CORT WIZOREK VS. DANA FELMLEE (FM-08-713-13, GLOUCESTER COUNTY AND STATEWIDE)
A-3427-15T2
| N.J. Super. Ct. App. Div. | May 24, 2017Background
- Cooper Levenson, P.A. (appellant) represented Dana Felmlee in her divorce from Cort Wizorek and withdrew in Feb. 2014 with unpaid fees. Appellant later obtained an arbitration award and a money judgment against Felmlee that was recorded as a lien on the marital home in Dec. 2015.
- A Final Judgment of Divorce (FJOD) entered May 7, 2014, giving Felmlee the option to remain in the marital home for three years and requiring that, upon refinance or sale after three years, Felmlee pay Wizorek $45,000 (plus interest) and $5,000 in attorney’s fees at sale/refinance.
- One week after the FJOD (May 15, 2014) Wizorek recorded a lis pendens asserting an equitable-distribution claim affecting title to the marital property.
- Because of unpaid carrying charges, Wizorek sought sale of the home; by Jan. 2016 a sale was pending and the parties discovered appellant’s December 2015 judgment lien consumed the remaining equity.
- The Family Part extinguished appellant's lien as to the marital estate, holding equities favored Wizorek (and the lis pendens' notice effect) even though the lis pendens may have been procedurally imperfect; appellant’s personal judgment against Felmlee remained intact.
Issues
| Issue | Plaintiff's Argument (Wizorek) | Defendant's Argument (Cooper Levenson) | Held |
|---|---|---|---|
| Whether Wizorek's pre-existing lis pendens/prior FJOD interest takes priority over appellant's subsequently recorded judgment lien on the marital property | Lis pendens (filed before appellant's lien) put the world on notice of Wizorek's equitable-distribution claim; equities favor his prior claim to sale proceeds | Appellant had a valid recorded money judgment lien obtained before any docketed judgment of Wizorek and was entitled to priority as a judgment lienholder | Court affirmed: equities and constructive/actual notice from the lis pendens and prior involvement in the matrimonial case subordinate appellant's property lien; appellant's judgment survives against Felmlee personally but is extinguished as to the marital estate |
| Whether the lis pendens was a proper procedural vehicle and whether its impropriety defeats its notice effect | Even if procedurally imperfect, the lis pendens gave constructive notice and equitable protection to Wizorek’s contingent property interest | Lis pendens was improper because the FJOD created a contingent/conditional monetary right rather than an immediately recordable property suit; appellant was not required to notify Wizorek of its fee-confirmation proceeding | Court held procedural imperfection did not destroy equitable notice; lis pendens nevertheless prioritized Wizorek's claim to sale proceeds |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (discussing Family Court expertise and deference in family matters)
- Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (appellate review of legal questions is de novo)
- Randazzo v. Randazzo, 184 N.J. 101 (Family Part as a court of equity)
- Carr v. Carr, 120 N.J. 336 (equitable powers in domestic relations and relief from strict legal effects)
- Di Iorio v. Di Iorio, 254 N.J. Super. 172 (lis pendens as constructive notice to the world)
- Kingsdorf ex rel. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144 (equitable jurisdiction and considerations)