TANYA KACAN VS. CLAUDIO BELUSIC (FM-02-2237-11 AND C-000303-17, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1764-17T1
A-5345-17T1
TANYA KACAN,
Plaintiff-Respondent,
v.
CLAUDIO BELUSIC,
Defendant-Appellant.
_____________________________
TANYA KACAN,
Plaintiff-Respondent,
v.
CLAUDIO BELUSIC,
MILAN BELUSIC,
and MERANDA BELUSIC,
Defendants-Appellants.
_____________________________
Argued (A-1764-17) and Submitted (A-5345-17)
May 22, 2019 - Decided June 7, 2019
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-2237-11; and Chancery Division,
Bergen County, Docket No. C-000303-17.
Anthony J. Cariddi argued the cause for appellant in A-
1764-17 (Cariddi & Garcia, attorneys; Carol J. Garcia,
on the briefs in A-1764-17 and A-5345-17).
Geri Landau Squire argued the cause for respondent in
A-1764-17 (Cohn Lifland Pearlman Herrmann &
Knopf, attorneys; Geri Landau Squire, of counsel and
on the brief in A-1764-17; Andrew R. Macklin, of
counsel and on the briefs in A-1764-17 and A-5345-
17).
PER CURIAM
These are back-to-back appeals, which we have consolidated for purposes
of this opinion. In A-1764-17, defendant Claudio Belusic appeals from an
October 31, 2017 order awarding plaintiff Tanya Kacan judgments for
enforcement of litigant's rights and counsel fees. In A-5345-17, defendants
Milan and Meranda Belusic, Claudio's 1 parents, appeal from a July 27, 2018
judgment in favor of Tanya to repay funds Claudio fraudulently transferred to
Milan and Meranda, and for counsel fees. We affirm.
1
We utilize first names to distinguish Claudio from his parents because they
share a common surname and utilize Tanya's first name for the sake of
consistency. We intend no disrespect.
A-1764-17T1
2
We take the following facts from the record. Following a nearly five-year
marriage, Tanya and Claudio were divorced by way of a Final Judgment of
Divorce (FJOD) entered in 2012, which incorporated a Divorce Settlement
Agreement (DSA). One child was born of the marriage.
In pertinent part, the DSA recited that each party maintained a 401(k)
Retirement Account and waived equitable distribution of these assets. The DSA
required Claudio to turn over three rings to Tanya as a part of her equitable
distribution. Because the parties agreed to share physical custody of their child,
they agreed neither would be responsible for child support. However, Claudio
would be responsible to pay half the cost of the child's medical insurance, and
reasonable and necessary unreimbursed medical expenses.
Shortly after entry of the FJOD, the parties began prolonged post-
judgment litigation due to Claudio's failure to comply with the terms of the DSA
and numerous post-judgment orders enforcing it. Claudio violated the parenting
time provisions of the DSA, and no longer enjoyed physical custody of the
parties' child. An order was entered in November 2014, requiring him to pay
child support and health insurance for the parties' daughter. The judge who
signed the order concluded:
[Claudio] has demonstrated that he chooses to do as he
pleases and not as he is ordered or as the Court Rules
A-1764-17T1
3
require. He has not produced . . . his financial
information. He has not paid his [c]ourt [o]rdered
obligations. He ha[s] elected to ignore the obligations
that he agreed to when signing the DSA. [Tanya] has
had to file this motion to again enforce her rights. . . .
[Claudio] has previously been ordered to pay counsel
fees on three separate occasions. [Claudio] paid his
attorneys. . . . [Tanya] is entitled to . . . counsel fee[s]
of $6000.
Another order was entered in May 2015, requiring Claudio to pay Tanya
$9000 as reimbursement for the rings he failed to return pursuant to the DSA.
The order also imposed monetary sanctions. The judge made the following
findings:
As for [Tanya]'s request to be reimbursed
$11,751.99 for [Claudio] failing to return [her] rings as
previously ordered . . . on January 25, 2013 and again
. . . on November 17, 2014, the [c]ourt notes that . . .
[Claudio] admits in his [c]ertification that he willfully
defied both [c]ourt orders and sold the rings. . . .
. . . Most compelling to the [c]ourt is that
[Claudio] was twice ordered, by two different judges,
to return the rings to [Tanya] or to pay her the fair
market value. [Claudio] twice ignored the [c]ourt's
orders and instead sold off the rings[.]
Additionally, Claudio was ordered to pay unreimbursed medical and daycare
expenses for the parties' daughter. The judge also ordered him to pay the $6000
in attorney's fees previously ordered and $8154 in additional attorney's fees. As
part of her enforcement motion, Tanya requested that Claudio be compelled to
A-1764-17T1
4
liquidate his retirement account to satisfy his court-ordered obligations. The
judge denied her request without prejudice, but noted the court would entertain
sanctions "if [Claudio] violate[s] [the] order and continues to thumb his nose at
the orders of this [c]ourt and its [j]udges[.]"
Claudio sought reconsideration of the order, which the court denied in an
order dated September 18, 2015. Notably, this order required Claudio to
liquidate his retirement account to pay his court-ordered obligations.
Claudio did not comply and instead filed a Chapter 7 Bankruptcy petition.
His bankruptcy petition stated his 401(k) had a value of $105,000. The petition
also named his mother as an unsecured creditor based on a "personal loan" in
the amount of $45,000.
The bankruptcy discharge occurred in February 2016, and with the
bankruptcy stay lifted, Tanya filed another enforcement motion. On June 24,
2016, the Family Part judge entered an order finding the counsel fees previously
awarded to Tanya, the $9000 reimbursement, and $9200 accrual in additional
sanctions for failure to pay the reimbursement constituted non-dischargeable
domestic obligations. The order denied Tanya's request for Claudio to liquidate
his retirement account "pending clarification from the Bankruptcy Trustee or the
Bankruptcy Court that the requested relief is not subject to the automatic stay
A-1764-17T1
5
provisions in accordance with 11 U.S.C. §362(b)(2)(B)." On November 4, 2016,
the judge signed an order which noted "[p]laintiff's counsel . . . provided the
[c]ourt with correspondence and confirmation from . . . the Bankruptcy Trustee"
and ordered Claudio to liquidate his 401(k) account to pay his outstanding
financial obligations, which then amounted to $48,694.
Claudio failed to comply and the judge entered two subsequent orders, in
March and April 2017, enforcing litigant's rights and awarding Tanya counsel
fees for her efforts. The judge entered an order in June 2017, scheduling a
plenary hearing to determine Claudio's ability to pay his obligations.
Discovery in advance of the plenary hearing revealed Claudio had
liquidated $99,000 from his retirement account in February 2017, and
transferred the funds to a bank account in his name. The following day, he
transferred a total of $98,000, in separate equal amounts of $49,000, to Milan
and Meranda.
Judge Terry Paul Bottinelli conducted a two-day plenary hearing and
issued a written decision on October 31, 2017. The judge noted Claudio never
appealed the September 18, 2015 or the November 4, 2016 orders, which
required him to liquidate his 401(k) and pay his obligations. The judge also
A-1764-17T1
6
noted Claudio had not appealed the June 24, 2016 order finding his unpaid court -
ordered obligations were non-dischargeable.
At the hearing, the crux of Claudio's testimony was that the funds
transferred to his parents were to repay a debt he owed them. Judge Bottinelli
found Claudio's testimony lacked credibility. The judge noted he failed to
produce any credible evidence to establish the validity of the alleged debt, and
in any event, his debts had been discharged in the bankruptcy "nearly a year
before his 'repayment' to his parents." The judge also noted Claudio "admitted
to transferring money to his parents, which he knew to be in direct violation of
[c]ourt [o]rder" and had fabricated the story of the debt owed to his parents to
avoid satisfying his financial obligations to Tanya.
The judge concluded Tanya demonstrated by clear and convincing
evidence that the money Milan and Meranda received constituted a fraudulent
transfer under the Uniform Fraudulent Transfer Act (UFTA), N.J.S.A. 25:2-20
to -34. The judge stated Tanya was "left to her own [devices] with regard to
enforcement remedies which could be perfected by bringing another action
against the defendant, his mother and father to [void] the transfer, enjoin the
parents from dissipating the asset, appointment of a receiver or [for] any other
relief . . . . [See] N.J.S.A. 25:2-29(a)."
A-1764-17T1
7
Judge Bottinelli signed the October 31, 2017 order, which memorialized
the sums Claudio owed Tanya, namely, $50,574.71, comprised of statutory post-
judgment interest on $48,964 from February 7, 2017, and statutory post-
judgment interest on $1880.71 from April 13, 2017, payable until the debt was
satisfied. The judge also ordered Claudio to pay counsel fees of $17,666.92. 2
Tanya subsequently filed a Chancery Division complaint naming Claudio,
Milan, and Meranda as defendants to compel the return of the funds. A one-day
plenary hearing occurred before Judge Robert P. Contillo.
Meranda testified and admitted she was aware Claudio was involved in a
post-judgment matrimonial litigation, and that she and Milan knew Claudio's
only asset after the divorce was his 401(k) account, both at the time of the
divorce in 2012, and when they received the transfers in February 2017. She
also admitted Claudio told them the source of the money was the 401(k).
Claudio also testified and admitted the alleged loan from his parents was
incurred prior to the bankruptcy and had been discharged.
Judge Contillo issued a written decision on July 18, 2018. He found Milan
and Meranda were served with Claudio's bankruptcy petition and therefore knew
2
The judge issued an amplification of his counsel fee ruling pursuant to Rule
2:5-1(b) on December 18, 2017.
A-1764-17T1
8
the alleged debt to them would be discharged. The judge found Milan and
Meranda's testimony that they were unaware of the Family Part orders requiring
Claudio to liquidate his 401(k) lacked credibility. Specifically, the judge stated:
[T]hey were . . . aware that their son was embroiled in
a bitter and protracted matrimonial action, including
extensive post-judgment enforcement applications, and
they were specifically aware that their son had no assets
to speak of but for the 401K, which they believed was
"tied up" in the matrimonial action, "not to be touched."
They have no explanation as to how their impecunious
son, who was dependent upon them for his expenses of
daily living or for financing his matrimonial litigation,
suddenly came up with $98,000 cash.
The judge concluded Milan and Meranda failed to prove they were "good
faith transferees" pursuant to UFTA. He stated:
I find that [Milan and Meranda] . . . are clearly insiders
insofar as they are family members who were
intimately familiar with their son's financial
circumstances, including the acute financial distress
occasioned by the ongoing matrimonial proceedings.
The [c]ourt further determines that [Milan and
Meranda] failed to prove that the transfers were made
for reasonably equivalent value since the only thing
owed to them at the time of the transfers was, at best, a
total of [$8000.] N.J.S.A. 25:2-30(a). Since they were
not good faith transferees beyond the [$8000, they] are
not entitled to any further reduction in the amount of
the judgment which will be entered against [them.]
N.J.S.A. 25:2-30(d).
A-1764-17T1
9
Accordingly, judgment will be entered
against . . . Milan and Meranda . . . in favor of Tanya
. . . in the amount of $83,615.74[.]
The judge also ordered Claudio to pay Tanya $22,029.61 in counsel fees.
These appeals followed.
I.
In A-1764-17, Claudio raises the following arguments:
I. [THE] LOWER COURT WAS WITHOUT
AUTHORITY TO INVADE THE RETIREMENT
ACCOUNT OF THE DEFENDANT N.J.S.A. 25:2-1(b)
WITHOUT A FINDING THAT THE FEES AND
SANCTIONS WERE WITHIN THE EXCEPTION
FOR CHILD SUPPORT.
....
II. THE LOWER COURT FAILED TO CONDUCT
A HEARING IN A MANNER WHICH ALLOCATED
THE PROPER BURDEN OF PROOF AS A MATTER
OF LAW. THIS ERROR RESULTED IN FINDINGS
OF FACT THAT DO NOT WARRANT THIS
COURT'S DEFERENCE AS TO THE
DETERMINATIONS OF CREDIBILITY.
....
III. FAILURE TO FILE A PROPER COMPLAINT
HAS RESULTED IN THE MISUSE OF COURT
RESOURCES AND THE ABILITY OF DEFENDANT
TO PRESENT ADEQUATE DEFENSES
BORDERING ON DENIAL OF DUE PROCESS.
A-1764-17T1
10
IV. FEES AND SANCTIONS IMPOSED ARE A
CLEAR ABUSE OF DISCRETION.
In A-5345-17, Milan and Meranda raise the following arguments:
I. THE CHANCERY COURT FINDING THAT
THE PRIOR RULING OF THE MATRIMONIAL
COURT THAT A FRAUDULENT TRANSFER HAD
OCCURRED BETWEEN THE NAMED
DEFENDANTS WAS BINDING UNDER THE
DOCTRINE OF RES JUDICATA CONSTITUTED A
DENIAL OF DUE PROCESS. RES
JUDICATA/COLLATERAL ESTOPPEL IS
INAPPLICABLE BECAUSE DEFENDANT-
PARENTS HAD NOT BEEN JOINED AS
INDISPENSABLE PARTIES IN THE PRIOR
PROCEEDING.
A. Denial of Motion to Vacate the Default
against defendant-son was in error and
constituted a continual denial of due process as
to defendant-son as evidenced by the proceedings
before the matrimonial court and demonstrated
the Chancery Court's application of strict liability
to all the defendant-parties.
II. CHANCERY COURT COMMITTED
REVERSIBLE ERROR BY HOLDING BOTH IN
LAW AND FACT THAT DEFENDANT-PARENTS
FAILED TO INTERVENE AND THEREBY
CONDUCTED AN IMPERMISSIBLE BIFURCATED
HEARING WHICH PERPETUATED THE ERROR
WHICH OCCURRED BEFORE THE
MATRIMONIAL COURT.
A. Defendant-parents had no knowledge of
the nature of the matter before the matrimonial
court and therefore could not have been
A-1764-17T1
11
reasonably expected to exercise their right to
intervene. The Chancery Court was aware of this
fact.
B. The defendant-parents by not being made a
party in the matrimonial action were denied the
proper burden of proof thereby resulting in an
improper finding of law of insolvency.
III. REVERSIBLE ERROR WAS COMMITTED BY
THE CHANCERY COURT BY ITS IMPOSITION OF
STRICT LIABILITY DURING ITS
CONSIDERATION OF THE AFFIRMATIVE
DEFENSES. N.J.S.A. 25:2-30(a) UNDER THE
UNIQUE CIRCUMSTANCES PRESENTED.
IV. IT WAS INCUMBENT UPON THE
CHANCERY COURT TO REVIEW WHETHER OR
NOT THE CLAIM BEING BROUGHT FORWARD
PURSUANT TO THE UNIFORM FRAUDULENT
TRANSFER [ACT] WAS VALID. N.J.S.A. 25:2-1(b).
The arguments raised by Claudio, Milan, and Meranda lack merit. R.
2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge
Botinelli's and Judge Contillo's opinions and add the following comments.
Claudio's challenges to Judge Botinelli's decision ignore the validity of
the September 18, 2015, June 24, 2016, and November 4, 2016 orders. Claudio
never appealed these orders and instead violated them, and then beseeched the
trial judge for relief from his obligations, despite having unclean hands.
The doctrine of unclean hands embraces the
principle that a court should not grant equitable relief
A-1764-17T1
12
to a party who is a wrongdoer with respect to the subject
matter of the suit. Faustin v. Lewis, 85 N.J. 507, 511
(1981). It calls for the exercise of careful and just
discretion in denying remedies where a suitor is guilty
of bad faith, fraud or unconscionable acts in the
underlying transaction. Untermann v. Untermann, 19
N.J. 507, 517-18 (1955); Murray v. Lawson, 264 N.J.
Super. 17, 37 (App. Div. 1993). If circumstances
calling for its application are disclosed, then a court of
equity, as a court of conscience, is justified in refusing
to listen, even if the complaint is well founded.
Goodwin Motor Corp. v. Mercedes-Benz of N. Am.,
Inc., 172 N.J. Super. 263, 271 (App. Div. 1980).
[Pellitteri v. Pellitteri, 266 N.J. Super. 56, 65 (App.
Div. 1993).]
Claudio was afforded every opportunity to explain why the judge should
not have enforced the several orders requiring him to pay Tanya. He had the
ability to pay, but instead chose to make a fraudulent transfer to his parents in
an attempt to impoverish himself. Claudio's unclean hands eliminated any
credible argument that he could not meet his court-ordered obligations.
As for the arguments raised by Milan and Meranda, the record
demonstrates Judge Contillo's decision was not exclusively predicated on the
doctrine of res judicata. The judge made his own findings of facts and
conclusions of law, and credibility findings, which are supported by the record
and legally unassailable. Milan and Meranda were afforded due process and
there were no procedural errors or mistaken applications of the law.
A-1764-17T1
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Affirmed.
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