SAMUEL K. BURLUM VS. NERMIN UCAR (FM-19-0035-15, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-2471-17T4
SAMUEL K. BURLUM,
Plaintiff-Appellant,
v.
NERMIN UCAR,
Defendant-Respondent.
_____________________________
Argued telephonically May 4, 2020 –
Decided May 19, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FM-19-0035-15.
Janet S. Del Gaizo argued the cause for appellant.
Thomas Joseph DeCataldo, Jr. argued the cause for
respondent (Skoloff & Wolfe, P.C., attorneys; Thomas
Joseph DeCataldo, Jr., on the brief).
PER CURIAM
Plaintiff appeals from a December 19, 2017 amended dual judgment of
divorce (AJOD) and multiple other orders entered by different family part
judges.1 Judge Noah Franzblau issued the AJOD after conducting an eleven-
day trial. The judge made extensive findings and conclusions of law, which
appear in his eighty-four-page written decision, with which we substantially
agree. We therefore affirm.
On appeal, plaintiff argues:
POINT I
WHEN CUSTODY OF DIVORCED OR SEPARATED
PARENTS IS AT ISSUE, "THE RIGHTS OF BOTH
PARENTS SHALL BE EQUAL[,]" N.J.S.A. 9:2-4.2[.]
POINT II
THE TRIAL JUDGE ERRED WHEN HE DECLARED
. . . PLAINTIFF AN UNFIT PARENT WITHOUT
MAKING ANY FINDINGS THAT HIS CONDUCT
HAS A SUBSTANTIAL ADVERSE EFFECT ON THE
CHILD[,] N.J.S.A. 9:2-4.4(C)[.]
POINT III
THE TRIAL JUDGE FAILED TO ADEQUATELY
PROTECT THE CHILD'S BEST INTERESTS WHEN
HE REFUSED TO PERMIT PLAINTIFF TO CALL
1
These orders include: seven paragraphs of a January 23, 2015 order; three
paragraphs of a February 13, 2015 order; one paragraph of an October 28, 2016
order; two paragraphs of a December 16, 2016 order; three paragraphs of a May
12, 2017 order; and, on a limited remand, a December 19, 2018 order.
A-2471-17T4
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WITNESSES FROM [THE DIVISION OF CHILD
PROTECTION AND PERMANENCY (DCPP)] TO
TESTIFY, AND FAILED TO ADMIT THE [DCPP]
REPORT INTO EVIDENCE[.]
POINT IV
THE FIRST JUDGE'S CREDIBILITY FINDINGS,
BASED ONLY ON CONFLICTING MOTION
PAPERS AND HIS GUT FEELING, UNFAIRLY
PREJUDICED . . . PLAINTIFF THROUGHOUT THE
ENTIRETY OF THE LITGATION, INCLUDING THE
FINAL DECISION[.]
POINT V
A CHILD'S BEST INTERESTS ARE NOT
ADEQUATELY REPRESENTED WHERE HE HAS
NO LEGAL COUNSEL, A PARTY APPEARS PRO
SE, AND THE ISSUE UNDER REVIEW IMPACTS
THE BEST INTERESTS OF THE CHILD[.]
POINT VI
THE SECOND JUDGE COMMITTED HARMFUL
ERROR WHEN HE ALLOWED . . . DEFENDANT TO
MOVE FROM SUSSEX COUNTY TO BERGEN
COUNTY WITH THE INFANT CHILD, PROVIDING
DEFENDANT WITH DE FACTO LEGAL AND
RESIDENTIAL CUSTODY, AND IRREPARABLY
CHANGING THE MARITAL STATUS QUO[.]
POINT VII
THE TRIAL JUDGE'S FAILURE TO
RETROACTIVELY ADJUST PLAINTIFF'S
PENDENTE LITE SUPPORT IS IN CONFLICT WITH
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3
HIS FINDINGS OF FACT RELATIVE TO THE
MARITAL LIFESTYLE[.]
POINT VIII
THE TRIAL [JUDGE'S] LEGAL FEE AWARD OF
$60,000 TO DEFENDANT IS DUPLICATIVE,
PUNITIVE IN NATURE, AND SO FAR EXCEEDS
PLAINTIFF'S ABILITY TO PAY THAT IT MUST BE
REVERSED[.]
In his reply brief, plaintiff makes the following additional contentions, which
we have re-numbered:
POINT IX
THE RECORD IS DEVOID OF THE TYPE OF
EVIDENCE REQUIRED TO SUPPORT AN
UNFITNESS DECLARATION[.]
POINT X
THE TRIAL [JUDGE] ERRED BY DISREGARDING
CREDIBLE EVIDENCE SHOWING THAT
DEFENDANT IS INTENTIONALLY AND
WILLFULLY TRYING TO DISAFFECT . . .
PLAINTIFF AND [THE] CHILD[.]
POINT XI
THE TRIAL [JUDGE'S] FAILURE TO CONSIDER
EVIDENCE ESSENTIAL TO THE CHILD'S BEST
INTEREST[S] DEMANDS A REMAND[.]
A-2471-17T4
4
POINT XII
PLAINTIFF WAS UNFAIRLY PREJUDICED BY
THE FIRST JUDGE'S IMPROPERLY MADE
CREDIBILITY FINDINGS SUCH THAT HE WAS
TREATED UNFAIRLY AND INEQUITABLY,
RESULTING IN THE [JUDGE'S] FAILURE TO
PROPERLY ENSURE THAT THE CHILD'S BEST
INTERESTS ARE PROTECTED[.]
POINT XIII
WHAT IF PLAINTIFF'S "CONSPIRACY
THEORIES" ARE NOT THEORIES AT ALL?
In our review of a non-jury trial, we defer to a trial judge's factfinding
"when supported by adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 412 (1998). We also note proper factfinding in divorce litigation
involves the Family Part's "special jurisdiction and expertise in family matters,"
which often requires the exercise of reasoned discretion. Id. at 413. In our
review, "[w]e do not weigh the evidence, assess the credibility of witnesses, or
make conclusions about the evidence." Mountain Hill, L.L.C v. Township of
Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (alteration in original)
(quoting State v. Barone, 147 N.J. 599, 615 (1997)). Consequently, when this
court concludes there is satisfactory evidentiary support for the trial judge's
findings, "its task is complete[,] and it should not disturb the result." Beck v.
A-2471-17T4
5
Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162
(1964)).
In bench trials, like here, our "[d]eference is especially appropriate 'when
the evidence is largely testimonial and involves questions of credibility.'"
Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J.
108, 117 (1997)). We recognize a trial judge who observes witnesses and listens
to their testimony, develops "a 'feel of the case,'" N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 293 (2007)), and is in the best position to "make
first-hand credibility judgments about the witnesses who appear on the stand. "
Ibid. In contrast, review of the cold record on appeal "can never adequately
convey the actual happenings in a courtroom." N.J. Div. of Youth & Family
Servs. v. F.M., 211 N.J. 420, 448 (2012).
Judge Franzblau made extensive credibility findings. He found defendant
credible in all material respects. But, he found plaintiff "incredible." He
reached that independent determination—which was the same finding made by
an earlier judge—after an eleven-day trial and a detailed review of the
testimony. He found plaintiff's statements "def[ied] truth, logic, and any
objective interpretation of the facts." According to the judge, plaintiff was
A-2471-17T4
6
"unable to provide adequate or reasonable explanations for his conduct and/or
statements." Although there are additional examples in the record supporting
his findings, the judge outlined nine separate reasons "only as a sample to
demonstrate the basis for . . . finding that [p]laintiff [was] not credible."
Contrary to plaintiff's contention, the judge did not make an erroneous
custody determination. Applying N.J.S.A. 9:2-4, the judge concluded that it
would be in the best interests of the child to award defendant sole legal and
physical custody. In his written decision, the judge found that statute factors
one, two, three, four, seven, eight, ten, twelve, and thirteen weighed in favor of
awarding defendant custody, and that none of the factors weighed in plaintiff's
favor. In reaching that conclusion, the judge emphasized the importance of
plaintiff's lack of credibility, "his demonstrated lack of stability, the parties'
inability to agree[,] . . . [p]laintiff's untenable positions that prevented
compromise, [his] persistent failure to acknowledge fathering another child, and
concerns regarding [p]laintiff's general fitness." The judge did not make
summary conclusions, but rather he pointed to evidence adduced at trial to
support his findings.
Plaintiff argues, however, that the judge did not treat his parental rights in
parity with those of defendant, resulting in an erroneous custody determination.
A-2471-17T4
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Along those lines, he argues that: (1) he was operating at a disadvantage during
this entire matter due to the judge's bias against him; (2) his capacity to
demonstrate his ability to care for the child was hampered by a presumption that
he was an unfit parent who was entitled to only limited parenting time; and (3)
his efforts to improve himself and create a stable home for the child were
dismissed out-of-hand.
Plaintiff is correct that "[i]n any proceeding involving the custody of a
minor child, the rights of both parents shall be equal[.]" N.J.S.A. 9:2-4.
However, the record supports the various rulings during the pendency of the
litigation that limited the child's exposure to plaintiff, especially given plaintiff's
behavior and lifestyle. The judge's findings of fact, which we need not detail
here, are indeed supported by the record. Contrary to plaintiff's contention, the
judge did not reach an erroneous custody determination.
Plaintiff argues that the judge erroneously declared him unfit without
finding that his conduct caused a substantial adverse effect on the child. He also
asserts that the judge erred by failing to provide him with a "pathway" back to
joint legal custody or guidance for increasing his parenting time. Plaintiff is
correct that "[a] parent shall not be deemed unfit unless the parent['s] conduct
has a substantial adverse effect on the child." N.J.S.A. 9:2-4(c). But the record
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supports the judge's findings and conclusions that plaintiff negatively affected
the child.
For example, the record demonstrates that plaintiff: (1) failed to spend
consistent time with the child in the marital home both before and after the
parties decided to divorce; (2) failed to pay child support; (3) continued working
at Extreme Energy Solutions (EES) for the better part of a decade without
drawing any part of the $250,000 salary to which he was entitled under EES
documents; (4) committed fraudulent conduct that had resulted in the imposition
of a $1,100,000 fine and other outstanding debts 2; (5) engaged in a pattern of
manipulative and deceitful behavior as to his available monies, residence,
marital status and fatherhood; (6) lied about his dealings with defendant during
the pendency of this case; (7) pursued extramarital affairs, offered monies to his
paramours; (8) did not serve as an appropriate role model; (9) treated defendant
with open hostility while in the child's presence; (10) failed to secure a residence
2
In In re Burlum, No. A-3316-17 (App. Div. Sept. 20, 2019) (slip op. at 8-9),
we upheld a January 18, 2018 Final Decision by the Chief of the New Jersey
Bureau of Securities (the Bureau Chief) concluding that plaintiff and EES
violated the New Jersey Uniform Securities Law, N.J.S.A. 49:3-47 to -83. The
Bureau Chief determined that they violated the law by "selling unregistered
securities, acting as an unregistered agent, employing unregistered agents, and
making untrue statements of material facts and omitting material facts necessary
in order to make the statements they made not misleading." Id. at 1. The Bureau
Chief imposed $1,125,000 in penalties.
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that he was financially capable of maintaining; and (10) displayed a general lack
of trustworthiness. Thus, as to plaintiff's purported path towards self-
improvement and increased role in the child's life, under the facts of this case,
the record reveals the opposite and instead supports the judge's findings.
Plaintiff contends that the judge erred by refusing to admit DCPP's report,
pertinent to allegations that plaintiff had abused the child, and by refusing to
permit plaintiff to call DCPP witnesses regarding those allegations. We see no
abuse of discretion as to either evidentiary ruling. In his final decision, the judge
stated:
Defendant made several complaints to [DCPP]
expressing concerns about injuries sustained by [the
child], sexualized behaviors, and general concern for
[the child's] safety with [p]laintiff. Ultimately, [DCPP]
determined [d]efendant's allegations to be unfounded.
During trial, [d]efendant stipulated to [DCPP's]
conclusions. As a result, this [c]ourt precluded
[p]laintiff from introducing [DCPP's] confidential
reports and associated documents and from calling
[DCPP] investigators as witnesses. While [p]laintiff
continued to assert that [DCPP] materials would
establish that [d]efendant was making false allegations
to obtain custody, [p]laintiff made no proffer with
respect to any [DCPP] document that reached that
conclusion. As a result, this [c]ourt determined that the
interest in maintaining the confidentiality of the
[DCPP] documents outweighed any justification for
their release and/or publication during trial. Further, as
noted by Dr. Fridman, "[i]t seemed to me that
[defendant] was not using the term physical abuse,
A-2471-17T4
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appropriately perhaps because English is her second
language and I pointed out to her that the example she
had just given would be a question of [plaintiff]
considering putting [the child] in a situation which
might be physically dangerous. This was not the
common use of the term physical abuse . . . .
[Defendant] said okay and agreed to this distinction[.]"
Given the circumstances, this [c]ourt found no
justification for the use of the [DCPP] documents or to
call [the DCPP] witnesses during trial.
Plaintiff now argues that the judge failed to protect the child's best
interests and safety when it refused to permit plaintiff to present testimony from
DCPP investigators and admit DCPP's file. Plaintiff insists that: (1) the file
was replete with relevant information; (2) the reports in the file and the
testimony from the DCPP witnesses would have revealed that defendant
intentionally made videos of the child exhibiting sexualized behavior in order to
"induce" a referral to DCPP in an effort to sever plaintiff's relationship with the
child, and that in doing so defendant harmed the child; (3) defendant
acknowledged the relevance of the DCPP file when she asked the judge to
release it during discovery; and (4) the DCPP file was the only unbiased
evidence "available in this case that focuse[d] solely on the child's welfare."
Although defendant sought the file's disclosure during discovery, which
the judge granted because of the possibility it contained crucial information, this
did not establish its admissibility at trial. As defendant notes, the rules
A-2471-17T4
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pertaining to discovery are far broader than evidence rules at trial. Moreover,
once DCPP found the abuse allegations were unfounded, the DCPP file had no
relevancy at trial. Contrary to plaintiff's representations, he did not make a
satisfactory proffer regarding the usefulness of the file. Although he claimed
that the materials in the file would show that defendant intentionally made false
allegations against him and harmed the child in the process, he did not identify
any document containing these conclusions. He had no answer when asked how
the DCPP witnesses could testify to defendant's intent. He also admitted at trial
that he had not made an allegation to DCPP that defendant harmed the child.
Moreover, plaintiff's claim that the DCPP's file was the only unbiased
evidence addressing the child's best interests is inaccurate. The judge had the
benefit of the reports prepared by Dr. Dennis Shaning and Dr. Morton Fridman,
as well as their trial testimony. Although plaintiff suggests that these reports
were useless because they were tainted by a prior judge's credibility findings in
January 2015, the trial judge found that the doctors properly based their
conclusions upon their expertise.
Plaintiff contends that the judge improperly required him to pay half of
the costs of the marital home pending its sale, authorized the sale of the marital
home, and permitted defendant to move to another county with the child.
A-2471-17T4
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Plaintiff concedes trial judges have discretionary authority to order the sale of
marital assets pendente lite when "fit, reasonable, and just." Randazzo v.
Randazzo, 184 N.J. 101, 114 (2005). He insists, however, that by allowing the
home to be put on the market in January 2015, the judge rendered an improper
de facto pendente lite custodial decision, which paved the way for defendant to
relocate with, and deny plaintiff access to, the child. According to plaintiff, the
judge's subsequent order, which did in fact permit defendant to move prior to
trial, "forever alter[ed] the pendente lite status quo[] and provid[ed] [d]efendant
with de facto custody to . . . [p]laintiff's exclusion." We see no abuse of
discretion here.
Plaintiff ignores that: (1) he twice agreed to sell the marital home and
then reneged; (2) the parties could not afford to live in that home without
plaintiff making a steady financial contribution; (3) both Dr. Shaning and Dr.
Fridman agreed that plaintiff had a narcissistic/sociopathic personality and was
unreliable and unstable in all aspects of his life, and the judge had the benefit of
these expert opinions when he permitted defendant to relocate; (4) he harmed
the child by his absenteeism and disinterest after the child was born; (5) he had
two years to obtain stable housing and employment and failed to do so; and (6)
defendant demonstrated her ability to care for the child and that she needed to
A-2471-17T4
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be closer to New York to get her business functional so that she could provide
for the child. Plainly, the judge's decisions were made not to harm plaintiff, but
to ensure that a responsible individual cared for the child.
Plaintiff also contends that the trial judge improperly altered the status
quo pendente lite by requiring him to financially contribute towards the marital
home. Although plaintiff insists that defendant had voluntarily agreed to
"support[] the family," defendant drew upon her premarital assets to pay the bills
out of necessity after plaintiff's financial duplicity became apparent. Plaintiff
admitted he knew that the home was beyond their means at the time they bought
it and confirmed that he contributed some funds to assist with carrying costs.
Moreover, plaintiff agreed in November 2014 to give defendant $2200 per
month to assist with the bills for the home in which he continued to reside. The
judge did not alter the status quo by mandating a payment of $2500.
We reject plaintiff's contention that the judge abused his discretion by
declining to retroactively adjust his support arrears. He contends the support
orders that obligated him to pay half of the marital home's carrying costs pending
its sale were not in accordance with the parties' marital lifestyle because their
lifestyle revealed defendant was responsible for all marital expenses. The judge
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found that the sole evidence of the parties' marital lifestyle was their expensive
home, which required defendant use her savings to maintain. He stated:
Defendant attempted to implement a standard of
living that was consistent with her premarital standard
of living. This [c]ourt finds that [d]efendant's standard
of living was premised on [p]laintiff's representation
that she would no longer have to work following EES's
impending initial public offering and [p]laintiff taking
[a] salary. When EES and [p]laintiff became immersed
in the [Bureau] litigation and [p]laintiff continued to
forfeit his salary, the marital lifestyle implemented by
[d]efendant could not be maintained. The marital
lifestyle essentially entailed owning and maintaining a
luxury home. Unfortunately, since [d]efendant had
shuttered her business to move to Sussex County, and
[p]laintiff did not draw [a] salary from EES and EES
did not complete the initial public securities offering,
[d]efendant had to contribute pre-marital assets to
maintain the marital lifestyle, including specifically the
marital residence until it could be sold. Aside from the
home, the parties did not live extravagantly. There was
no evidence presented that the parties dined out,
traveled or vacationed, purchased any luxury items or
shopped for anything other than necessities.
The judge addressed plaintiff's contention as to the pendente lite award in
defendant's favor. The judge rejected plaintiff's argument that he incorrectly
attributed him an annual income of $250,000. The judge noted that plaintiff had
agreed to "forfeit" salaries, commissions, bonuses and benefits worth $250,000
per year from 2009 through 2012, in favor of receiving 10,000,000 shares of
EES stock. The judge found that plaintiff inadequately explained his failure to
A-2471-17T4
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receive any salary from EES, emphasizing that plaintiff: (1) did not demonstrate
that he asked the EES board for a salary and was denied; (2) did not provide any
financials indicating that EES could not afford to pay him a salary; (3) had been
touted as invaluable to EES; and (4) offered no explanation as to why EES, by
contrast, was willing to pay a salary of $40,000 to an employee who lacked
industry experience. The judge concluded that "it would appear that [p]laintiff's
receipt of no annual salary has been a strategic decision potentially made by
[p]laintiff to limit his financial obligation to [d]efendant . . . and that [p]laintiff
has been able to secure financial resources through other means that are beyond
[d]efendant's reach."
The judge also observed that plaintiff failed to provide any evidence that
he sought other employment opportunities. Moreover, he questioned plaintiff's
financial representations, noting that plaintiff: (1) failed to disclose his receipt
of $102,934 from IMobile on January 10, 2015; (2) failed to identify the source
of the $10,000 he claimed he earned from his LGBT article; and (3) managed to
provide other women with money to cover their living expenses and pay for a
sex machine. In sum, the judge concluded:
Plaintiff's claim in support of his limited earning
capacity is contradicted by his own representation of
his value to EES, EES's board members'
acknowledgment of [p]laintiff's value to EES as well as
A-2471-17T4
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by [p]laintiff's entrepreneurial skills and his consistent
access to funds, which access has allowed [p]laintiff to
buy a home and support other women and personal
endeavors. For the foregoing reasons, this [c]ourt finds
the imputation of $250,000 of annual income to
[p]laintiff to be reasonable both retroactively and
prospectively.
Although plaintiff now renews his position that the pendente lite support
orders do not comport with the marital lifestyle, no retroactive adjustment was
warranted. Contrary to plaintiff's representations, the "marital lifestyle" here
consisted of defendant involuntarily paying the parties' household bills with her
premarital assets out of necessity because plaintiff's representations as to his
impending wealth were entirely false. Moreover, plaintiff ignores that he
offered to pay defendant $2200 per month starting in November 2014, which
was only $300 less than the court-ordered monthly payment that he failed to
pay.
Plaintiff contends that the judge abused his discretion by awarding
defendant $60,000 in counsel fees. The award of counsel fees and costs in a
matrimonial action rests in the trial judge's discretion. R. 5:3-5(c); Eaton v.
Grau, 368 N.J. Super. 215, 225 (App. Div. 2004); Guglielmo v. Guglielmo, 253
N.J. Super. 531, 554-55 (App. Div. 1992). In deciding whether to make such an
award, the judge should consider
A-2471-17T4
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(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.
[R. 5:3-5(c).]
Success in the litigation of the parties' dispute is not a prerequisite for an
award of counsel fees. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App.
Div. 2002); Guglielmo, 253 N.J. Super. at 545. Also, where one party acts in
bad faith, the parties' relative economic positions are of little relevance because
the fee award is then intended "to protect the innocent party from unnecessary
costs and to punish the guilty party." Yueh v. Yueh, 329 N.J. Super. 447, 461
(App. Div. 2000).
The court in Kelly v. Kelly, 262 N.J. Super. 303 (Ch. Div. 1992),
discussed the issue of counsel fees in matrimonial cases.
Fees in family actions are normally awarded to permit
parties with unequal financial positions to litigate (in
good faith) on an equal footing. With the addition of
bad faith as a consideration, it is also apparent that fees
may be used to prevent a maliciously motivated party
from inflicting economic damage on an opposing party
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by forcing expenditures for counsel fees. This purpose
has a dual character since it sanctions a maliciously
motivated position and indemnifies the "innocent"
party from economic harm.
[Id. at 307 (citations omitted).]
The Kelly court defined bad faith as intentionally misleading or deceiving
another, thereby precipitating legal action, and noted that more than a simple
mistake was required before a party would be found guilty of bad faith. Ibid.;
accord Von Pein v. Von Pein, 268 N.J. Super. 7, 19-20 (App. Div. 1993). Other
examples of bad faith include misusing or abusing the court process, seeking
relief not supported by fact or law, intentionally misrepresenting facts or law, or
otherwise engaging in vexatious acts for oppressive reasons. Borzillo v.
Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992).
According to Rule 1:7-4(a), a judge in a non-jury trial and on motion must
"by an opinion or memorandum decision, either written or oral, find the facts
and state its conclusions of law." "[F]ailure to perform the fact[]finding duty
'constitutes a disservice to the litigants, the attorneys and the appellate court.'"
Chambon v. Chambon, 238 N.J. Super. 225, 231-32 (App. Div. 1990) (quoting
Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)). When a trial judge fails to set
forth the reasons for his or her opinion, meaningful appellate review is inhibited.
Id. at 232. The absence of adequate findings will generally warrant a reversal
A-2471-17T4
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of the trial judge's decision. Gordon v. Rozenwald, 380 N.J. Super. 55, 79 (App.
Div. 2005); Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App.
Div. 2003); Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996).
In awarding counsel fees to defendant, the judge first found that, while
defendant demonstrated that her liabilities exceeded her assets, plaintiff's net
worth could not be ascertained based upon the information he provided.
Next, the judge noted that although defendant paid $263,855 towards her
outstanding fees by depleting her pre-marital savings and by borrowing funds
from her business' defined benefit plan and other third parties, she still owed
more than $40,000 to her counsel. Plaintiff, by contrast, did not owe monies to
counsel. Although plaintiff's financial circumstances were unclear, the judge
was satisfied that⸻as evidenced by his demonstrated ability to raise funds for
his housing and lifestyle, such as his support of other women and acquisition of
a sex machine⸻plaintiff had the ability to contribute towards defendant's fees.
Next, the judge found that while the parties' positions regarding custody and
child support were advanced in good faith, plaintiff's claim for alimony was not.
He also noted that defendant was awarded counsel fees on five prior occasions
totaling $14,640, of which plaintiff had only paid $2000.
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In considering the results obtained, the judge observed that defendant was
successful in her pursuit of custody and in her opposition to plaintiff's requests
for custody, child support, and alimony. She had not, however, prevailed in her
requests for the judge to allocate a portion of her home equity loss to plaintiff
and to require plaintiff to reimburse her for the depletion of her marital assets
and the other debts she had incurred to support the family and marital home. As
to plaintiff, he was not only unsuccessful in the claims noted above, but he failed
to identify any assets subject to equitable distribution to which he was
entitlement.
Finally, the judge found that plaintiff's questionable conduct during
litigation greatly contributed towards defendant's counsel fees. In particular, he
faulted plaintiff for: (1) refusing to attend his deposition until plaintiff secured
a court order; (2) unjustifiably refusing to answer questions pertaining to EES's
structure and financial condition and also the existence of his second son in
Wisconsin during his deposition and at trial; (3) refusing to pay pendente lite
support and counsel fees in violation of numerous court orders; (4) filing
motions to obtain Judge Farber's oath of office and bond and also to compel the
appearance of out-of-state witnesses with invalid subpoenas; (5) filing repeated
motions on the same issue; (6) his inability to confirm, during cross -
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21
examination, that he had always been truthful with the court; (7) making false
accusations about defendant's failure to include him in the selection of the child's
school, as well as false assertions that he served as the child's primary custodian
when defendant's mother returned to Turkey for several months; (8) reneging on
his initial agreement to sell the marital house and thereby forcing defendant to
file multiple motions; and (9) falsely claiming that defendant had interfered with
his ability to attend Dr. Shaning's deposition.
In sum, the judge concluded:
In the context of [d]efendant's fee request, this
[c]ourt finds that the attorney['s] fees charged by
[d]efendant's attorneys are reasonable . . . especially
based upon the contentiousness at every juncture. . . .
However, recognizing that many, but not all, tasks
would have had to be performed by [d]efendant
regardless of [p]laintiff's questionable litigation
conduct (e.g. deposing [p]laintiff, preparing a pendente
lite motion, participating in discovery, and preparing a
trial brief), and the fact that the [c]ourt found that the
custody issue was pursued by both parties in good faith,
this [c]ourt awards fees to [d]efendant only in [the]
amount that this [c]ourt believes [was] incurred as a
result of [p]laintiff's questionable tactics. On this basis,
this [c]ourt orders that [p]laintiff reimburse [d]efendant
for $60,000 of her attorney['s] fees.
Plaintiff now contends that the judge's counsel fee award must be reversed
because: (1) it was duplicative, as plaintiff had already been ordered to pay
$14,640 for his bad faith conduct during this case; (2) it was punitive in nature;
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and (3) it exceeded his ability to pay. Contrary to plaintiff's representation, the
award is not duplicative because plaintiff only paid $2000 towards those earlier
fee awards. As such, the judge included the remaining $12,640 in his final
$60,000 award. In support of his final award, the judge set forth other examples
of plaintiff's untoward conduct apart from the matters that gave rise to the earlier
awards.
Moreover, the judge thoroughly considered the plaintiff's economic
situation, and his findings should not be disturbed based upon plaintiff's self-
serving, unsubstantiated claims that he cannot afford to pay the fee award. As
defendant points out, plaintiff managed to fund this appeal, thereby confirming
the judge's finding that he has access to monies.
Affirmed.
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