EDMUND LYNN, III VS. CAROL LYNN (FM-15-1589-00, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-4080-19
EDMUND LYNN, III,
Plaintiff-Appellant,
v.
CAROL LYNN,
Defendant.
________________________
Submitted April 26, 2021 – Decided May 21, 2021
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-1589-00.
August J. Landi, attorney for appellant.
The Goldstein Law Group, attorney for respondent
Edmund James Lynn (Lisa Steirman Harvey, of counsel
and on the brief).
PER CURIAM
Plaintiff appeals from an April 17, 2020 Family Part order denying his
application to file a third-party complaint impleading his emancipated son,
Edmund, as a third-party defendant in an inactive eighteen-year-old divorce case
to resolve a dispute regarding the repayment of college loans. Plaintiff also
appeals from the June 16, 2020 order denying his motion for reconsideration.
We affirm.
We glean these facts from the record. In 2002, plaintiff and his ex-wife,
defendant Carol Lynn, divorced. According to the property settlement
agreement incorporated into the dual judgment of divorce (DJOD), both parties
had "joint legal custody of the three minor children, to wit, Edmund Lynn[, born
September 1992,] . . . Mark Lynn, [born June 1994, and] Adam Tuor[, born
December 1987,1] with plaintiff designated as primary residential parent."
Although the agreement addressed various issues related to the care and welfare
of the children, the agreement was silent as to the parties' responsibility for the
children's college education.
No post-judgment applications were ever filed in the case. Thus, the case
was inactive until November 26, 2019, when plaintiff filed a post-judgment
1
Adam was defendant Lynn's son from a previous relationship and therefore
plaintiff's stepson.
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motion seeking "[p]ermission to [f]ile a [t]hird[-p]arty [c]omplaint to implead
. . . Edmund . . . and Adam . . . as [t]hird[-p]arty [d]efendants to resolve any and
all issues surrounding unpaid college loans taken out by [p]laintiff."
In a supporting statement, plaintiff certified that in an "oral agreement"
both Edmund and Adam "agreed to be solely responsible for . . . their respective
college loans" "when payment became due and owing" "after college." As a
result, between 2006 and 2011, plaintiff "signed as obligor" for four "Parent Plus
loans[2] so each son could complete college." Edmund "complete[d] five to six
years at Drexel University" and Adam "completed four years . . . at Rowan
University." However, according to plaintiff, "[a]fter college, neither . . . son
. . . has made one payment towards the current balance," totaling "$174,411.13
as of November 13[], 2019" and "[a]mortization payments" were scheduled "to
start February 2020." 3
Plaintiff averred that "[b]ut for" his son's and his step-son's respective
"promise," he "would not have agreed to take out the loans." He explained that
2
A Parent Plus loan may only be dispersed to a parent or guardian of a child .
3
Plaintiff certified that he "consolidated" the loans "years ago" and the total
balance did not "parse out the amount attributable" to each son. However,
Edmund's share was approximately "48.87% of the total [balance]" and Adam's
was "50.65%." Further, "[w]ith forbearance ending, monthly payments [were]
to begin on or about February 21, 2020."
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"[a]t the time[, he] could not afford to pay for the respective colleges they chose"
and his ex-wife "never contributed financially to [their] up-bringing." He stated
further that he still did not "earn enough . . . to be responsible for . . . [the]
loans."
In his statement, plaintiff incorporated e-mails and text messages from
both sons purporting to acknowledge the indebtedness. Plaintiff also attached a
proposed third-party complaint to the motion naming Edmund and Adam as
third-party defendants and seeking judgment against them for the "Parent Plus
Loans" "incurred to finance [their] attendance at college." No relief was sought
against plaintiff's ex-wife.
Service of the motion and third-party complaint was never effectuated on
Adam who had relocated to South Korea. As a result, Adam never participated
in the proceedings in the trial court and is not a participant in this appeal. On
the other hand, Edmund opposed the motion on the ground that "it [was]
improperly pled in the Family Part" and "prohibited by the Rules of Court."
Edmund also cross-moved for counsel fees incurred opposing the motion on the
ground that the motion was brought in "bad faith."
In a supporting certification, Edmund denied agreeing to be responsible
for the loans as he "was already incurring over $60,000" of student loan debt.
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Edmund vehemently denied the existence of an "agreement of any kind"
between himself and plaintiff and averred that plaintiff "unilaterally" incurred
the loans as a "gift." According to Edmund, it was not "until 2017 - over a year
after [he] had graduated from college," that plaintiff even "discussed the loan or
requested any type of repayment from [him]."
Edmund explained that prior to retaining counsel, "[he] offered to pay
some of the loan amount" to stop plaintiff's "intimidation tactics" and
"harassment," "not because [he] actually had an obligation on the debt." In a
reply certification, plaintiff attached additional e-mail and text messages
purporting to acknowledge the indebtedness and disputing Edmund's claims to
the contrary.4
On April 17, 2020, the motion judge conducted oral argument, after which
he denied plaintiff's application as procedurally deficient. In an oral opinion
that was memorialized in an order of the same date, the judge accepted Edmund's
contention that pursuant to Rule 5:1-2, the motion was not cognizable in the
Family Part because the principal claim was contractual in nature and did not
"implicate a familial relationship."
4
In their respective certifications, plaintiff and Edmund made dueling
disparaging comments about each other and other family members, none of
which are pertinent to the issues raised in this appeal.
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Further, the real party in the divorce case, defendant Lynn, was "neither
economically interested nor . . . the intended [d]efendant of [p]laintiff's claim"
for "the repayment of student loans." Because "there [was] no pending litigation
under th[e divorce] docket [number]" and no counterclaim asserted against
plaintiff, there was no action "that a [t]hird[-p]arty [defendant could] be joined
to" under Rule 4:8-2. The judge acknowledged that while family actions are
always subject to post-judgment motions, "that is only as between the [parties]
who are in the case in the first place," not as to the children who "were never in
the case." "As such, th[e] motion [was] improperly filed with the Family [Part]
and should not be dealt with under th[e] divorce matter."
Turning to Edmund's cross-motion for counsel fees, after reviewing
counsel's certification, the judge awarded counsel fees in the amount of $5873
payable within forty-five days. The judge reasoned that the "motion [was]
frivolous" and the amount requested was "reasonable" for the services provided.
Thereafter, plaintiff moved for reconsideration pursuant to Rule 4:49-2.
On June 16, 2020, following oral argument, the judge denied the motion on the
record finding no grounds for reconsideration. The judge rejected plaintiff's
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contention that the case belonged in the Family Part because it was governed by
the Newburgh factors.5 The judge reasoned:
This is not a Newburgh . . . case, this is a case based on
what you allege is an oral agreement. It requires no
discretion on the part of a Family Part judge as to
whether or not . . . and in what proportion . . . the other
spouse needs to contribute to the college education of
the[] children. . . . [Y]our whole case is based on an
alleged oral agreement, period. It doesn't implicate
Newburgh . . . at all.
The judge intimated that because "[t]his [was] a pure contract case," the case
would be more appropriately filed "in the Law Division."
As to counsel fees, after reviewing counsel's certification, the judge
awarded Edmund an additional $5000 payable "forthwith." Combined with the
prior unpaid $5873 award, the judge entered judgment totaling $10,873. The
judge justified the award on the ground that the reconsideration motion was
completely "duplicative of the previous motion," provided "nothing that came
close to justifying a reconsideration," and forced Edmund "to spend money on
lawyers." Additionally, the fees incurred were reasonable. The judge entered a
memorializing order and this appeal followed.
5
Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) (setting forth a non-exhaustive
list of twelve factors courts should consider when evaluating a parent's
obligation to contribute to their child's college expenses).
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On appeal, plaintiff raises the following points for our consideration:
POINT I:
PURSUANT TO [RULE] 5:1-2 DISPUTES
BETWEEN FAMILY MEMBERS RE: FINANCIAL
RESPONSIBILITY FOR COLLEGE LOANS ARE
COGNIZABLE IN THE FAMILY PART. IT WAS A
MISTAKE OF LAW FOR THE TRIAL COURT TO
CONCLUDE OTHERWISE.
POINT II:
THE TRIAL COURT'S SUMMARY DISMISSAL OF
PLAINTIFF'S CAUSE OF ACTION WITHOUT A
HEARING RESULTED IN A DENIAL OF DUE
PROCESS AND A MISTAKE OF LAW.
POINT III:
THE TRIAL COURT ERRED BY ENTERING A
COUNSEL FEE JUDGMENT OF $10,873 TO
PLAINTIFF'S SON WHO WAS DEEMED A NON-
PARTY TO THE ACTION.
Under Rule 5:1-2, the following actions are cognizable in the Family Part:
All actions in which the principal claim is unique to and
arises out of a family or family-type relationship,
including palimony actions . . . . Such actions shall
include all actions and proceedings referenced in
Chapters II and III of Part V, unless otherwise provided
in [Rule] 4:3-1(a)(4); all actions and proceedings
formerly designated as matrimonial actions; actions
that arise under the Domestic Partnership Act, N.J.S.A.
26:8A-1 et seq.; actions arising under N.J.S.A. 37:1-28
et seq. relating to civil unions; and all actions and
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proceedings formerly cognizable in the Juvenile and
Domestic Relations Court.
[R. 5:1-2(a).]
Rule 5:1-2 mirrors the language in Rule 4:3-1(a)(3) delineating the
respective court divisions in which actions should be instituted, but neither rule
provides any further definition of "actions in which the principal claim is unique
to and arises out of a family or family-type relationship. . . ." "Thus, it is for the
[c]ourt to define the language referenced above on a case-by-case basis." J.Z.M.
v. S.M.M., 226 N.J. Super. 642, 647 (Law Div. 1988) (refusing to consolidate
an interspousal tort filed in the Law Division and discovered after divorce with
an ongoing custody dispute pending in the Family Part); see also Kingsdorf v.
Kingsdorf, 351 N.J. Super. 144, 159 (App. Div. 2002) (noting that any claim on
a deceased husband's behalf against his wife stemming from a settlement
agreement in the context of divorce proceedings that abated on the husband's
death "is neither unique to, nor arises out of, a family or family-type relationship
necessitating its being filed in the Family Part, or requiring the application of a
Family Part judge's expertise").
Governed by Rule 4:3-1(b), civil family actions may be transferred "to or
from the Family Part to or from any other trial division . . . of the Superior Court
. . . ." R. 5:1-3(a). The comment to Rule 5:1-3 explaining the rationale for the
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transfer provisions demonstrates that in certain circumstances, there may be
overlapping jurisdiction:
the transfer provisions are predicated on the theory that
particular actions that are not categorical family actions
may, because of the identity of the parties and their
relationship to each other and because of the nature of
the issue raised, be singularly suitable for disposition
by the Family Part . . . . Conversely, an action which is
a categorical family action might, because of its
singular circumstances, be more appropriately handled
by a different trial court, e.g. Chancery Division –
General Equity or the Law Division.
[Pressler & Verniero, Current N.J. Court Rules, cmt. on
R. 5:1-3 (2021).]
"While the Chancery Division and the Law Division have concurrent
power to afford plenary legal and equitable relief in order that a controversy be
fully adjudicated, the appropriate forum for the commencement of a specific
claim is established by the Rules of Court." Solondz v. Kornmehl, 317 N.J.
Super. 16, 19 (App. Div. 1998).
The choice of trial division should represent a
responsible exercise of the attorney's judgment in order
to obtain for all concerned the obvious advantages to be
realized by having particular cases normally tried
before judges who are specialized in either law or
equity but who nevertheless have jurisdiction to
dispense full and complete relief.
[Id. at 19-20 (quoting Gov't Emps. Ins. Co. v. Butler,
128 N.J. Super. 492, 495 (Ch. Div. 1974)).]
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Here, we agree with the judge that the Family Part is not the proper forum
to resolve this matter. Indeed, plaintiff's action does not fall within the category
of cases unique to the Family Part allocation or require its expertise. As the
judge pointed out, plaintiff's cause of action against Edmund is a contractual
claim that does not bear upon a family relationship and is neither governed by
nor implicates the Newburgh factors. The claim involves pure contract
principles between two parties who happen to be related. "Clearly, plaintiff's
primary right or the principal relief sought was not equitable in nature. A money
judgment was sought. As a consequence, counsel should have brought the
matter in the Law Division." Solondz, 317 N.J. Super. at 19 (citing R. 4:3-
1(a)(1)).
Significantly, because there was no pending litigation in the divorce case
and no counterclaim asserted against plaintiff, there was no action to which a
third-party defendant could be joined under Rule 4:8-2. See ibid. ("A plaintiff
against whom a counterclaim is asserted may cause a third party to be brought
in under circumstances which under [Rule] 4:8-1 would entitle a defendant to
do so and in the manner prescribed by [Rule] 4:8-1."). "It is, of course, clear
that a third-party complaint is inappropriate when a plaintiff against whom no
affirmative claim is made wishes to add other parties who may also be liable to
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it." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:8-2 (2021).
Moreover, contrary to plaintiff's assertion, because the judge properly denied
plaintiff's motion on procedural grounds, the facts of which were not in dispute,
there was no need for a plenary hearing. See Llewelyn v. Shewchuk, 440 N.J.
Super. 207, 217 (App. Div. 2015) ("[A] plenary hearing is only required if there
is a genuine, material and legitimate factual dispute." (quoting Segal v. Lynch,
211 N.J. 230, 264-65 (2012))).
We also agree that defendant failed to meet the standard for
reconsideration. Reconsideration is only available when "either ([1]) the [c]ourt
has expressed its decision based upon a palpably incorrect or irrational basis, or
(2) it is obvious that the [c]ourt either did not consider, or failed to appreciate
the significance of probative, competent evidence." Fusco v. Bd. of Educ. of
Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)).
We review a trial court's decision on a motion for reconsideration un der
an abuse of discretion standard. Cummings v. Bahr, 295 N.J. Super. 374, 389
(App. Div. 1996). Thus, "a trial court's reconsideration decision will be left
undisturbed unless it represents a clear abuse of discretion." Pitney Bowes
Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div.
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2015) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). A
court abuses its discretion "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002)). Here, we discern no abuse of discretion in the judge's denial
of plaintiff's reconsideration motion.
Likewise, counsel fee determinations rest within the trial judge's sound
discretion. Williams v. Williams, 59 N.J. 229, 233 (1971). We will disturb a
trial court's determination on counsel fees "only on the 'rarest occasion,' and then
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)). An "abuse of discretion only arises on demonstration of 'manifest error
or injustice.'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,
183 N.J. 554, 572 (2005)).
Under Rule 4:42-9(a)(1), attorney's fees are allowable "[i]n a family
action . . . pursuant to [Rule] 5:3-5(c)." Under Rule 5:3-5(c), when awarding
counsel fees,
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the court should consider, in addition to the information
required to be submitted pursuant to [Rule] 4:42-9,[6]
the following factors: (1) the financial circumstances
of the parties; (2) the ability of the parties to pay their
own fees or to contribute to the fees of the other party;
(3) the reasonableness and good faith of the positions
advanced by the parties . . . ; (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.
Applying these principles, we discern no basis to intervene. The judge
based the award of counsel fees on the frivolous nature of plaintiff's
applications. "An award for attorney's fees to the adverse party is appropriate if
the court finds the proceedings to have been frivolous and instituted for the
purpose of harassment as well as abuse of the judicial system." Pressler &
Verniero, Current N.J. Court Rules, cmt. 4.3.3 on R. 5:3-5 (2021) (citing Kozak
v. Kozak, 280 N.J. Super. 272 (Ch. Div. 1994)). Indeed, the unreasonableness
of plaintiff's position as well as Edmund having to incur unnecessary attorney's
fees to defend himself were appropriate considerations. See Diehl v. Diehl, 389
N.J. Super. 443, 455 (App. Div. 2006) ("[A]ssertion of an unreasonable position
6
Under Rule 4:42-9(b), "applications for the allowance of fees shall be
supported by an affidavit of services addressing the factors enumerated by RPC
1.5 (a)" pertaining to the reasonableness of the fee.
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is properly considered in awarding a counsel fee. . . ."). Additionally, under
Rule 5:3-5(c), "counsel fees may be awarded to 'any party to the action.'"
Kingsdorf, 351 N.J. Super. at 158 (quoting R. 5:3-5(c)). In that regard, we
consider Edmund the putative party as posited by plaintiff. Moreover, based on
the judge's review of counsel's certifications, the amount incurred was
reasonable.
To the extent we have not addressed a particular argument, it is because
either our disposition makes it unnecessary or the argument was without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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