Larissa Kunin v. Sergey Kunin ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1509-23
LARISSA KUNIN,
Plaintiff-Respondent,
v.
SERGEY KUNIN,
Defendant-Appellant.
_______________________
Argued April 17, 2024 – Decided July 18, 2024
Before Judges Vernoia, Gummer, and Walcott-
Henderson.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Chancery Division, Family Part,
Essex County, Docket No. FM-07-2714-21.
Angelo Sarno argued the cause for appellant (Snyder,
Sarno, D'Aniello, Maceri & Da Costa, LLC, attorneys;
Angelo Sarno, of counsel and on the brief; Scott D.
Danaher, on the brief).
Bruce M. Pitman argued the cause for respondent
(Starr, Gern, Davison & Rubin, PC, attorneys; Alona
Magidova, of counsel and on the brief).
PER CURIAM
On leave granted, defendant Sergey Kunin appeals from a Family Part
order that bars him from paying his "counsel or professional fees" in this
matrimonial case without first providing five days' notice to the court, plaintiff
Larissa Kunin, and the court-appointed fiscal agent. Perceiving no abuse of
discretion, we affirm.
I.
The parties were married in 1999, have a daughter who was born in 2001,
and separated in September 2018. Plaintiff filed a complaint for divorce on
April 19, 2021. The next day, defendant removed $300,000 from his bank
account.
In a February 7, 2022 order and statement of reasons, a Family Part judge
found "there are valid concerns related to the dissipation of assets and attempts
to obfuscate income and marital funds" and that "[d]efendant ha[d] been
dissipating marital funds in what appear[ed] based upon the proofs before the
court at th[e] time to be a coordinated attempt to defund the marital estate prior
to entry of a Judgment of Divorce." The judge also found defendant had
unilaterally decided to stop paying the carrying costs related to the marital home
and to reduce by almost half his pendente lite payments. Denying defendant's
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motion to compel the sale of the marital home and granting plaintiff's
cross-motion for pendente lite relief, the judge, among other things, ordered
defendant to create a litigation fund for plaintiff by taking a loan against his
401K accounts, return funds withdrawn from his accounts and the accounts of
his companies,1 provide information regarding the businesses' bank accounts
and cashflows, maintain automobile and health insurance coverage for plaintiff
and their daughter, and pay pendente lite alimony support, the educational costs
of the parties' daughter, and other expenses.
Plaintiff subsequently moved to enforce the February 7, 2022 order;
defendant cross-moved for reconsideration of it. The judge who entered the
February 7, 2022 order denied defendant's cross-motion. Another Family Part
judge, David B. Katz, decided plaintiff's motion and, in a July 6, 2022 order,
found defendant had violated several of the provisions of that order. The judge
appointed a fiscal agent over defendant's property, ordered the liquidation of
defendant's 401(k) accounts and the distribution of the resulting funds, and
directed defendant to comply with his pendente lite obligations set forth in the
February 7, 2022 order and his outstanding discovery obligations. In a separate
1
According to defendant, he is "a 50% owner of a business called IQ Dental
Supply, LLC, and its related entities."
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July 6, 2022 order, the judge enjoined defendant and his agents from interfering
with the fiscal agent's performance of his duties and from disposing of
defendant's property, funds, and business interests. The judge also directed them
to cooperate with the fiscal agent and to provide him with certain documents
and information.
In response to plaintiff's application, the judge entered an order dated
October 7, 2022, directing defendant to give the fiscal agent and plaintiff's
"professionals" "audit level access" to his accounting records and program,
relating to his businesses, including IQ Dental Supply, LLC. Defendant
objected to the implementation of the order. In a November 7, 2022 order, the
judge enforced the October 7, 2022 order and gave defendant and his agents five
days to comply with it.
Plaintiff moved to compel defendant to respond to outstanding discovery
requests. In a February 13, 2023 order, the judge directed defendant to provide
certified answers to interrogatories and a response to a certification. The judge
also granted plaintiff's fee application.
Plaintiff moved for leave to amend her complaint and to enforce litigant's
rights. Defendant cross-moved to compel plaintiff's attorney and the fiscal agent
to produce their billing invoices. In a July 21, 2023 order, the judge denied
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plaintiff's motion for leave to amend and granted without objection defendant's
motion to compel. The judge found defendant was in arrears, had failed to
satisfy court-ordered financial obligations, and had violated several provisions
of the February 7, 2022, July 6, 2022, and February 13, 2023 orders . The judge
scheduled a plenary hearing regarding defendant's "alleged inability to pay" and
whether the fiscal agent's "role and obligations" should be expanded "based on
[d]efendant's noncompliance with previous orders." The judge ordered
defendant to produce certain documents and to cause his businesses to produce
certain documents. The judge also granted in part plaintiff's fee application.
During the second day of the plenary hearing, defendant conceded he had
violated several provisions of the February 7, 2022 order, including provisions
requiring him to return funds withdrawn from his accounts and the accounts of
his companies, and pay the carrying costs of the marital home, their daughter's
educational costs, and other expenses. He testified one of his companies had
paid for his personal rent, utility bills, and taxes. Defendant failed to produce
bank account information, records regarding his alleged disability, or other
records evidencing his purported inability to pay.
After hearing defendant's testimony, the judge expressed his belief he had
"a situation here that doesn't seem to be disputed that substantial attorney fees
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were paid" by defendant to his counsel "while support and other obligations
were not paid." The judge questioned: "Why should I not enter a temporary
injunction for any further payment of attorney fees when spousal support and
child education costs are not being paid under the Sauro v[.] Sauro[, 425 N.J.
Super. 555 (App. Div. 2012)] principle?" The judge found "the family [wa]s
not getting any money" and defendant would not be prejudiced by a temporary
injunction. Invoking the court's parens patriae obligation, the judge temporarily
enjoined "payment of any further fees" and advised counsel they could further
argue the issue on the next hearing day. The judge entered an order dated
September 15, 2023, "temporarily enjoin[ing] [d]efendant and/or IQ Dental
Supply, L.L.C., and its affiliates, from paying or advancing any attorneys ' fees
in connection with this matter until further court order."
The judge gave the parties an opportunity to submit briefs on the issue of
the injunction. He heard argument on November 16, 2023. Referencing the
"significant monies" that had been expended, the judge indicated he wanted "to
have an understanding of [the bills defendant proposed paying] before it does
happen."
On December 1, 2023, the judge entered an order supplementing and
modifying the September 15, 2023 order. The order provided:
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2. Defendant, or an officer of IQ Dental Supply, LLC
(and its affiliates) shall only pay or advance counsel
or professional fees . . . which are connected, relate
to, or pertain to the divorce action on [five] days[']
advance notice to the Court, with a copy to
[p]laintiff's counsel and [the fiscal agent].
3. Said notice shall include the amount of the requested
disbursement, the source of the funds proposed to be
used, and the amount paid to the professional to date.
Plaintiff shall have three (3) days from receipt . . . to
advise the Court of any objections. The Court will
schedule and resolve any objections expeditiously.
4. The above is not to preclude IQ Dental Supply, LLC
(and its affiliates) from retaining or paying counsel
or professionals for corporate matters which are in
the normal course of the business and unrelated to
the divorce matter. Plaintiff shall be provided with
notice of all expenditures made pursuant to this
paragraph within [two] days following the payment.
5. Based on comments made on the record regarding
the viability of IQ Dental Supply, LLC, any
discovery requests of [p]laintiff relating to the
financial condition or viability of the entity shall be
responded to within [three] days of the request.
The order also directed defendant "in good faith" to provide plaintiff and the
fiscal agent with accurate updates regarding "the viability of IQ Dental Supply,
LLC (and its affiliates)" and his efforts to restructure it and seek financing and
lines of credit for it.
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On December 21, 2023, the judge placed his decision on the record
regarding the ability-to-pay hearing and entered an order in which he found
defendant "had the ability to pay and honor the [c]ourt-imposed obligations set
forth in the [c]ourt's Order of February 7, 2022[,] . . . and that [d]efendant's
violations of [the order's] provisions w[ere] willful." In his decision, the judge
noted "IQ Dental" days before had filed something in the United States
Bankruptcy Court. He explained why he did not find defendant credible and
detailed the repeated failures of defendant and his companies to cooperate with
the fiscal agent, defendant's personal expenditures that appeared as corporate
charges, loans defendant had repaid to family members instead of paying his
support obligations to plaintiff and their child, the hundreds of thousands of
dollars spent on luxury items, and defendant's willful violations of the court's
orders. The judge emphasized the importance of "transparency" in the
dissolution of a marriage.
The judge required defendant to "turn over to the [f]iscal [a]gent, on a
weekly basis, 50% of any money, income, or monetary benefit that he receives,
or is paid on his behalf" and to pay an additional $1,000 per week towards his
alimony, financial-maintenance, and child-support arrears on entry of a
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judgment establishing their amount. The judge also awarded plaintiff "attorney
and professional fees incurred in connection with the ability to pay hearing ."
Defendant moved for leave to appeal the December 1, 2023 order.2 We
granted that motion. On appeal, defendant argues the court had no legal
authority to impose the five days' notice requirement and contends the order
"interferes with the attorney client relationship and threatens [his] right to
counsel and experts of his own choosing." Unpersuaded, we affirm.
II.
When reviewing a Family Part order, we are mindful "the Family Part has
'special jurisdiction and expertise in family matters,' which often requires the
exercise of reasoned discretion." M.G. v. S.M., 457 N.J. Super. 286, 293 (App.
Div. 2018) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Thus, if we
2
We understand the December 1, 2023 order is the only order from which
defendant sought leave to appeal. In the heading of the first section of the legal
argument of his merits brief, defendant asserts his "request for leave to appeal
the order entered on December 1, 2023, should be granted . . . ." In the heading
of the second section, he asserts the judge erred in entering the September 15,
2023 and December 1, 2023 orders but later in the brief acknowledges the
September 15, 2023 order was "temporary" and subsequently "modified and
amended" by the December 1, 2023 order. As for the December 1, 2023 order,
defense counsel at argument clarified defendant was appealing from paragraphs
two through five of the order as they applied to defendant individually,
recognizing defendant's companies shouldn't be using their corporate assets to
pay for defendant's personal counsel or professional fees incurred in this
matrimonial matter.
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conclude there is satisfactory evidentiary support for the Family Part judge's
findings, our 'task is complete and [we] should not disturb the result.'" Ibid.(alteration in the original) (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)). We
reverse only "when the trial court's factual findings are 'so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice.'" Slutsky v. Slutsky, 451
N.J. Super. 332, 344 (App. Div. 2017) (quoting Rova Farms Resort, Inc. v. Inv'rs
Ins. Co. of Am., 65 N.J 474, 484 (1974)). A Family Part judge's "legal
conclusions, and the application of those conclusions to the facts, are subject to
our plenary review." M.G., 457 N.J. Super. at 294 (quoting Reese v. Weis, 430
N.J. Super. 552, 568 (App. Div. 2013)).
A Family Part judge also "possesses broad equitable powers to accomplish
substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000);
see also Julius v. Julius, 320 N.J. Super. 297, 310 (App. Div. 1999) (finding "the
court of chancery is not powerless to devise practical means of rendering justice
in the face of problems created by a litigant intentionally or unintentionally") ;
R. 5:3-7(b) ("On finding that a party has violated an alimony, financial
maintenance, or child support order the court may . . . grant . . . (8) any other
appropriate equitable remedy"). "In a pending matrimonial action, the Family
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Part judge has the statutory authority to enter orders providing for the 'care,
custody, education and maintenance of the children,' and to ensure that funds
will be available to cover the costs for these concerns." Sauro, 425 N.J. Super.
at 572 (quoting N.J.S.A. 2A:34-23). A Family Part judge has a "parens patriae
obligation 'to intervene where it is necessary to prevent harm . . . .'" Id. at 572(quoting Segal v. Lynch, 413 N.J. Super. 171, 181 (App. Div. 2010)). We are
convinced that that is exactly what Judge Katz was doing when he imposed the
notice requirement.
And he did so without in anyway prejudicing defendant. We recognize a
litigant has a right to choose counsel. Comando v. Nugiel, 436 N.J. Super. 203,
213 (App. Div. 2014). As defense counsel, who represented defendant before
and since the December 1, 2023 order was imposed, acknowledged during
argument, the record is devoid of any evidence the order negatively impacted
defendant's ability to retain counsel of his choosing or other professionals in
connection with this divorce action or otherwise interfered with his relationships
with them.
The Family Part judge's imposition of the notice requirement was amply
supported by the record, well within his authority, and in keeping with his
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obligation to act in the best interests of the parties' child. Accordingly, we affirm
the December 1, 2023 order.
Affirmed.
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