LISA IPPOLITO VS. TOBIA IPPOLITO (FM-14-0147-13, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3619-19T1
LISA IPPOLITO,
Plaintiff-Respondent/
Cross-Appellant, APPROVED FOR PUBLICATION
December 9, 2020
v.
APPELLATE DIVISION
TOBIA IPPOLITO,
Defendant/Respondent,
and
DONAHUE, HAGAN, KLEIN &
WEISBERG, LLC,
Appellant/Cross-Respondent.
_____________________________
Argued November 17, 2020 – Decided December 9, 2020
Before Judges Fisher, Gilson and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0147-13.
David Scott Mack argued the cause for pro se
appellant/cross-respondent.
William M. Laufer argued the cause for
respondent/cross-appellant (Laufer, Dalena, Jensen,
Bradley & Doran, LLC, attorneys; William M. Laufer,
on the briefs).
Tobia Ippolito, respondent, filed a pro se brief.1
The opinion of the court was delivered by
FISHER, P.J.A.D.
In the wake of the final disposition of this lengthy and hotly-contested
matrimonial action between Lisa Ippolito and Tobia Ippolito, a dispute arose
about an attorney's lien asserted by one of Tobia's 2 former attorneys, appellant
Donahue, Hagan, Klein & Weisberg (Donahue), on an escrow account holding
the net proceeds of a sale of marital property. Except for a $20,000 award to
Donahue, the trial judge ruled in Lisa's favor. We granted Donahue's motion for
leave to appeal and stayed the order under review to consider Donahue's
argument that the matrimonial trial judge erred when, with the exception of
$20,000, he found Lisa had a greater and more equitable claim to the fund. Lisa
cross-appealed, arguing there was no legitimate reason to allow Donahue
1
Tobia Ippolito's brief was filed in response to the motion for leave to appeal.
The court will consider that submission as his brief on the merits of this appeal
and cross-appeal. Tobia Ippolito chose not to appear for oral argument.
2
We refer to the matrimonial litigants by their first names to avoid confusion
and not out of disrespect.
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$20,000 from the fund. So as not to delay the disposition of these funds, we
accelerated the appeal and cross-appeal.
To briefly summarize, Lisa commenced her divorce action in July 2012
and Tobia soon thereafter retained Donahue. In early 2014, the trial court
directed that the proceeds generated by a sale of one of the parties' homes –
slightly more than $1.1 million – be placed in escrow "until final resolution" of
the matrimonial litigation. Six months later, the court granted Donahue's motion
to withdraw as Tobia's counsel while recognizing, under N.J.S.A. 2A:13-5,
Donahue's lien on "any proceeds or property to which [Tobia] may be entitled
as a result of the instant litigation, in the amount of $241,639.67" that would be
resolved at the litigation's end.
After a lengthy divorce trial that started in late 2015 and ended in early
2016, the trial judge found that Tobia had, among other things, engaged in
"extreme and purposeful misconduct," "repeatedly violated" court orders, failed
to provide full discovery about significant marital assets, and interfered with
witnesses and the sale of marital assets. The judge concluded that Tobia
"engaged in this protracted misconduct with a single purpose in mind[:] to
punish the plaintiff for going forward with the divorce and, if possible, to leave
her and the children of the marriage bankrupt." In affirming the September 6,
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2016 judgment of divorce, we determined that the evidence fully supported the
judge's rulings and his findings warranted our deference. Ippolito v. Ippolito,
No. A-1071-16 (App. Div. May 8, 2020).
We need not repeat what was said at that time; our prior opinion speaks
for itself. It suffices to say for present purposes that the culmination of the
judge's findings was that Tobia was not entitled to receive any of the remaining
marital assets. To be sure, as Donahue emphasizes, the judge recognized Tobia's
theoretical entitlement to half the marital assets in making his equitable-
distribution findings, but, because of Tobia's failure to comply with his support
obligations and other directives, the judge concluded Lisa was entitled to all
assets, including the fund in question.
After entry of the divorce judgment that awarded Tobia nothing, Donahue
moved in the trial court for payment of its outstanding fees from the fund. By
way of his April 16, 2020 oral decision, the judge held that Lisa had a more
equitable claim to the fund than Donahue and, except for an allowance to
Donahue of $20,000, the judge ordered that the fund be transferred to her. His
May 6, 2020 order – now under review – directed that the $297,667.67 escrow
fund be turned over to Lisa, less $20,000 to be paid to Donahue.
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In appealing, Donahue argues that the judge misinterpreted N.J.S.A.
2A:13-5 and failed to recognize the equities that supported granting it a higher
priority than Lisa. We reject Donahue's arguments essentially for two reasons.
First, N.J.S.A. 2A:13-5 allows for the attachment of an attorney's lien only on
"a verdict, report, decision, award, judgment or final order in his client's favor."
Tobia – Donahue's client – obtained none of these things. His claim for equitable
distribution was recognized fleetingly but, by the end of the judge's decision, it was
gone. The judge found it more equitable – and rightly so – to convey Tobia's
theoretical share of the assets entirely to Lisa to compensate her for Tobia's failure
to pay support. Tobia received no "award" or "judgment" to which Donahue's lien
could attach; the judge's decision was not in Donahue's "client's favor." We said
long ago in Wheeler v. Wheeler, 52 N.J. Super. 504, 508 (App. Div. 1958), that
N.J.S.A. 2A:13-5, "by its very terms," does not apply when the client "recovered
nothing to which [an] attorney's lien could attach." See also Schepisi & McLaughlin,
P.A. v. LoFaro, 430 N.J. Super. 347, 356 (App. Div. 2013); Sauro v. Sauro, 425 N.J.
Super. 555, 575 (App. Div. 2012); Cole, Schotz, Bernstein, Meisel & Forman, P.A.
v. Owens, 292 N.J. Super. 453, 460-61 (App. Div. 1996).
Even if we were to view the collection of things to which the Legislature
permitted an attorney's lien to attach – "a verdict, report, decision, award, judgment,
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[and] final order" – as broad enough to cover the ephemeral recognition of Tobia's
interest in the fund, the judge correctly concluded that Lisa and the children of the
marriage had a higher priority to that fund than Tobia's former attorney and certainly
Tobia,3 whose recalcitrant and malicious conduct created the circumstance by which
his share of equitable distribution was turned over to Lisa in the divorce judgment –
a judgment we have already affirmed in all respects.
Donahue proceeds on the mistaken understanding that its imposition of a
statutory lien gives it a boost up the claimant totem pole. The lien merely precludes
the disposition of the fund in question – or allows that lien to remain attached to the
proceeds of the client's claim "in whose hands they may come," N.J.S.A. 2A:13-5 –
without first a consideration of the attorney's claim. As the Supreme Court has
explained, the assertion of the lien is "'only a claim of right to ask for the intervention
of the court' for the attorney's 'protection, when, having obtained judgment for his
client, there is a probability of the client depriving him of his costs.'" Republic
Factors, Inc. v. Carteret Work Uniforms, 24 N.J. 525, 534 (1957) (quoting Mercer
v. Graves, L.R., 7 Q.B. 499 (1872)).
3
It should not be overlooked that a ruling in Donahue's favor is a ruling in
Tobia's favor. Anything Donahue obtains from the fund decreases Tobia's
existing obligation to Donahue.
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With the imposition of an attorney's lien, the court that rendered the award,
judgment or order to which the lien attached must determine which claimant
possesses the higher priority to the fund. And to make that decision, the court must
weigh the competing equities. See Republic Factors, Inc., 24 N.J. at 534(recognizing that, while an attorney's right to impose a lien is permitted by statute,
the disposition of the attached fund is a matter "rooted in equitable considerations");
Martin v. Martin, 335 N.J. Super. 212, 222 (App. Div. 2000) (observing that the
assertion of an attorney's lien invokes "the equitable jurisdiction of the courts").
Even assuming Tobia obtained an actual award or judgment – not just a
momentary acknowledgement of his potential right to half a marital asset ultimately
awarded to Lisa – Donahue's assertion of a lien gave it no greater rights than Lisa,
only an opportunity to argue that it should have a priority over Lisa to the fund. The
judge correctly viewed the undertaking in this way and reached the appropriate
conclusion that Lisa clearly possessed a higher priority than her adversary or his
attorney, much like the plaintiff in B.B. v. Mell, __ N.J. Super. __, __ (App. Div.
Nov. 23, 2020) (slip op. at 7-10). As the victim of Tobia's contumacious conduct,
coupled with his continuing unwillingness to voluntarily pay his support obligations
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despite his significant earning capacity,4 Lisa stands on much higher equitable
ground than Tobia's former attorneys. Indeed, to rule otherwise would inequitably
shift a portion of Tobia's fees to Lisa's side of the ledger – a ruling wholly
inconsistent with the disposition of this matrimonial action.
For these very reasons, we must also reverse that part of the order that allowed
Donahue to receive $20,000 from the fund. The judge provided a brief explanation
for that ruling5 that seems untethered to his analysis of the equities and linked only
4
In affirming the judgment of divorce, we concluded that the evidence fully
supported the trial judge's imputation to Tobia of an annual income of
$2,500,000. Ippolito, slip op. at 3.
5
The judge supported his partial determination in Donahue's favor with only the
following comments:
I have a caveat which will impact my judgment slightly.
I have referred to [Lisa and Donahue] having a valid
claim in law and equity. I think the better claim for a
number of reasons, looking at the whole equation, is
[Lisa]'s but I am [un]willing to completely defeat the
Donahue lien by this view that I'm taking and in looking
at the relative equitable position of the parties, their
position in the litigation, I am going to make what is,
when all is said and done, a very minor adjustment and
award in favor of the Donahue firm in the amount of
$20,000.
I don't like doing that because I think it furthers
[Tobia]'s plan to injure [Lisa] but I think the attorney's
lien has some equitable and legal standing and in
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to a feeling of sympathy for Tobia's former attorney that should have played no role
in his considerations. Cf. Tevis v. Tevis, 79 N.J. 422, 433 (1979) (recognizing, in
considering whether equitable considerations should excuse a battered wife's
untimely suit for damages against her ex-husband, that "in the final analysis" the
question must "be governed by an objective assessment of the equities, not by an
understandable sympathy for plaintiff's plight and a pardonable repugnance toward
defendant's conduct").
Affirmed in part, reversed in part, and remanded to the trial court for entry of
an order in conformity with this opinion.
looking at, again repeating myself, how the case went
and how the judgment was administered, I think it
would not be equitable to completely – disinherit is the
wrong word but to defeat the Donahue firm's claim. I
am, of course, awarding essentially seven cents on the
dollar but that's the best that I have and I understand
they may get compensation from the bankruptcy court
but I don't think my understanding is that that will be
substantial.
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