ROLAND M. NEWLAND VS. MARIA A. NEWLAND (FM-03-0966-15, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-0482-19T2
ROLAND M. NEWLAND,
Plaintiff-Appellant,
v.
MARIA A. NEWLAND,
Defendant-Respondent.
________________________
Submitted December 9, 2020 – Decided January 21, 2021
Before Judges Ostrer, Accurso, and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-0966-15.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the briefs).
Graziano & Flynn, PC, attorneys for respondent
(Ronald A. Graziano and Karina E. Hehn, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Roland M. Newland
appeals from the September 20, 2019 denial of his motion for reconsideration,
as well as the underlying orders preceding this denial, which reformed the
judgment of divorce (JOD) in favor of defendant Maria A. Newland. He also
appeals from the January 24, 2020 order awarding defendant counsel fees. We
affirm the challenged orders, substantially for the reasons set forth by Judge
James J. Ferrelli's well-reasoned, comprehensive opinions.
I. The Parties' Education, Marital and Work History
Defendant was born in Spain in 1963 and has the equivalent of a high
school diploma. Plaintiff was born in Panama in 1950 and has a medical degree.
The parties married in 1988 and had a daughter together in 1993. Defendant
performed data entry and secretarial work in the early years of the parties'
marriage, but stopped working in 1998. She bore primary responsibility for
raising the parties' daughter, and plaintiff was the principal wage earner
throughout the parties' marriage. Due to injuries defendant suffered in an
automobile accident in 2013, she cannot sit or stand for long periods of time,
takes several prescribed medications and uses a cane to walk outside her home .
During the marriage, the parties constantly moved to enhance plaintiff's
career. In 2001, plaintiff was employed as a physician for the Bureau of Prisons
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(Bureau) in Mississippi and in 2015 transferred from the Bureau to the
Department of Defense (Department), Veteran's Affairs. When he retired from
the Department in 2017, his gross income was approximately $205,000. In
2018, plaintiff began working as a contract physician at a federal prison in
Mississippi, and his total gross income was $325,771.
The parties experienced marital and financial difficulties in the years
leading up to their divorce in 2015. In 1997, plaintiff filed individually for
bankruptcy but did not inform defendant. Additionally, he relocated to Puerto
Rico in 1998, without defendant, to pursue his career. As a result of the parties'
separation, defendant moved back to Spain with the parties' daughter.
The record reflects plaintiff did not provide financial support to defendant
for some time after the separation, so she initiated a job search. When defendant
received a job offer in 1999, plaintiff urged her to decline the offer and care for
their daughter. Plaintiff also promised he would resume supporting the family.
Defendant agreed to this arrangement and never returned to the job market.
Although the parties reconciled in 2000, defendant continued to live in
Spain, whereas plaintiff worked at different locations in the United States. In
March 2015, while living in New Jersey, plaintiff filed a pro se complaint for
divorce, seeking only the dissolution of the parties' marriage. Further, he wrote
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"N/A," on various lines of the complaint form to confirm issues pertaining to
custody, child support, alimony, or equitable distribution were "not applicable"
in his divorce action. At the time of his filing, the parties had not yet reached
any formal agreement on these issues.
In April 2015, the parties drafted two versions of a support agreement,
one in English (ESA), and the other in Spanish (SSA). According to defendant,
she prepared the SSA consistent with plaintiff's instructions. On April 16, 2015,
the parties signed the ESA and SSA before a notary public in New Jersey. The
ESA confirmed plaintiff would pay permanent alimony and that the parties'
daughter would have plaintiff's "full financial support until she completes her
education goals." Both versions of the agreements provided for plaintiff to pay
defendant approximately 3000 Euros per month.
On April 17, 2015, the parties appeared at the Spanish Consulate in New
York and signed a property agreement (PA), which allowed plaintiff to retain
exclusive rights to his Thrift Savings Plan (TSP) and provided defendant with
exclusive rights to the parties' home in Spain. Defendant subsequently testified
that when the PA was prepared, she believed the parties' only assets were the
home in Spain, the TSP, and their two vehicles.
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In July 2015, plaintiff filed a request to enter default. The trial court
granted plaintiff a default JOD on October 19, 2015. The JOD referenced, but
did not expressly incorporate, the terms of the ESA. Defendant was living in
Spain at this time and did not appear at the default hearing. It is undisputed that
she was not represented by counsel throughout the divorce action.
II. The Parties' Post-Judgment Litigation
In 2018, plaintiff fell behind in his alimony payments and defendant
moved to enforce the JOD. She also sought to modify the JOD, pursuant to Rule
4:50-1, seeking equitable distribution of the marital portions of plaintiff's
Federal Employee Retirement System (FERS) Annuity (which generated gross
income of $6378 per month), and his Veteran's Administration (VA) benefits
(which generated income of $140.05 per month). Defendant claimed she
previously was unaware she had rights to these assets. Further, defendant moved
for leave to file a Tevis1 claim for fraud, alleging plaintiff allowed two
judgments to be entered against her during the marriage without her knowledge,
and following the entry of the JOD, he created a potential tax liability for her by
filing joint tax returns in 2016 and 2017. In response, plaintiff cross-moved for
enforcement of the JOD.
1
Tevis v. Tevis, 79 N.J. 422 (1979).
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On November 30, 2018, Judge Ferrelli enforced the JOD and compelled
plaintiff to satisfy his alimony arrears. Further, the judge found defendant
demonstrated "a prima facie case of overreaching conduct" by plaintiff, and that
her signature on the ESA "was not knowing and voluntary, but rather was
coerced and based upon incomplete and inaccurate information provided by"
plaintiff. The judge declined to find the ESA "was intended to encompass all
terms of the parties' agreement relating to the resolution of issues pertaining to
their divorce." Moreover, the judge found the issues pertaining to the two
judgments against defendant, as well as any potential tax liability arising from
plaintiff's post-judgment filing of joint tax returns, were "more appropriately
addressed in the context of equitable distribution." The judge ordered discovery
and a plenary hearing "to determine the extent to which, if at all, the [JOD] and
the [ESA] should be reformed," consistent with Rule 4:50-1(f). Additionally,
he denied without prejudice each party's request for counsel fees.
Prior to the plenary hearing, plaintiff filed a motion to modify or terminate
his alimony obligation, based on his prospective retirement. On April 18, 2019,
Judge Ferrelli entered an order deferring plaintiff's motion until the plenary
hearing. Also, the judge directed plaintiff to provide outstanding discovery as
well as a prior and current Case Information Statement. Additionally, the judge
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ordered the parties to provide supplemental submissions regarding the issue of
alimony. Defendant complied and filed a supplemental brief, opposing any
change to her alimony payments; plaintiff failed to submit a supplemental brief.
III. The Plenary Hearing
On May 9, 10 and 13, 2019, Judge Ferrelli heard testimony from the
parties on all outstanding issues. He found the parties presented "extensive
conflicting testimony regarding their marital assets and liabilities ," and that
"[n]either party's testimony regarding the Property Agreement is completely
credible." However, based upon the evidence presented as well as the parties'
conduct following the entry of the JOD, the judge concluded the PA, allowing
defendant to retain the Spain home and plaintiff to keep his TSP, should not be
disturbed. He deemed this exchange to be a "fair and equitable distribution of a
portion of the marital property between the parties," and that the parties
"knowingly and voluntarily entered into that Agreement." Further, the judge
concluded plaintiff's "testimony that the Property Agreement resolves all
equitable distribution issues in this matter is not credible. He . . . had not
provided [defendant] with information about his FERS pension or his VA
[b]enefits" at the time it was executed. The judge added:
[b]y failing to disclose [the FERS pension and VA
benefits] Husband intentionally misrepresented to Wife
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that the FERS retirement account and the VA
retirement account were not subject to equitable
distribution in connection with the parties' 2015 divorce
proceedings. Husband intentionally failed to include
Wife in the . . . bankruptcy filing, and excluded Wife
from pertinent information and knowing participation
in the filing of the parties' income tax returns, resulting
in judgments being entered against Wife. Husband took
advantage of his superior financial position and
education . . . [and] violated his duty to be fair to his
wife . . . . [T]he court finds that Wife satisfied her
burden of proof in showing exceptional circumstances
under Rule 4:50-1(f) limited to the referenced equitable
distribution issues such that it is appropriate to reform
the parties' Agreement solely as to those noted issues.
As Judge Ferrelli was satisfied defendant "did not know about [plaintiff's]
retirement accounts, and therefore could not and did not surrender her interest
in those accounts when she executed the Property Agreement," he awarded her
half of "the marital coverture portion of the FERS Annuity and the Veteran's
benefits, plus gains and losses on her share, as part of equitable distribution ."
Further, because defendant was unaware of the existence of a 1998 foreclosure
judgment and a 2012 tax judgment against her, the judge concluded plaintiff
should bear responsibility for any future claims stemming from these judgments.
Similarly, the judge directed plaintiff to assume all responsibility for any tax
liability arising from his post-judgment joint tax return filings. The judge did
not believe plaintiff's claim that he "mistakenly" filed these returns. Instead,
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Judge Ferrelli concluded that plaintiff filed joint tax returns after the divorce
"because he believed it was financially advantageous to him."
Judge Ferrelli denied without prejudice plaintiff's request to modify or
terminate his alimony obligation and found:
the facts presented to the court in this proceeding
established that it would be inequitable at this time to
terminate or modify Husband's alimony obligation,
because his alimony is Wife's sole source of support
and has been for over 20 years . . . . [B]ased on her age,
the location where she lives, her outdated skills and her
physical limitations, it is very unlikely that she will find
meaningful employment at the age of 55. In contrast,
. . . Husband is presently healthy and remains employed
with substantial financial benefits and no significant
debts.
Further, the judge concluded plaintiff grossed $206,000 in the year the
parties divorced, and by 2018, plaintiff grossed $260,400 per annum as a
contract physician. Also, the judge determined plaintiff enjoyed additional
income from other sources, including his FERS annuity of $6378 per month,
plus VA benefits of $140.05 net per month. The judge calculated plaintiff's
gross earned and unearned income for 2018 was $325,771.
Based on the judge's assessment of the parties' respective personal and
financial circumstances, he determined plaintiff's request was "not ripe for
adjudication," even though at age sixty-eight, plaintiff had reached a "good faith
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retirement age under N.J.S.A. 2A:34-23(j)(1)." Accordingly, in his June 28,
2019 opinion, the judge provided that after Qualified Domestic Relations Orders
effectuated a division of the coverture portions of plaintiff's FERS annuity and
VA benefits, plaintiff could renew his alimony application, subject to supplying
all necessary supporting documentation and
information, including but not limited to a fully
executed and completed [Case Information Statement]
that accounts for all bank, investment and/or financial
accounts. At a minimum, such application . . . should
include "a specifically detailed, proposed plan for an
actual retirement, as opposed to a non-specific, general
desire to someday retire." Mueller [v. Mueller], 446
N.J. Super. [582], 591 [(Ch. Div. 2016).]
IV. Reconsideration Motion and Counsel Fees
Plaintiff promptly moved for reconsideration of the June 28, 2019 order.
On September 20, 2019, Judge Ferrelli denied the reconsideration motion ,
triggering the instant appeal. Following our temporary remand to allow Judge
Ferrelli to address the parties' counsel fee applications, the judge entered an
order on January 24, 2020, awarding defendant counsel fees in the sum of
$30,819 and denying plaintiff's request for counsel fees. Plaintiff filed an
amended notice of appeal to include the January 24, 2020 order.
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V. Legal Analysis
On appeal, plaintiff argues it was error for Judge Ferrelli to reform the
JOD. Further, he contends that even if defendant was entitled to a modification
of the JOD, the judge improperly disregarded the impact of the reformed JOD
on his ability to pay alimony. Lastly, he argues the court erred in granting
counsel fees to defendant.
Our review of the challenged orders is limited. We owe substantial
deference to a Family Part judge's findings of fact because of the court's special
expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Deference is given to the credibility determinations made by the trial judge who
"hears the case, sees and observes the witnesses, and hears them testify," thus,
affording the trial judge "a better perspective than a reviewing court in
evaluating the veracity of a witness." Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(quoting Cesare, 154 N.J. at 412). "[A] reviewing court should uphold the
factual findings undergirding the trial court's decision if they are supported by
adequate, substantial and credible evidence on the record." MacKinnon v.
MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007)). "Only when the trial court's
conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate
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court intervene and make its own findings to ensure that there is not a denial of
justice." 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. G.L., 191 N.J. 596, 605 (2007)).
On the other hand, we owe no special deference to the judge's legal conclusions.
Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Regarding Judge Ferrelli's reformation of the JOD, it is well established
that a determination on a motion for relief under Rule 4:50-1 is "left to the sound
discretion of the trial court, guided by principles of equity," F.B. v. A.L.G., 176
N.J. 201, 207 (2003), and "should not be reversed unless it results in a clear
abuse of discretion," U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467
(2012). Here, we perceive no such abuse of discretion.
"Voluntary agreements that address and reconcile conflicting interests of
divorcing parties support our 'strong public policy favoring stability of
arrangements' in matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185,
193 (1999) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). Accordingly,
"fair and definitive arrangements arrived at by mutual consent should not be
unnecessarily or lightly disturbed." Id. at 193-94 (quoting Smith, 72 N.J. at
358). Nevertheless, the "law grants particular leniency to agreements made in
the domestic arena, and likewise allows judges greater discretion when
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interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J. Super. 531,
542 (App. Div. 1992). Additionally, "[t]he equitable authority of courts to
modify property settlement agreements executed in connection with divorce
proceedings is well established." Miller v. Miller, 160 N.J. 408, 418 (1999)
(citing Conforti v. Guliadis, 128 N.J. 318, 323 (1992)).
Marital settlement agreements "must reflect the strong public and
statutory purpose of ensuring fairness and equity in the dissolution of
marriages." Ibid. (citing Petersen v. Petersen, 85 N.J. 638, 644 (1981)). Thus,
"[i]f a settlement agreement is achieved through coercion, deception, fraud,
undue pressure, or unseemly conduct, or if one party was not competent to
voluntarily consent thereto, the settlement agreement must be set aside." Peskin
v. Peskin, 271 N.J. Super. 261, 276 (App. Div. 1994). Moreover,
unconscionability in the negotiations of a settlement may serve as a basis for
reforming or setting aside a marital settlement agreement. See Miller, 160 N.J.
at 419. Reformation is appropriate when a court determines the terms of a
marital settlement agreement are unfair or inequitable. Id. at 418.
When evaluating an agreement to determine if it is fair and equitable, or
whether it is unconscionable, a court
must consider issues such as the adequacy of the
agreement at inception, the presumed understanding of
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the parties at that time, the reasonable expectation of
the parties during the life of the agreement, [and] the
manner in which the parties acted and relied on the
agreement.
[Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.
2004) (citing Konzelman, 158 N.J. at 193).]
"[A]pplications for relief from equitable distribution provisions contained
in a judgment of divorce are subject to [Rule 4:50-1] and [are] not, as in the case
of alimony, support, custody, and other matters of continuing jurisdiction of the
court, subject to a 'changed circumstances' standard." Eaton v. Grau, 368 N.J.
Super. 215, 222 (App. Div. 2004) (first alteration in original) (quoting Pressler,
Current N.J. Court Rules, cmt. 1.7 on R. 4:50-1 (2004)). A party may secure
Rule 4:50-1(f) relief from a judgment if there are exceptional or compelling
circumstances which indicate enforcement of the judgment "would be unjust,
oppressive or inequitable." Schwartzman v. Schwartzman, 248 N.J. Super. 73,
77 (App. Div. 1991). Considering subsection (f) contemplates exceptional
circumstances, "each case must be resolved on its own particular facts."
Baumann v. Marinaro, 95 N.J. 380, 395 (1984).
Governed by these standards, we are satisfied Judge Ferrelli did not abuse
his discretion by reforming the JOD pursuant to Rule 4:50-1(f). He reformed
the JOD only after finding defendant demonstrated exceptional circumstances
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warranting that relief, because she was not represented by counsel prior to the
entry of the JOD, she lacked awareness of the parties' financial circumstances
in general, and specifically did not understand she was entitled to seek a portion
of plaintiff's FERS annuity and VA benefits. See Guglielmo, 253 N.J. Super. at
542 (finding that the marital agreement between the parties was unconscionable
and subject to reformation because the wife left her employment at her husband's
request, she was not represented by her own attorney, and she did not handle
any of the family's finances). Judge Ferrelli also found it noteworthy that
plaintiff was "unable to articulate why he marked 'N/A'" in his complaint for
divorce form, relative to equitable distribution of all debts and assets or support
payments. Additionally, the judge observed that before the JOD was entered,
plaintiff did not disclose to the trial court that
the parties jointly owned real property, had other
marital property that was subject to distribution, or that
spousal or child support were issues, inasmuch as
[defendant] was not working and [plaintiff] was
supporting his wife and daughter . . . . [His] failure to
disclose these issues to the court undermines his
credibility in this matter.
"A Family Part judge has broad discretion . . . in allocating assets subject
to equitable distribution." Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div.
2012). Further, "in dividing marital assets the court must take into account the
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liabilities as well as the assets of the parties." Monte v. Monte, 212 N.J. Super.
557, 567 (App. Div. 1986); see also Slutsky v. Slutsky, 451 N.J. Super. 332, 348
(App. Div. 2017). Appellate courts affirm equitable distribution awards "as long
as the trial court could reasonably have reached its result from the evidence
presented, and the award is not distorted by legal or factual mistake." La Sala
v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000) (citing Perkins v. Perkins, 159
N.J. Super. 243, 247-48 (App. Div. 1978)). The award "will be affirmed even
if [we] would not have made the same [ruling] . . . as the trial court." Perkins,
159 N.J. Super. at 247-48.
Considering the record as a whole, it is evident Judge Ferrelli made
extensive credibility and factual findings throughout the parties' post-judgment
litigation. The judge's opinions confirm that before he reformed the JOD, he
considered the length of the parties' marriage, defendant's financial dependence
on plaintiff, her inferior education, her lack of employment since 1998,
plaintiff's lack of candor with the trial court when he sought entry of the default
JOD, and plaintiff's incredible testimony during the plenary hearing. Given the
judge's well-supported findings and our standard of review, we perceive no basis
to disturb Judge Ferrelli's assessment that plaintiff engaged in "overreaching and
fraudulent conduct," warranting reformation of the JOD to allow for a fair
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distribution of the plaintiff's retirement benefits. Indeed, the judge's decision to
reform the JOD was in keeping with the principle that equitable distribution
"reflects a public policy that is 'at least in part an acknowledgment that marriage
is a shared enterprise, a joint undertaking, that in many ways [] is akin to a
partnership.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 284 (2016) (alternation
in original) (internal quotation marks omitted) (quoting Smith, 72 N.J. at 361).
Similarly, we agree with Judge Ferrelli that plaintiff should bear responsibility
for the two judgments entered against defendant without her knowledge, and
that he alone should satisfy any potential tax liability stemming from his
improper filing of joint tax returns in 2016 and 2017.
We also are not persuaded by plaintiff's argument that the trial court erred
by failing to "reassess the judgment of divorce as a whole" and afford him relief
from his alimony payments when reforming the JOD. As Judge Ferrelli made
clear, he did not deny plaintiff's request for modification or termination of
alimony outright; rather, the judge denied these requests without prejudice, and
recognized plaintiff's good-faith retirement age. Therefore, the judge allowed
plaintiff to renew his application, subject to providing proper financial
information and a detailed plan for retirement, after the FERS annuity and VA
benefits were equitably distributed.
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As the judge explained, he could not "determine the extent to which, if at
all, [plaintiff's] alimony obligation should be modified," particularly since
plaintiff remained employed and enjoyed significantly greater income in 2018
than at the time of the parties' divorce. Further, the judge found "it would be
inequitable at this time to terminate or modify [plaintiff's] alimony obligation,
because his alimony is [defendant's] sole source of support and has been for over
[twenty] years."
Consistent with N.J.S.A. 2A:34-23(j), "[a]limony may be modified or
terminated upon the prospective or actual retirement of the obligor." Further,
subsection (j)(1) creates "a rebuttable presumption that alimony shall terminate
upon the obligor . . . attaining full retirement age," although for good cause and
upon consideration of certain factors, "[t]he rebuttable presumption may be
overcome[.]" N.J.S.A. 2A:34-23(j)(1). Such factors include "[t]he degree and
duration of the economic dependency of the recipient upon the payor during the
marriage" as well as "[t]he health of the parties at the time of the retirement
application," and the "[s]ources of income, both earned and unearned, of the
parties." N.J.S.A. 2A:34-23(j)(1)(c), (f), (i). It is clear from the record before
us that Judge Ferrelli weighed the statutory factors outlined in N.J.S.A. 2A:34 -
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23(j)(1) when he considered plaintiff's request for a modification or terminat ion
of alimony, and we decline to find he abused his discretion in this regard.
Based on our conclusions, we need not address at length Judge Ferrelli's
September 20, 2019 denial of plaintiff's motion for reconsideration under Rule
4:49-2. Briefly, the judge found plaintiff's reconsideration motion failed to
establish that the judge relied on an irrational basis or failed to appreciate the
evidence presented when he issued his June 28, 2019 decision. We agree with
this finding.
A motion for reconsideration is not a chance to get "a second bite of the
apple." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 463 (App.
Div. 2002). Further, "[r]econsideration is a matter within the sound discretion
of the [c]ourt, to be exercised in the interest of justice." D'Atria v. D'Atria, 242
N.J. Super. 393, 401 (Ch. Div. 1990). We will not disturb a trial court's
reconsideration decision absent a showing of a clear abuse of discretion. Hous.
Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994).
Reconsideration is appropriate in two circumstances: (1) when the court's
decision is "based upon a palpably incorrect or irrational basis," or (2) when "it
is obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." Cummings v. Bahr, 295 N.J.
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Super. 374, 384 (App. Div. 1996) (quoting D'Atria, 242 N.J. Super. at 401).
When a litigant is dissatisfied with a court's decision, reconsideration is not
appropriate; rather, the litigant should pursue an appeal. D'Atria, 242 N.J.
Super. at 401. Furthermore, a motion for reconsideration is not "a vehicle to
introduce new evidence in order to cure an inadequacy in the motion record."
Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App.
Div. 2008) (citing Cummings, 295 N.J. Super. at 384).
Here, the record is devoid of evidence demonstrating Judge Ferrelli did
not consider, or failed to appreciate the significance of probative, competent
evidence offered by plaintiff. We also cannot ignore the fact that prior to the
plenary hearing, plaintiff was ordered to supplement his submissions to more
fully address his alimony claims, and he simply violated that order. Despite
plaintiff's recalcitrance, Judge Ferrelli painstakingly sifted through the parties'
proofs and their testimony before issuing his well-reasoned June 28, 2019
opinion. Under these circumstances, we decline to conclude Judge Ferrelli
abused his discretion in denying plaintiff's reconsideration motion.
Similarly, we are not persuaded Judge Ferrelli erred in awarding
defendant counsel fees under his January 24, 2020 order. Pursuant to Rule 5:3-
5(c), a trial court has discretion to award counsel fees in matrimonial actions.
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Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010) (citing Eaton, 368
N.J. Super. at 225). An award of counsel fees will be disturbed "only on the
'rarest occasion,' and then only because of clear abuse of discretion." Strahan v.
Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer,
141 N.J. 292, 317 (1995)).
"Fees in family actions are normally awarded to permit parties with
unequal financial positions to litigate (in good faith) on an equal footing." J.E.V.
v. K.V., 426 N.J. Super. 475, 493 (App. Div. 2012) (quoting Kelly v. Kelly, 262
N.J. Super. 303, 307 (Ch. Div. 1992)). In determining the amount of counsel
fees to award, the court should consider:
(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.
[Rule 5:3-5(c).]
Here, the trial court considered the parties' financial circumstances, as
well as their ability to pay counsel fees. Additionally, the judge observed that
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plaintiff "repeatedly exercised bad faith throughout the entirety of this
litigation." The judge explained:
[i]n September 2018, defendant filed a notice of motion
for enforcement of plaintiff's spousal support
obligation and for other relief. The November 30, 2018
order granted five of defendant's eight requests.
Thereafter, the court issued Case Management Orders
related to discovery required for the parties' plenary
hearing. Plaintiff failed to provide timely and complete
responses to several discovery requests, which resulted
in further telephone conferences with the court as well
as additional scheduling orders.
In March 2019, plaintiff filed a Notice of Motion to
modify or terminate his spousal support obligation
while the plenary hearing was pending. The court
denied plaintiff's motion and reserved the issue. The
court requested supplemental submissions regarding
the issue of spousal support. Defendant provided a
twelve-page letter brief, while plaintiff provided no
supplemental submission to the court.
As we have noted, even if a financial disparity does not exist between
parties, "where a party acts in bad faith the purpose of a counsel fee award is to
protect the innocent party from unnecessary costs and to punish the guilty party."
Welch v. Welch, 401 N.J. Super. 438, 448 (Ch. Div. 2008) (citing Yueh v. Yueh,
329 N.J. Super. 447, 461 (App. Div. 2000)). "[W]here one party acts in bad
faith, the relative economic position of the parties has little relevance." Yueh,
329 N.J. Super. at 461 (quoting Kelly, 262 N.J. Super. at 307).
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Here, we are convinced Judge Ferrelli's findings of plaintiff's bad faith are
well supported by the record. Also, because the judge presided over the parties'
plenary hearing, as well as their various post-judgment applications, he was
familiar with their financial circumstances. Accordingly, there is no basis to
second-guess the judge's counsel fee award.
In sum, plaintiff's arguments concerning the challenged orders reveal
nothing so wide of the mark that we could reasonably conclude a clear mistake
was made by the judge in his rulings. Rather, we are convinced Judge Ferrelli's
factual and credibility findings are well-grounded, and his legal conclusions are
unassailable. Thus, we affirm the challenged orders in all respects.
Affirmed.
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