MATTHEW GOODWIN VS. DONNA M. GOODWIN (FM-14-0632-07, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2649-19
MATTHEW GOODWIN,
Plaintiff-Appellant,
v.
DONNA M. GOODWIN,
Defendant-Respondent.
_________________________
Submitted April 20, 2021 – Decided May 7, 2021
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0632-07.
Peter A. Ouda, attorney for appellant.
Jacobs Berger, LLC, attorneys for respondent (Jamie N.
Berger, of counsel and on the brief; Amanda P.
Johnston, on the brief).
PER CURIAM
The parties were married in November 1987. Three children were born of
this marriage, and all are now emancipated adults. Plaintiff Matthew Goodwin
filed this divorce action in 2006. Early in the proceedings, Matthew was ordered
to pay defendant Donna M. Goodwin $4,753 in monthly pendente lite support
for her and the children. He soon fell behind; an order entered in June 2007
found he had only paid $2,100 and was $26,418 in arrears; the order also reduced
the monthly obligation to $3,137 by imputing income to Donna. This same
order also authorized the release of $100,000 from Matthew's Charles Schwab
SEP-IRA account to be held in trust by Donna's attorney as security for
Matthew's obligations because of his "repeated, willful and inexcusable defiance
of the [c]ourt's prior orders." And the June 2007 order declared that Matthew
would be responsible for the penalties and taxes associated with the SEP
withdrawal. Matthew failed to comply with the direction that the funds be
withdrawn.
In April 2008, the parties were divorced; the judgment incorporated an
agreement that required arbitration of their disputed financial issues by a retired
superior court judge and review by an appellate arbitrator. A few months later,
Donna sought from the arbitrator an order that would require distribution of
$160,000 from the SEP as an advance on equitable distribution eventually due
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her and without prejudice to final allocation; she also asked that the arbitrator
enforce that part of the June 2007 order that required the releas e of $100,000
from the SEP to be held by her attorney. The arbitrator granted both applications
in October 2008. 1
The arbitrator rendered a written opinion in May 2009 and an arbitration
award in July 2009. The trial judge entered an order that confirmed the
arbitrator's award on October 14, 2009.
The arbitrator determined there were actually two retirement accounts2
and that they had a combined value for equitable distribution purposes as of
November 30, 2008, of $436,094. He directed that this amount be equally
distributed "subject to allocation of early withdrawal penalties, taxes and other
penalties set forth" elsewhere in the arbitration award. The arbitrator determined
that Matthew should bear the responsibility for the payment of taxes and
penalties incurred on $50,000 of the $160,000 withdrawal, and that the parties
should share equal responsibility for the taxes and penalties of the remaining
1
The $160,000 withdrawal was reduced by the award of a $5,000 fee to Donna's
attorney and by the payment of the arbitrator's $5,000 retainer.
2
We will continue to refer to them as SEP.
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$110,000 withdrawal, an unequal distribution of that liability because of
Matthew's failure to comply with his pendente lite obligations.
Another issue resolved in arbitration was Matthew's claim to a Mallamo3
credit. The arbitrator determined Matthew was entitled to a credit
provided he submit[ted] to [Donna] proof of payments
made of [her] Schedule A and B expenses, insurance
premiums or children's activities and non-covered
health expenses in an amount in excess of $7,500 per
month, (which credit is unallocated and not taxable to
[Donna], for the period of January 5, 2007 through June
1, 2009). This credit [was] to be paid to [Matthew] as
a credit from the proceeds of the closing on the marital
home.
The arbitrator also awarded $100,000 from the SEP to Donna for payment
of counsel fees she had incurred, allowed Matthew a credit of $55,000 for one -
half of the $110,000 "already withdrawn and paid to [Donna's] counsel," and
determined that Matthew's "remaining counsel fee obligation to [Donna] of
$45,000[] will be satisfied by the transfer of an additional $45,000[] from the
[SEP] to [Donna]."
3
Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995) (holding that
pendente lite supports orders are "subject to modification," so that when entering
final judgment, a court may adjust the parties' obligations to make up for the
difference between the pendente lite order and the final disposition).
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As mentioned, the arbitration agreement provided the parties with the
right to appeal the award to another arbitrator. Matthew filed an appeal
regarding some of the issues referred to above. The appellate arbitrator affirmed
the retired judge's award in March 2014; among other things, the appellate
arbitrator observed that "[t]he underlying record is replete with [Matthew's]
constant and pervasive violations of the pendente lite orders." In motions filed
soon after, the trial court continued to deny Matthew relief in light of the
arbitrator's decision and its affirmance.
In April 2015, the trial court determined that Matthew had established a
prima facie showing of changed circumstances. Because Matthew was self-
employed, the judge directed him to obtain an assessment by a forensic expert
of his "true income and review his claimed business expenditures." Donna
moved for reconsideration. In opposing that motion, Matthew admitted he had
removed funds from the SEP years earlier without Donna's knowledge; he
asserted the funds were removed to avoid IRS attachment. As a result, the trial
judge directed a release to Donna of other funds held in escrow elsewhere that
were accumulated from the sale of the marital home. Among other things, the
trial judge directed Matthew to provide information regarding what the judge
characterized as Matthew's "improper[] remov[al]" of funds from the SEP and
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his "refus[al] to disclose the whereabouts and details and accounting for same."
When Matthew failed to comply, a bench warrant was issued for his arrest.
Additional motions4 produced five trial court orders entered on July 10,
2015. Among other things, these orders directed the release of $96,584.34 from
escrow to Donna, and compelled Matthew to (a) disclose the whereabouts and
provide an accounting regarding the removed SEP funds; (b) provide proof of
life insurance; and (c) demonstrate he retained the accountant required for the
pending changed-circumstances proceeding or else the request for a
modification of his support obligation would be denied.
Matthew appealed portions of the five July 10, 2015 orders. We found no
merit in any of his arguments – noting, among other things, his contumacious
attitude toward the trial court's orders – and affirmed the July 10, 2015 orders
under review. Goodwin v. Goodwin, No. A-5514-14 (App. Div. Nov. 4, 2016)
(slip op. at 12-14).
Matthew thereafter moved for relief from an outstanding bench warrant.
Except for one minor modification in its terms, the request to vacate the bench
4
Because it is not necessary to our disposition of the issues raised in this appeal,
we have not set out the entire procedural history of this case and have not
mentioned many of the motions filed from the action's commencement until
entry of the order under review.
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warrant was denied by order entered on June 6, 2017. By this time – despite the
passage of nearly two years – Matthew had failed to comply with the July 10,
2015 orders, including the obligation to provide information and account for the
SEP funds he unilaterally removed years earlier. When Matthew had failed to
comply by September 2017, Donna again moved for enforcement of the prior
orders. A February 18, 2018 order required, once again, Matthew's compliance
with prior directions about the SEP. And the judge again found Matthew had
"consistently displayed an utter disregard for his legal obligations and the orders
of this [c]ourt." The judge refused to proceed further with Matthew's changed-
circumstances application until he fully complied with all outstanding
obligations. Not until April 2018 did Matthew disclose that the funds removed
from the SEP had been placed in a TD Ameritrade account.
Meanwhile, the probation department had levied on a brokerage account
held by Matthew to compensate for the $78,415.67 arrearage in alimony and
child support. In October 2018, Matthew sought entry of an order to show cause
to suspend this levy; it was then that Donna learned for the first time of the
brokerage account's existence. The trial judge quite correctly denied Matthew's
application.
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In February 2019, Donna moved for aid of litigant's rights and other relief,
seeking, among other things, the authority to withdraw: (a) $218,047 from the
TD Ameritrade account to satisfy, along with interest, her share of equitable
distribution of the SEP as had been ordered by the arbitrator, and (b) $80,858.66
from Matthew's brokerage account to satisfy several past orders requiring his
payment of her counsel fees and sanctions. Matthew cross-moved, arguing there
were outstanding factual disputes that required a plenary hearing.
By order entered on May 16, 2019, the trial judge granted Donna's motion
and denied Matthew's, concluding in his written decision – after a thorough
discussion of the arbitration and the many other procedural events that were
prologue to his determination – that there were "no outstanding or unresolved
issues" relating to the arguments posed in the cross-motions. Instead, the judge
determined that Matthew was simply attempting to relitigate matters already
resolved, by the arbitration award or otherwise. The judge concluded that the
"allocation of tax liability relating to the retirement accounts" had been resolved
– unambiguously – by the arbitration award issued ten years earlier.
Undeterred and unsatisfied, Matthew moved for a stay of the May 16,
2019 order pending appeal. That motion was denied on August 7, 2019. He
never appealed the May 16, 2019 order. Instead, on September 16, 2019,
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Matthew moved in the trial court to vacate the part of the May 16, 2019 order
authorizing a withdrawal of funds from the TD Ameritrade account for Donna's
benefit. He also requested a direction from the trial court that the parties return
to arbitration regarding the claim to a Mallamo credit and argued responsibility
for the taxes and penalties engendered by withdrawals from the SEP – despite
having previously been argued on other occasions – had not been correctly
decided by the arbitrator or by later orders entered in the trial court. Donna
cross-moved, seeking counsel fees and frivolous litigation sanctions because of
Matthew's attempt to relitigate matters previously resolved.
By way of his December 23, 2019 order, and as explained in a written
decision, the judge denied Matthew's motion and granted Donna's.
Matthew appeals, arguing:
I. THE COURT ERRED AS A MATTER OF LAW IN
FINDING THAT THE DOCTRINE OF LACHES
BARRED RELIEF UNDER [RULE] 4:50-1.
ACCORDINGLY, THE COURT SHOULD VACATE
PARAGRAPHS 1 AND 2 OF [THE] DECEMBER 23,
2019 ORDER.
II. PURSUANT TO R. 4:50-1[,] THE MAY 16, 2019
ORDER MUST BE VACATED, OR IN THE
ALTERNATIVE, IT MUST BE CORRECTED
PURSUANT TO R. 1:13-1.
III. THE PARTIES'[] FINAL ARBITRATION
AWARD MUST BE ENFORCED AND [MATTHEW]
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SHOULD BE ENTITLED TO RETURN TO
ARBITRATION FOR REVIEW OF MALLAMO
CREDITS.
We find these arguments to be without sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E). In fact, we find these arguments to be
frivolous. We add only the following few comments.
As for Matthew's first argument, although the judge mistakenly invoked
the equitable doctrine of laches, he correctly recognized that Matthew's attempts
to seek relief from the arbitration award or subsequent orders – even assuming
the award or orders were incorrectly decided – were unreasonably delayed. Rule
4:50-2 requires that such motions be filed within a reasonable time. It is
remarkable to observe that the arbitration award was rendered more than ten
years before. Once untethered from the laches doctrine,5 the judge's
unreasonable-delay determination – better tethered to Rule 4:50-2 – is
unassailable and affirmed.
As for his third argument – in which Matthew seeks authorization to go
back to arbitration so he may further pursue his alleged Mallamo credit – we
5
Laches more appropriately applies when no statute of limitations is available
to govern the timeliness of the assertion of a claim in equity. See, e.g., Fox v.
Millman, 210 N.J. 401, 420 (2012). But other equitable doctrines would have
supported a denial of the motion; the unclean hands doctrine comes to mind.
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need only observe, once again, that the arbitration award was issued in July 2009
and affirmed by the appellate arbitrator in March 2014. Neither of those
determinations suggested issues remained. The time to complain – even if
Matthew was correct – about the arbitrator's failure to resolve an issue has long
since passed.
Affirmed.
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