EDIE BRITMAN VS. FRANK SAURO (FM-10-0129-04, HUNTERDON COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2979-16T4
A-3659-16T4
EDIE BRITMAN,
Plaintiff-Appellant,
v.
FRANK SAURO,
Defendant-Respondent,
and
BUDD LARNER, PC,
Defendant/Intervenor-
Respondent.
______________________________
EDIE BRITMAN,
Plaintiff-Respondent,
v.
FRANK SAURO,
Defendant-Appellant,
and
BUDD LARNER, PC,
Defendant/Intervenor-
Respondent.
______________________________
Argued (A-2979-16) and Submitted (A-3659-16)
September 20, 2018 – Decided February 1, 2019
Before Judges Fuentes, Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon County,
Docket No. FM-10-0129-04.
Edie Britman, appellant, argued the cause pro se (in A-
2979-16) and respondent pro se (in A-3659-16).
Frank Sauro, respondent, pro se (in A-2979-16) and
appellant pro se (in A-3659-16).
Thomas D. Baldwin argued the cause for pro se
intervenor-respondent (in A-2979-16) and Budd
Larner, PC, intervenor-respondent pro se (in A-3659-
16) (Thomas D. Baldwin, on the brief).
PER CURIAM
Plaintiff Edie Britman and defendant Frank Sauro were once married.
They had three children, two boys and a girl, who are now adults. On January
19, 2010, the Family Part judge who tried this case entered an Amended
Judgment of Divorce that dissolved the marriage and sua sponte established the
A-2979-16T4
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Sauro Children College Trust Account (the Trust), "for the children's college
education." The judge placed $200,000 from the marital estate into the Trust
and initially ordered that $19,000 be paid to plaintiff to cover the cost of the
oldest boy's college education, and $18,593 be paid to defendant to cover the
cost of the girl's college education. The judge also included the following
directions for how the funds in the Trust were to be disbursed from this point
forward:
Any application for funds in the future should be made
by the parties on behalf of the children in accordance
with the standards set forth in Newburgh v. Arrigo, 88
N.J. 529 (1982). The balance of the monies shall be
held in trust in an interest bearing account by a trustee
to be agreed upon by the parties for the college and
graduate school costs of the children. If the monies are
not expended for the children's education by the time
[the youngest child] reaches the age of twenty-two (22),
and if he has no plans to attend graduate school, either
of the parties or the law firms with charging liens may
petition the [c]ourt to have the remaining monies
distributed equally to the parties as equitable
distribution which would be subject to the attorneys'
liens.
The law firm of Budd Larner, PC (Budd Larner) was one of three law
firms that represented plaintiff in the matrimonial case. Budd Larner appealed
the trial court's decision to establish the Trust from the marital estate, " arguing
that the manner in which the court allocated the parties' marital assets negatively
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affected the firm's attorney charging lien pursuant to N.J.S.A. 2A:13-5." Sauro
v. Sauro, 425 N.J. Super. 555, 560 (App. Div. 2012). This court affirmed the
Family Part judge's laudable proactive approach.
We conclude that the trial judge's decision to establish
an education trust fund to cover the children's cost of
attending college was properly supported by the record,
well within the court's authority, and in keeping with
the court's obligation to act in the best interest of the
children. Budd Larner's contractual rights, as reflected
in the retainer agreement with plaintiff, do not abrogate
or limit the Family Part's overriding obligation to act in
the best interest of the children in this case.
[Id. at 572.]
Since the entering of the January 19, 2010 Amended Judgment of Divorce,
the parties have sought and received approximately $185,000 from the Trust to
pay for the education expenses of their children. However, despite the clear
language this court used in Sauro, each time the parties petitioned the court to
access the Trust to cover the cost of their children's educational expenses, the
judge assigned to the matter allowed Budd Larner to challenge the requested
disbursement. Budd Larner successfully argued to the judge that the protocol
established by the trial court's order for the disbursement of the Trust funds gave
it standing to participate in these proceedings.
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Beginning on August 10, 2015 and ending on February 1, 2016, the judge
conducted an evidentiary hearing over four non-sequential days to determine
whether the parties' request satisfied the Newburgh standards. The judge found
that between 2012 and 2015, the parties had the ability to partially contribute to
their children's college education. The judge ordered the parties to replenish the
Trust in the amount of $60,000, which represented the educational expenses they
could have paid during those four years. The judge also ordered that the
remaining Trust funds be disbursed equally to the parties as equitable
distribution, subject to attorney charging liens.
In an order dated June 30, 2016, the Family Part judge found that pursuant
to Newburgh factors, "the [p]laintiff and [d]efendant presently have, and
previously have had, an ability to contribute toward the college education
expenses of their children, and shall replenish The Sauro Children College Trust
Account for disbursements made from the Account during the four year period
of 2012 through 2015." The judge held plaintiff was responsible to pay $20,000
and defendant $40,000. The judge also held that no further disbursements were
required because the parties' youngest child had graduated from college and did
not plan to attend graduate school.
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On June 9, 2016, defendant filed a Notice of Appeal challenging the
Family Part's June 30, 2016 order. 1 The Appellate Division Clerk
administratively dismissed the appeal on October 4, 2016 for failure to
prosecute. By order dated November 14, 2016, this court denied defendant's
motion to reinstate the appeal. According to Budd Larner, on December 7, 2016,
the trustee disbursed the balance of the funds in the Trust in accordance with the
June 30, 2016 order.
On February 8, 2017, 223 days after the final June 30, 2016 order, the
Family Part judge sua sponte issued an amended order with an attached
statement of reasons that replaced the June 30, 2016 order. The amended order
contained almost identical language as the original order. The only difference
related to the parties' financial status. The judge found that the $60,000 the
parties were required to pay to replenish the Trust represented 7.25% of their
combined incomes of approximately $827,000 during 2012 through 2015. The
February 8, 2017 amended order also adjusted the deadlines by which the parties
were required to make these payments.
1
Although defendant filed the Notice of Appeal before the Family Part entered
the June 30, 2016 order, we accepted it nunc pro tunc.
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Both plaintiff and defendant now appeal from the February 8, 2017 order.
Although these appeals were docketed separately, in an order dated August 10,
2017, this court directed the Clerk's Office to schedule the appeals "back -to-
back." We now consolidate the appeals in this opinion because both parties have
advanced the same legal position. The parties argue the approach employed by
the Family Part is inconsistent with and in violation of the Family Part's January
19, 2010 Amended Judgment of Divorce and this court's decision in Sauro.
Budd Larner argues the appeal should be dismissed because the Family Part's
February 8, 2017 sua sponte order was improvidently entered without notice.
After carefully reviewing the record before us, we exercise our
discretionary authority pursuant to Rule 2:8-3(b) and summarily reverse the
Family Part's February 8, 2017 order. Our decision in Sauro makes clear that in
establishing the Trust, the Family Part "placed higher priority upon the
children's educational well-being over the right of counsel to enforce an attorney
charging lien." 425 N.J. Super. at 573-74. The $200,000 placed in the Trust
was to be used exclusively to cover the educational expenses of the parties'
children.
The Family Part's January 19, 2010 order that established the Trust did
not impose upon the parties the obligation to replenish the funds in the Trust
A-2979-16T4
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based on a change in their financial status. Budd Larner did not have standing
to question the legitimacy of the parties' requests for disbursement of funds from
the Trust nor to require the court to conduct an evidentiary Newburgh hearing
to approve the disbursement. As we made clear in our decision affirming the
Family Part's January 19, 2010 order:
The Family Part's jurisdiction over this matter must be
guided exclusively by the best interest of the children.
The court's power must be used to moderate the
financial disruption caused by the dissolution of the
marital estate, and to the extent possible, restore and
promote the stability necessary for the parties to make
sound parenting decisions. The court is also obligated
to protect the children of the dissolving union, who, at
times, become embroiled in their parents' antagonism,
and fall prey to their misguided passions.
When the adults in the controversy are unable or
unwilling to act in the best interests of their own
children, the court must be free to act, swiftly,
decisively, and unfettered by extraneous
considerations. The establishment of a judicially
crafted educational trust fund is but one of a myriad of
creative remedies in the court's equitable arsenal. An
attorney charging lien, or any other of the possible
numerous claims that can be asserted against a family's
limited financial resources, cannot undermine the
court's parens patriae responsibility. The monies
supporting the education trust are restricted to cover the
cost of the children's college education, and would thus
not be available to plaintiff at the time of final
disposition.
[Id. at 576-77 (emphasis added).]
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The Family Part's role in this case under its parens patriae responsibility
was to ensure the children would have the funds necessary to complete their
higher education. The lien created by the attorney's lien statute "attaches only
to funds available to the parties at the time of the final disposition of the case."
Sauro, 425 N.J. Super. at 577. The final disposition of this case occurred on
January 19, 2010. If Budd Larner has a judgment against plaintiff for the
counsel fees she incurred in connection with the legal services it provided in this
matrimonial case, it has the right to avail itself of the remedies for collection of
debts provided under Rule 4:59-1. Therefore, Budd Larner is ordered to return
any monies received from the Trust.
Finally, we are compelled to briefly address the Family Part judge's sua
sponte decision to modify the June 30, 2016 final order, 223 days after it was
entered and subject to appeal as a final judgment. The Supreme Court has
recognized that "the trial court has the inherent power to be exercised in its
sound discretion, to review, revise, reconsider and modify its interlocutory
orders at any time prior to the entry of final judgment." Lombardi v. Masso,
207 N.J. 517, 534 (2011) (emphasis added) (quoting Johnson v. Cyklop
Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987)); see also R. 4:42-
2. Here, the June 30, 2016 decision was not interlocutory and the judge did not
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provide the parties with notice and an opportunity to be heard before issuing the
modified February 8, 2017 decision. See Ducey v. Ducey, 424 N.J. Super. 68,
78 (App. Div. 2012) (reversing the trial court in part for the "absence of a full
explanation of the perceived mistakes in the [final order of divorce] warranting
correction in the amended [final order of divorce], without notice or an
opportunity to be heard[.]").
Notwithstanding these material deviations from long-established
procedural requirements, these errors are legally inconsequential in light of our
determination that Budd Larner did not have a role to play in these proceedings.
Reversed.
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