LORI SGRO-LOFARO VS. DOMENIC LOFARO (FM-02-1003-13, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2856-19
LORI SGRO-LOFARO,
Plaintiff-Appellant,
v.
DOMENIC LOFARO,
Defendant-Respondent.
__________________________
Argued October 4, 2021 – Decided October 18, 2021
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1003-13.
Silvana D. Raso argued the cause for plaintiff (Schepisi
& McLaughlin, PA, attorneys; Silvana D. Raso and
Michael Caulfield, on the briefs).
Joshua A. Freeman argued the cause for defendant
(Schultz & Associates, LLC, attorneys; Carrie S.
Schultz, Joshua A. Freeman and Andrew J. Economos,
on the brief).
PER CURIAM
Plaintiff appeals from a February 7, 2020 order granting in part and
denying in part her motion seeking, among other things, to compel defendant's
remittance of money in accordance with the trial judge's amended dual final
judgment of divorce and denying attorney's fees. Plaintiff primarily asserts that
the motion judge "rewrote" the trial judge's opinion and order by requiring that
defendant remit all net proceeds from the sale of the parties' Oradell home to
plaintiff rather than distributing the proceeds fifty-fifty. We disagree with this
assertion and affirm.
We are thoroughly familiar with the facts. We previously upheld the April
10, 2017 amended dual final judgment of divorce, entered after a lengthy trial.
Sgro-LoFaro v. LoFaro, No. A-3947-16 (App. Div. Dec. 5, 2018) (slip op. at 2).
At that time, we rejected defendant's argument that the trial judge abused her
discretion by determining that "plaintiff was entitled to all proceeds from the
sale of the [Oradell home], which would be used to pay plaintiff's attorney's fees,
reimburse expenses paid on behalf of the children, and satisfy any judgment
creditors." Id. at 3.
In June 2019, and pertinent to this appeal, plaintiff filed a motion to
compel defendant to remit the awarded counsel fees and reimburse expenses
paid on behalf of the children. On appeal, plaintiff asserts that the sentence in
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the concluding paragraph of the trial judge's opinion directing that "[defendant]
shall pay . . . to [plaintiff] from his share of the net proceeds of the Oradell
home" entitles her to fifty percent of the net proceeds of the sale. As part of the
motion, plaintiff additionally sought an award of attorney's fees for the
enforcement of the amended dual final judgment of divorce.
On February 7, 2020, the motion judge conducted oral argument and
issued an order and oral opinion granting plaintiff's motion in part , denying
plaintiff's request for fifty percent of the net sale proceeds of the Oradell home
and her request for attorney's fees. The motion judge noted that nowhere in the
trial judge's opinion or amended dual final judgment of divorce was the Oradell
house apportioned fifty percent to plaintiff and fifty percent to defendant. He
noted that the trial judge's opinion stated that "[a]ll net proceeds from the sale
of the Oradell home shall be utilized to pay [plaintiff]" and "[f]rom the sale
proceeds of the Oradell home, [plaintiff] shall be reimbursed for all college and
related expenses incurred for" their two daughters, Alexa and Olivia. The
motion judge characterized the mention of defendant's "share of the net proceeds
of the Oradell home" as an "isolated reference," a "scrivener's error," and "not
reflective of [the trial judge's] intent."
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On appeal, plaintiff raises the following arguments for this court's
consideration:
POINT I
WHETHER THE MOTION JUDGE ERRED WHEN
HIS ORDER REVERSE[D] [THE TRIAL JUDGE'S]
RULING THAT DEFENDANT PAY ALL COLLEGE
EXPENSES AND ALL ATTORNEY[']S FEES[.]
POINT II
WHETHER THE MOTION JUDGE ERRED BY
FAILING TO AWARD PLAINTIFF THE
ATTORNEY'S FEES INCURRED IN MAKING THE
POST-JUDGMENT ENFORCEMENT MOTION
WHEN DEFENDANT WAS FOUND TO BE IN
VIOLATION OF COURT ORDERS[.]
The trial judge's order states that "all net closing proceeds shall be paid to
[plaintiff] [defendant's] outstanding obligations to her, as set forth in the
[d]ecision and [o]pinion incorporated herein."
The trial judge's written opinion includes three references to the sale
proceeds being used to satisfy defendant's responsibilities to plaintiff. First, in
the trial judge's analysis of the equitable distribution of the home, she concludes
that "[a]ll net proceeds from the sale of the Oradell home shall be utilized to pay
[plaintiff] for counsel fees, reimbursements of expenses paid on behalf of the
children as set forth herein, and any [j]udgment creditors of record and those
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remaining as per [a prior order], if any." Second, under the trial judge's
distribution of their children's college expenses, and in accordance with the
initial distribution of the sale proceeds of the Oradell home, she determined that
"[f]rom the sale proceeds of the Oradell home, [plaintiff] shall be reimbursed
for all college and related expenses incurred for Alexa" as well as her college
tuition bill. And third, the trial judge reiterated the same determination as to
Olivia's college expenses, stating that "[f]rom the sale of the Oradell home,
[plaintiff] shall be reimbursed for any college and related expenses incurred for
Olivia."
Plaintiff focuses on the final paragraph of the trial judge's opinion. After
concluding that plaintiff is entitled to all counsel fees and disbursements arising
from the divorce litigation, the trial judge directed that "[defendant] shall pay
same to [plaintiff] from his share of the net proceeds of the sale of the Oradell
home." Plaintiff contends that this language supports the conclusion that "there
is nothing in [the trial judge's] decision indicating that [the proceeds from the
sale of the Oradell home] should be split in any fashion other than equally."
The motion judge determined that the trial judge's inclusion of "all net
closing proceeds," as well as twice referring to "the proceeds of the sale," is
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clear and consistent with her findings. As a result, he concluded that "defendant
is entitled to a credit from the sale of the Oradell home, in the full amount."
We agree with the motion judge's conclusion that "[defendant's] share of
the net proceeds of the sale" language does not supplant the trial judge's clear
intent, as evidenced by the entire record. The trial judge specifically addressed
the distribution of the Oradell home and stated that "[a]ll net proceeds from the
sale of the Oradell home shall be utilized to pay [plaintiff]." As the motion
judge noted, the logical conclusion of plaintiff's argument would require that the
amended dual final judgment of divorce be vacated because the trial judge's
distribution of the proceeds was ambiguous. And assuming that the trial judge
was not clear that all net proceeds of the sale were to be used to reimburse
plaintiff and this conclusion would not require vacating the order, it does not
follow that the asset would by default be distributed equally. See M.G. v. S.M.,
457 N.J. Super. 286, 295 (App. Div. 2018) (noting that "an equitable distribution
does not presume an equal distribution") (citing Rothman v. Rothman, 65 N.J.
219, 232 n.6 (1974)).
We reject plaintiff's additional argument that the motion judge erred in
denying her request for attorney's fees, as plaintiff contends was based on an
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erroneous finding that defendant was entitled to a credit from the sale of the
Oradell home in the full amount.
We will not disturb a family judge's determination as to counsel fees
except for the "'rarest occasion,' . . . only because of clear abuse of discretion."
Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine
v. Pantzer, 141 N.J. 292, 317 (1995)). "[A]n abuse of discretion 'arises when a
decision is made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" State v. R.Y., 242
N.J. 48, 65 (2020) (internal quotations omitted) (quoting Flagg v. Essex Cnty.
Prosecutor, 171 N.J. 561, 571 (2002)). "An abuse of discretion also arises when
'the discretionary act was not premised upon consideration of all relevant
factors, was based upon consideration of irrelevant or inappropriate factors, or
amounts to a clear error in judgment.'" Moraes v. Wesler, 439 N.J. Super. 375,
378 (App. Div. 2015) (quoting Masone v. Levine, 382 N.J. Super. 181, 193
(App. Div. 2005)).
A family judge has discretion to award counsel fees subject to the
provisions of Rule 4:42-9. As part of that determination, the family judge should
consider:
(1) the financial circumstances of the parties; (2) the
ability of the parties to pay their own fees or to
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contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties; (5)
any fees previously awarded; (6) the amount of fees
previously paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were incurred to
enforce existing orders or to compel discovery; and (9)
any other factor bearing on the fairness of an award.
[R. 5:3-5(c).]
The motion judge analyzed each factor and placed his findings of fact on
the record before denying plaintiff's request for attorney's fees. The motion
judge did not abuse his discretion in denying plaintiff's request for attorney's
fees or by enforcing the trial judge's order.
Affirmed.
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