ALEXANDER SIMON VS. DIANA M. BORRERO(FM-18-1006-13, SOMERSET COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3937-15T2
ALEXANDER SIMON,
Plaintiff-Appellant,
v.
DIANA M. BORRERO, f/k/a
DIANA M. SIMON,
Defendant.
_________________________________
Submitted May 10, 2017 – Decided June 30, 2017
Before Judges Alvarez and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset
County, Docket No. FM-18-1006-13.
Alexander Simon, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Alexander Simon appeals from two matrimonial post-
judgment orders: the first requiring the parties to pay off their
respective shares of the children's student loans, to the extent
the loans were incurred to pay for room and board, books and fees;
the second granting defendant's request for attorney fees and
costs.1 We affirm.
The parties were divorced on August 9, 2013. Three children
were born of their relationship. Subsequent to the Judgment of
Divorce, the parties have engaged in motion practice to resolve
disputes relative to various issues involving the children,
including responsibility for college expenses. Two orders entered
by the Family Part, which emanated from post-judgment motions,
form the basis for plaintiff's appeal.
On May 18, 2016, plaintiff appealed the February 23 order
requiring the parties to pay off their respective shares of the
children's student loans within ninety days, and the May 3 order
requiring plaintiff to pay a portion of defendant's attorney fees.
At the outset, we note that plaintiff's appeal of the February
23 order is untimely. Pursuant to R. 2:4-1(a), appeals from final
orders shall be taken within forty-five days of their entry.
Plaintiff filed an appeal outside the forty-five-day period and
did not seek a motion to extend time pursuant to R. 2:4-4(a).
Issues not raised by a timely appeal are barred. See Heffner v.
1
Plaintiff's brief noted a third order dated June 29. That order
post-dates the Notice of Appeal. Plaintiff has not appealed from
that order.
2 A-3937-15T2
Jacobson, 192 N.J. Super. 299 (App. Div. 1983), aff'd, 100 N.J.
550 (1985).
We next address the May 3 order. In their respective motion
and cross-motion, both parties sought reimbursement for attorney
fees and costs. In his statement of reasons, the judge cited to
R. 5:3-5(c). Pursuant to that Rule, the following should be
considered, in addition to the information to be submitted pursuant
to R. 4:42-9, in determining an award of attorney fees:
(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 both during and prior to trial; (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.
One purpose of allowing an attorney fee award is to "prevent
a maliciously motivated party from inflicting economic damage on
an opposing party by forcing expenditures for counsel fees." Kelly
v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992). In exercising
its discretion, the court may also consider the good or bad faith
exercised by the parties. Williams v. Williams, 59 N.J. 229, 233
(1971). Indicia of bad faith may include an unwillingness of a
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party to enter into meaningful negotiations to settle issues and
intentional non-compliance with court orders. Borzillo v.
Borzillo, 259 N.J. Super. 286, 293 (Ch. Div. 1992).
The judge found that plaintiff refused to communicate with
defendant regarding numerous issues that required cooperation, and
found plaintiff was non-compliant with several provisions of the
February 23 order. The judge noted that many of the issues raised
by the parties would have been resolved had plaintiff engaged in
"good faith communication." Because plaintiff failed to do so,
the judge held that it "will not allow [plaintiff's] bad faith
intransigence to go unsanctioned." After consideration of the
factors set forth in R. 5:3-5(c), defendant was awarded $5000 for
attorney fees. This appeal followed.
An award of attorney fees is a decision that rests within the
discretion of the judge and is thus reviewed for an abuse of that
discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427,
443-44 (2001). "'[F]ee determinations by trial courts will be
disturbed only on the rarest of occasions, and then only because
of a clear abuse of discretion.'" Id. at 444 (quoting Rendine v.
Pantzer, 141 N.J. 292, 317 (1995)). An abuse of discretion occurs
where the trial court decision was "'made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" United States v. Scurry, 193
4 A-3937-15T2
N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor,
171 N.J. 561, 571 (2002)).
In light of our deferential standard of review, we find the
attorney fee award did not constitute an abuse of discretion. The
judge properly considered and applied the factors pursuant to R.
5:3-5(c) in his well-reasoned and thorough statement of reasons.
We accord deference to the Family Part's findings of fact due to
that court's special expertise in family matters and, here, to the
judge's familiarity with the parties. Cesare v. Cesare, 154 N.J.
394, 411-413 (1998). In sum, we discern no basis for error.
Affirmed.
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