the Superior Court of
New Jersey, Gloucester County Chancery
Division, entitled as above under Docket
Number FM-08-713-13 filed on April 11, 2013,
the object of which is to obtain a judgment
and other ancillary relief including, but not
limited to, a lien on the property to secure
a deferred equitable distribution payment of
$50,000.00 to plaintiff by the defendant,
affecting title to the premises more
particularly described on "Schedule A"
attached hereto and made a part hereof.
In January 2015, the Wizorek children were removed from
Felmlee's care and placed into the custody of the Division of
Child Protection and Permanency and foster care.
As a result of Felmlee's failure to pay her mortgage
obligations, real estate taxes and other carrying charges for the
marital home, Wizorek requested an order that the home be listed
for sale. Although the application was denied without prejudice
for Wizorek's failure to provide the outstanding mortgage balance
and fair market value of the home in his certification, the court
stated in its order of April 17, 2015 that Wizorek could refile
for relief if Felmlee failed to bring the mortgage and related
charges current by August. The order further stated: "Court finds
that [Wizorek's] interest in the property is currently adequately
protected as he has admittedly file[d] for and obtained a lis
pendens." (alteration in original).
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In December 2015, Wizorek presented an order to show cause
requesting that Felmlee be required to sign the agreement of sale
and list for sale the former marital property. At the oral
argument on the application in January, Wizorek advised that the
house had been listed for sale and a contract for sale had been
executed. Settlement on the house was scheduled for late January
2016.
The January 25, 2016 order, entered pursuant to the order to
show cause application, provided:
Pursuant to paragraph 7 of the [FJOD] and the
Lis Pendens filed on May 15, 2014, Judgment
is hereby entered in favor of [Wizorek] and
against [Felmlee] in the amount of Forty-Five
Thousand ($45,000) Dollars. It is anticipated
this Judgment will be satisfied by way of a
check payable to Cort Wizorek at settlement
on the sale of [the property].
The order also entered judgment for $5000 for Wizorek's matrimonial
counsel pursuant to the FJOD and lis pendens to be satisfied out
of the sale of the home.
At the settlement of the property on January 27, 2016, Wizorek
and his counsel learned for the first time that appellant had
obtained a judgment against Felmlee that had been filed as a lien
against the property in December 2015. The judgment arose from a
fee arbitration award granted to appellant for $31,789.75 against
its former client Felmlee in March 2015. The law firm had not
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noticed Wizorek or his counsel of the arbitration proceeding. The
award was confirmed, and final judgment was entered against Felmlee
on December 14, 2015. On December 29, the judgment was recorded
as a lien on the marital premises.
At the settlement, the parties to the contract of sale and
the title company realized that the equity remaining in the marital
property was insufficient to satisfy Wizorek's claim from the FJOD
and appellant's judgment lien. Wizorek brought the issue before
the court in an order to show cause for a resolution of the
competing claims.
At oral argument, Wizorek argued that the lis pendens referred
to the FJOD, and was filed prior to appellant's lien. He also
asserted that he did not have a judgment that could be docketed
as of May 2014; under the FJOD he was not entitled to a judgment
until the marital property was either refinanced or sold.
Furthermore, appellant was on notice of Wizorek's prior claim
under the recorded lis pendens.
Appellant responded that the lis pendens was improperly filed
as it was only for a money judgment. As the law firm had docketed
its judgment against the property prior to any recorded judgment
of Wizorek, appellant's lien was valid.
The judge entered an order on February 3, 2016 extinguishing
appellant's lien on the property. She found that the home was
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part of a marital estate of which appellant was aware as it had
represented Felmlee in the matrimonial litigation. She also
concluded that Wizorek "could not preserve his judgment lien
through a formal judgment in order to protect the children's right
to live in the former marital home during a significant part of
their juvenile years."
As a result of appellant's representation of the wife during
the divorce, the law firm had "more [than] constructive notice of
. . . Wizorek's interest and the reasons it could not be formalized
into a docketed judgment in the traditional sense or reduced to a
docketed judgment in the traditional sense." The judge also
determined that Wizorek could have been served with appellant's
application in the Superior Court action for a judgment following
the arbitration decision. The title company was instructed to
hold the pertinent funds in escrow pending the court's final
consideration of the parties' arguments.
Further argument was entertained on March 4, 2016. Appellant
reiterated its argument that a lis pendens was an improper filing
– both procedurally and substantively. The firm contended that a
lis pendens advises any prospective purchaser that there is going
to be litigation in which a lien or an interest in the property
is going to be adjudicated. Appellant asserted that here the
issue had been resolved, there was no pending case and Wizorek was
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only entitled to a money judgment. The firm also contended that
it was not required under the court rules to notice Wizorek of its
application for a judgment lien for counsel fees.
In her oral decision, the judge described Wizorek's equitable
distribution claim regarding the marital property as "abstract,"
"conditional" and "contingent." She stated that it could not be
categorized as a money judgment as it remained subject to post-
judgment contingencies and was not subject to finality until at
least three years after the entry of the FJOD.
The judge also found that the lis pendens gave notice, under
these circumstances where there was anticipated post-judgment
litigation, of the pending claim of Wizorek. The judge advised
that appellant's judgment lien remained viable against Felmlee
personally, but was extinguished as to the marital estate. She
ordered the proceeds of the sale to be distributed according to
the terms of the FJOD: $38,990.23 to Wizorek and $5000 to his
counsel. This appeal followed.
We begin with a review of governing principles. We are
required to accord deference to the Family Court's decisions
because of the court's "special jurisdiction and expertise in
family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, we owe no special deference to the trial judge's
"interpretation of the law and the legal consequences that flow
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from established facts." Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). Accordingly, our
consideration of this legal issue is de novo.
Appellant asserts in its appeal that the lis pendens filed
by Wizorek was illegal and did not establish the priority of rights
over the law firm's rights as the holder of a judgment lien.1
Although we recognize that a lis pendens was not the proper vehicle
in which to assert Wizorek's equitable distribution rights, we are
satisfied that the equitable considerations detailed by the trial
judge support her conclusion that appellant's lien was subordinate
to Wizorek's claims under the circumstances presented in this
matter.
Under N.J.S.A. 2A:15-6, a lis pendens is filed after the
presentation of a complaint, "to enforce a lien upon real estate
or to affect the title to real estate or a lien or encumbrance
thereon." The statute also notes that "[n]o notice of lis pendens
shall be filed under this article in an action to recover a
judgment of money or damages only."
A lis pendens provides notice to a prospective purchaser of
a currently pending claim that could impact the real property.
Gen. Elec. Credit Corp. v. Winnebago of N.J., Inc., 149 N.J. Super.
1
Wizorek did not file a brief in the appeal.
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81, 85-86 (App. Div. 1977) (citations omitted). Appellant argues
that the filing of a lis pendens was procedurally incorrect as
there was no pending lawsuit regarding the marital property at the
time of the filing. The firm also contends that Wizorek held a
money judgment he could have recorded following the entry of the
FJOD.
We agree there was no lawsuit pending at the time Wizorek
filed his lien and recognize that the filing of the lis pendens
may have been procedurally incorrect. Nevertheless, we are
satisfied that the principle underpinning the filing of the lien
– notice to all the world of a claim upon the property – serves
to prioritize Wizorek's claim to the limited funds from the sale
of the marital property.
Appellant represented Felmlee in the divorce proceedings.
Although counsel withdrew from the representation three months
prior to the entry of the FJOD, there is no dispute that the firm
was familiar with the issues in the matrimonial litigation,
including any assets subject to equitable distribution. During
oral argument of the order to show cause application, appellant
advised it had withdrawn after it had appeared at the early
settlement program. It is certain that the law firm was familiar
with any assets subject to equitable distribution, and therefore,
cognizant of Wizorek's claim to the marital estate.
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One week after the FJOD was entered, Wizorek filed the lis
pendens. Even if the lien was not the proper vehicle in which to
assert his claim, the filing was further notice to appellant of
Wizorek's interest in the marital property.
Wizorek asserted to the trial judge that he had received
assurances regarding his marital property interest in a post-
judgment application in which he had requested a court order for
the sale of the residence. The April 17, 2015 order addressing
the motion stated: "[The] Court finds that [Wizorek's] interest
in the property is currently adequately protected as he has
admittedly file[d] for and obtained a lis pendens."
A year after the FJOD and lis pendens filing, appellant
proceeded to fee arbitration and was awarded the unpaid fees due
from Felmlee. In October 2015 appellant moved in the Superior
Court to confirm the arbitration award. Final judgment was entered
on December 14; appellant recorded the judgment as a lien on
December 29, 2015. Neither Wizorek nor his counsel were notified
of any of these proceedings.
Appellant argues that it did everything "it was required to
do under law to ensure the efficacy of its lien." The trial judge
did not disagree. The firm is entitled to its judgment against
its former client, and that right remains unscathed by the trial
court's order. We are constrained, however, under the discrete
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circumstances of this matter to also agree with the judge's
findings that the equities lie with Wizorek and those equities
must prevail.2
"The Family Part is a court of equity." Randazzo v. Randazzo,
184 N.J. 101, 113 (2005); see also Carr v. Carr, 120 N.J. 336, 351
(1990)(noting that "[t]he Legislature has recognized that courts'
equitable powers are particularly appropriate in the context of
domestic relations"). A "court [of equity] must exercise its
inherent equitable jurisdiction and decide the case based upon
equitable considerations." Kingsdorf ex rel. Kingsdorf v.
Kingsdorf, 351 N.J. Super. 144, 157 (App. Div. 2002).
There is no question that Wizorek asserted his rights to the
marital estate before the law firm obtained and recorded its
judgment. As discussed supra, appellant was aware of Wizorek's
interest in the equitable distribution of the marital property
even before the entry of the FJOD. Although improperly filed, the
lis pendens nevertheless served as additional notice to all who
might have an interest in the marital property that Wizorek had a
prior claim on it. The equities cannot countenance a disregard
of the factual events and preclude Wizorek his equitable
2
In light of our determination, we find it unnecessary to resolve
the issue of whether Wizorek had a judgment amenable to recordation
following the FJOD.
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distribution interest despite appellant having proceeded properly
under the law. "Equities arise and stem from facts which call for
relief from the strict legal effects of given situations." Carr,
supra, 120 N.J. at 351 (quoting Untermann v. Untermann, 19 N.J.
507, 518 (1955)).
The doctrine of lis pendens prevents the obstruction of the
administration of justice and the derogation of one's potential
rights to property. "Filing a notice of lis pendens serves as
constructive notice to the world that an action involving real
property is pending, so that any subsequent purchaser or lienor
of that property will take subject of the litigation." Di Iorio
v. Di Iorio, 254 N.J. Super. 172, 190 (Ch. Div. 1991) (citation
omitted). We are satisfied that appellant's notice of Wizorek's
asserted interest in the marital property prioritized Wizorek's
claim over that of the firm's judgment and that the trial court
properly extinguished appellant's lien on the property.
Affirmed.
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