KATHERINE WILK VS. JOHN WILK (FM-07-2757-16, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5013-18T1
KATHERINE WILK,
Plaintiff-Respondent,
v.
JOHN WILK,
Defendant-Appellant.
_______________________
Submitted January 12, 2021 — Decided January 28, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-2757-16.
Ziegler, Zemsky & Resnick, attorneys for appellant
(Steven M. Resnick and Elizabeth D. Burke, on the
briefs).
Weinberger Divorce & Family Law Group, LLC,
attorneys for respondent (Richard A. Outhwaite, on the
brief).
Defendant John Wilk appeals from a June 7, 2019 order awarding plaintiff
Katherine Wilk $40,000 in counsel fees arising from the parties' divorce matter.
We vacate the award and remand for further findings consistent with this
opinion.
We glean the following facts from the record. The parties were married
for eighteen years when plaintiff filed her complaint for divorce in 2016. The
parties had one child who was adult, thereby leaving the issues of alimony,
equitable distribution, and counsel fees to be resolved. Defendant was the
breadwinner and plaintiff the homemaker. Plaintiff had counsel throughout the
divorce matter and defendant was self-represented.
The parties appeared for trial on February 7, 2018, but represented to the
trial judge they settled the matter. In court, they prepared a handwritten term
sheet reflecting the settlement, which was marked as a joint exhibit. It provided
defendant would pay plaintiff $40,000 per year in open duration alimony, and
equitable distribution of defendant's pension and thrift plan, marital bank
accounts, and the former marital residence. During the hearing, plaintiff asked
about the life insurance defendant would carry to insure his alimony obligation.
Plaintiff's counsel acknowledged the term sheet did not address the issue and
stated: "We need to do some life insurance to secure ([i]ndiscernable), but
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obviously we have to work out what that number is." Furthermore, the parties
agreed plaintiff's counsel would submit a certification of services for the judge
to determine counsel fees and defendant would have the opportunity to respond
and oppose the award of counsel fees as well as challenge the $25,000 in fees
paid to plaintiff pendente lite.
Thereafter, each party provided testimony confirming they entered into
the settlement agreement voluntarily. They agreed plaintiff's counsel would
prepare a property settlement agreement, transmit it to defendant, and the parties
would appear for an uncontested divorce hearing a week later.
The parties returned to court on February 15, 2018, without a written
property settlement agreement. The judge prepared a judgment of divorce to
which she attached the February 7 joint exhibit reflecting the settlement, and
divorced the parties.
Post-judgment, plaintiff filed a motion to address the life insurance and
counsel fee issues, which a different judge heard. On February 21, 2019, the
motion judge entered a three-paragraph order and statement of reasons
explaining why she scheduled a plenary hearing to address the life insurance
issue. The remainder of the order stated:
2. Plaintiff's application for counsel fees pursuant to the
parties' Marital Settlement Agreement is hereby
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designated to be decided by [the trial judge], who
presided over the dissolution of the parties' marriage.
3. Upon the decision of [the trial judge] regarding the
outstanding issue of counsel fees during the pendency
of this action, this [c]ourt shall decide the request for
counsel fees for the [post-judgment m]otion and
[c]ross-[m]otion.
On August 1, 2018, plaintiff's counsel submitted a certification of services
addressing the Rule 5:3-5(c) and RPC 1.5(a) factors for an award of fees.
Counsel certified plaintiff incurred a total of $80,694.34 in counsel fees and
costs and sought an award in that amount. Defendant retained counsel who
opposed the request.
The trial judge issued the June 7, 2019 order accompanied by a five-page
statement of reasons in which she addressed the Rule 5:3-5(c) and the RPC
1.5(a) factors.1 Regarding Rule 5:3-5(c), the judge's findings were as follows:
i. Factors One (1) & Two (2): Financial
Circumstances Of The Parties & The Ability Of The
Parties To Pay Their Own Counsel Fees Or To
Contribute To The Fees Of The Other Party:
Plaintiff is not employed, and has not earned an
income for the entire marriage. During the marriage,
[d]efendant provided the financial support for the
family. However, it is not clear as to why [p]laintiff
1
We do not recite the judge's findings under the RPC 1.5(a) factors because
they are either repetitive of her analysis of the Rule 5:3-5(c) factors or unrelated
to the arguments raised on this appeal.
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made few apparent efforts to contribute to her support,
particularly once she commenced this action. Pursuant
to [a] March 18, 2018 [pendente lite o]rder, [d]efendant
is required to pay alimony to [p]laintiff in the biweekly
amount of $[1538.46] via wage garnishment. She will
be receiving $150,000[] in equitable distribution for her
[fifty percent] interest in the parties' home. Defendant
has carried all of the parties' shelter expenses and
contributed nearly entirely to the college costs of the
parties' daughter. Plaintiff has paid little, if anything.
Defendant is an Environmental Scientist with the
Environmental Protection Agency ("EPA"). [In] 2017
. . . he earned approximately $116,000[]. In prior years,
he supplemented his EPA income by earning income as
a driver for Uber and Lyft . . . earn[ing] $22,694[]. . . .
Defendant chose to represent himself in this matter and,
thus, incurred no counsel fees. However, the court
finds that his choice to be self-represented may have
extended, rather than shortened this litigation.
Although he is clearly an intelligent man, the
[d]efendant exhibited a naiveté about the legal process.
Conversely, [p]laintiff took some intransigent positions
and failed to make efforts to contribute to her own
support. Both parties seemed strategically to reduce
their abilities to earn incomes for purposes of this
litigation.
ii. Factor Number Three (3): The Reasonableness
and Good Faith Of The Positions Advanced By The
Parties:
As stated above, both parties reduced their efforts
to earn during the litigation. Plaintiff, an educated
woman whose only child is in college, argued that she
was completely dependent on [d]efendant. The [c]ourt
finds that this was, in part, unfairly self-created. On the
other hand, the [d]efendant appears to have reduced his
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outside income in 2017, with no obvious reason. He
also took some economically threatening actions during
the divorce matter, likely meant to force [p]laintiff to
capitulate to his demands. This resulted in motion
practice made more difficult because [d]efendant chose
to be self-represented. The court found both parties, at
times to be unreasonable in their positions.
Plaintiff was forced to file a [n]otice of [m]otion
to compel [d]efendant to provide discovery, which the
[c]ourt granted.
iii. Factor Four (4): The Extent of Fees Incurred By
Both Parties:
Plaintiff has incurred counsel fees in the amount
of $79,039[] to date in connection with matter.
iv. Factor Five (5): Any Fees Previously Awarded:
Pursuant to the [c]ourt's November 4, 2016
[pendente lite o]rder, [d]efendant was directed to obtain
a home equity line of credit against the former marital
residence in the amount of $100,000[]. Each party was
permitted to withdraw $10,000[] for counsel fees
without prejudice and subject to reallocation at the time
of trial. . . . Defendant furnished plaintiff's former
counsel with $10,000[] towards [p]laintiff's counsel
fees.
Pursuant to [p]aragraph 4 of [a] July 24, 2017
[pendente lite o]rder, each party was permitted to
withdraw an additional $15,000[] from said home
equity line of credit to be applied to litigation costs
without prejudice. . . . Consequently, [d]efendant
furnished [plaintiff's counsel] with the sum of
$15,000[] towards [p]laintiff's counsel fees.
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v. Factor Six (6): The Amount of Fees Previously
Paid To Counsel By Each Party:
Plaintiff has paid [her] counsel . . . in the amount
of $37,837[]. Defendant incurred no fees for the
divorce process as a result of his self-representation.
vi. Factor Seven (7): The Results Obtained:
After a brief day of trial, the parties entered into
a term sheet previously marked by the [c]ourt as J-1 and
were divorced by way of the February 15, 2018
[u]ncontested [h]earing.
vii. Factor Eight (8): The Degree to Which Fees
Were Incurred To Enforce Existing Orders Or to
Compel Discovery:
Plaintiff incurred counsel fees in connection with
her June 17, 2017 [n]otice of [m]otion relating to
payment of her unallocated support and to compel
discovery. Likewise, [p]laintiff incurred counsel fees
in connection with the preparation of the [a]mended
[d]ual [f]inal [j]udgment of [d]ivorce to compel
[d]efendant's timely payment of alimony via wage
garnishment and to effectuate equitable distribution.
viii. Factor Nine (9): Any Other Factors Bearing On
The Fairness Of An Award:
The [c]ourt does not find that any other factors
bear on the fairness of the award.
After addressing the RPC 1.5(a) factors, the judge made the following
findings in the conclusion section of the opinion: "As the [c]ourt understands it,
the fees and costs of plaintiff incurred in this matter total $80,694.34. The
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[c]ourt will simultaneously, with these reasons, enter an order requiring
[d]efendant to pay $40,000[] in fees to [p]laintiff as a result of the factors set
forth above."
On appeal, defendant argues the counsel fee award was unsupported by
the record. He challenges the judge's findings that: 1) defendant reduced his
earnings during the divorce; 2) defendant threatened plaintiff economically
during the divorce; and 3) defendant's self-represented status prolonged the
litigation. Defendant argues the findings regarding the quantum of plaintiff's
fees were unreasonable because plaintiff sought post-judgment fees, plaintiff
caused the incurrence of fees by constantly emailing her attorneys, and the
amount of time counsel billed was unreasonable. Defendant argues the court
punished him for being self-represented and mechanistically calculated fees by
awarding a sum approximating one-half of the fees incurred without critically
analyzing plaintiff's counsel's billing statements. He asserts no counsel fees
should have been awarded because the Rule 5:3-5(c) factors did not weigh in
plaintiff's favor.
"The assessment of counsel fees is discretionary." Slutsky v. Slutsky, 451
N.J. Super. 332, 365 (App. Div. 2017) (citations omitted). As a result, we review
such determinations for an abuse of discretion. Ibid. In this context, an abuse
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of discretion may arise when the trial judge has not considered and applied the
Rule 5:3-5(c) factors or made inadequate findings to support the award. Clarke
v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003).
In Chestone v. Chestone, we stated:
Where a party, by virtue of his or her need, seeks to
compel the other party to pay all or part of counsel fees
incurred, only those fees that represent reasonable
compensation for such legal services performed and
were reasonably necessary in the prosecution or
defense of the litigation may be awarded. While the
initial focus may appropriately be directed to the time
expended in pursuing the litigation, that is only one of
the factors to be considered. The fee should not be
fixed simply by taking the total time assertedly
expended by counsel and by multiplying the total
number of hours by the charges fixed in a retainer
agreement made between the requesting party and
counsel, to which charges the adverse party never
consented or agreed. In reviewing the requested
allowance, the judge must critically review the nature
and extent of the services rendered, the complexity and
difficulty of the issues determined, and the
reasonableness and necessity of the time spent by
counsel in rendering the legal services.
[322 N.J. Super. 250, 257 (App. Div. 1999) (citations
omitted).]
Here, although the trial judge addressed the Rule 5:3-5(c) factors, her
findings lack an explanation of which factors favored the counsel fee award, and
the "critical[] review" of counsel's billing statements we required in Chestone to
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explain how the judge arrived at the $40,000 amount. See ibid. Although the
judge recited facts under each applicable Rule 5:3-5(c) factor, the recitation of
facts without stating which party they favored hampers our ability to review the
determination.
For these reasons, we vacate and remand the determination for further
findings. We hasten to add that our decision should not be read to criticize the
quantum of the award. Rather, if the judge awards counsel fees, she must
explain how she calculated the figure to enable us to conduct a meaningful
review of the decision. R.M. v. Sup. Ct. of N.J., 190 N.J. 1, 12 (2007); see also
R. 1:7-4(a).
Vacated and remanded. We do not retain jurisdiction.
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