P.W.B. v. T.R.B. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3818-21
P.W.B.,
Plaintiff-Respondent,
v.
T.R.B.,
Defendant-Appellant.
_______________________
Submitted November 6, 2023 – Decided April 15, 2024
Before Judges DeAlmeida and Berdote Byrne.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FM-08-0325-17.
T.R.B., appellant pro se.
Scher and Isenberg, LLC, attorneys for respondent
(Lynda M. Scher, on the brief).
PER CURIAM
Defendant, T.R.B. ("Tara"),1 appeals from two family court orders. The
first is a March 14, 2022 supplemental order 2 in which the trial court determined
the amount of plaintiff P.W.B. ("Peter's") child support obligation and granted
his request for counsel fees and costs against Tara. The second is a July 14,
2022 order in which the trial court denied Tara's motion for reconsideration of
the March 14, 2022 order, request to modify child support, and Peter's request
for counsel fees in connection to Tara's motion. Having reviewed the
contentions in light of the facts and applicable law, we find no error in the trial
court's orders, and accordingly affirm.
I.
We glean the following facts from the record. The parties were married
on October 15, 2004 and had one child, "Amy," born in August 2010, who
suffers from an undisclosed medical diagnosis for which she has a Section 504
educational plan. On October 3, 2017, a dual final judgment of divorce (DFJD)
was entered which incorporated a marital settlement agreement (MSA). The
MSA consists of four documents: 1) a fourteen-page parenting agreement; 2) the
1
We use fictitious names to protect the identity of the underaged child born of
the marriage.
2
The March 14, 2022 order was a supplemental order to a January 6, 2022
order.
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terms of the MSA; 3) the personal property agreement; and 4) the life insurance
and retirement funds agreement.
Despite this detailed MSA, less than one month later, on November 14,
2017, Tara filed the first in a series of post-judgment motions. Relevant to Amy,
there were motions regarding Amy's therapy, seeking clarification of the
parenting time agreement with respect to pick up times, requiring Peter provide
vacation details, and seeking modification of child support. The results of the
motions were mixed, but the court twice denied Tara's motions for modification
of child support because she failed to demonstrate changed circumstances. The
court also initially denied Tara's request that she be allowed to provide medical
insurance coverage for Amy because she failed to show a substantial change in
circumstances or demonstrate Peter's insurance caused a financial burden
justifying modification of the MSA. The court also denied Tara's request that
Peter provide all statements for an account he purportedly opened for his
girlfriend from the date the account was opened until January 1, 2018. The court
noted Tara had the opportunity to engage in full discovery during the divorce
litigation.
On March 26, 2021, the court entered an order granting Tara's request
permitting her to provide primary medical coverage for Amy. That created a
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substantial change in circumstances requiring recalculation of child support.
During a September 9, 2021 counsel-only conference, a new trial judge ordered
the parties to exchange financial information within three weeks and submit
supplemental child support calculations. During that telephone conference,
counsel for plaintiff requested the court permit a subpoena for year-to-date
records of Tara's sales and commissions from a real estate agency that employs
her part time and issues a 1099 at the end of the year, and a financial application
she had submitted to purchase a new car. Counsel for Tara did not object. The
court allowed the information to be subpoenaed.
Thereafter, on September 23, 2021, without any discussion with the court,
Tara issued five subpoenas requesting Peter's financial information from five
different institutions: American Federal Credit Union (AFCU), TD Bank,
Independence Blue Cross (IBC), AMNJ, a subsidiary of IBC, and a Jeep
dealership. The subpoenas to AFCU and TD Bank requested copies of all of
Peter's bank account statements, cancelled checks, deposits and withdrawals for
accounts in Peter's name or for accounts Peter shared with another person or
entity from January 1, 2017, through the date of the subpoena. The subpoena to
IBC, Peter's employer, requested a copy of Peter's employment contract, all
fringe benefits, retirement benefits, copies of Peter's personal records, W-2
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statements and wage statements, payroll records, schedules, and hourly rate
schedules for all employees, and whether or not Peter had flexibility to work
from home. Tara requested the documents starting from January 1, 2017, to the
date of the subpoena. On September 27, 2021, Peter moved to quash the
subpoenas served upon the AFCU, TD Bank, AMNJ, and IBC. 3
On January 6, 2022, the parties appeared before the trial court on the
motions. The trial court found Tara acted in bad faith with respect to her use of
subpoenas, and stated that sending out the subpoenas was a:
complete dereliction of what the [c]ourt ordered and
what I talked about at the time of the [counsel-only]
conference. [Peter] just wanted to know. [Peter] found
it difficult to believe that you made just one little bit of
money selling real estate in a market that's really hot.
And I said, you know what? I think you have the right
to get that information. . . . But your attorney sent out
subpoenas to everybody dating back . . . to 2017.
That is absolute insanity and it is a perversion and a
complete misrepresentation of what I would allow to
have occurred.
....
[T]he only issue that needed to be determined was a
child support issue, and in lieu of that you sought,
through your attorney, to file a motion to re-litigate
3
Peter did not object to the subpoena sent to the Jeep dealership which requested
information in connection to the purchase of his Jeep in 2020.
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issues that were just decided by [the previous judge]
. . . . I'm not going to take kindly to that, which is why
I ordered counsel fees. That's bad faith. . . .
The trial court also heard argument at that hearing regarding whether the
number of overnights Amy was entitled to spend with Peter, as set forth in the
parenting plan, was the correct number of overnights for calculating the new
child support figure. Tara claimed Amy experienced difficulty sleeping away
from her for the previous two years due to separation anxiety and, therefore,
refused to sleep at Peter's home overnight. Peter asserted Tara was engaged in
parental alienation. Tara asserted Amy's therapist had suggested both parents
force Amy to spend the allotted overnights at Peter's home. Tara noted Peter
"made a choice and his choice was, [Amy] doesn't have overnights anymore if
she doesn't want them." Tara insisted Amy should not be given a choice
regarding whether she wanted to have overnights at Peter's home, stating when
Amy calls to come home Tara has to "rearrange my entire life. . . . Like, do you
understand I'm an adult and I have a curfew? Like, this is ridiculous. I don't
have any time to myself." Tara also claimed because she has more overnights
with Amy than the custody agreement originally stated, she is paying more.
The trial court found Peter was acting in the child's best interest because
of her unique mental health condition and refused to sanction him. Tara stated
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that she was being faulted instead of Peter. In response the trial court stated
"[i]t's all about you; right, ma'am? Is it all about you?"
The court found Tara acted in bad faith and, therefore, ordered her to pay
Peter's counsel fees on the motion to quash, the trial court stated:
the case law that deals specifically with the issue of
attorney's fees, as sending a message if you will, to
prevent vexatious, duplicitous type of litigation. I can't
reward somebody. I can't.
How should I have [Peter] incur all his counsel fees
when [his counsel] was absolutely correct. That filing
of that cross-motion, which really wasn't even a cross-
motion, seeking . . . relief, most of which was addressed
[by the previous judge].
And some of the allegations within the [c]ertification,
which turned out to not be true, misleading at best if not
outright false, and to seek all this information and then
to file something. . . .
....
You need to move on, ma'am, and . . . because I feel it's
necessary. That part of the counsel fee adjustment
would be to say, you need to understand that you cannot
file motions, which are without merit, or to request
information, which is not provided by court rules or
otherwise ordered by the court.
The court entered an order granting Peter's request to quash the four
subpoenas issued by Tara. The court ordered Peter and Tara to exchange
updated, accurate, and completed case information statements, federal tax
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returns, copies of W-2 and 1099 statements, and child support calculations. It
awarded Peter counsel fees and costs for the filing of his motion and stated it
would determine the amount of fees upon receiving the updated financial
information.
On February 21, 2022, Peter submitted a letter to the court enclosing his
child support calculations based on his financial information and the financial
information Tara provided him by email several days earlier, noting he used the
New Jersey Child Support Guidelines (NJCSG) to calculate child support.
On February 23, 2022, Tara submitted a letter to the court enclosing her
child support calculations and alleging Peter underreported his income because
he excluded pre-tax available benefits he had utilized, including contributions
to his 401(k)-retirement account.
On March 14, 2022, the court entered a supplemental order on the issue
of child support accompanied by a memorandum of decision. The court held
Peter's child support obligation was $151 per week effective from the filing of
his motion on September 27, 2021. After a review of the parties' financial
documents and the February 21, 2022 letter from Peter, the court found the letter
accurately reflected the appropriate child support calculation. The court also
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granted Peter's request for counsel fees and costs for having to file the motion
to quash and ordered Tara to pay Peter $6,407.50 in counsel fees.
In reaching its conclusion with respect to counsel fees, the court analyzed
the factors set forth in RPC 1.5 and Rule 5:3-5. The court held Tara engaged in
bad faith. It explained,
[Tara] sent out multiple subpoenas in a post-judgment
motion without leave or permission from the [c]ourt.
The only issue before the [c]ourt was the financial
position of the parties so that the [c]ourt could address
the basic issue of child support to be paid. Instead,
[Tara] sent subpoena's out to various banking
institutions seeking documents dating back to 2017.
The parties were divorced in 2017 and the issue only
involved present income. In addition, [Tara] filed a
cross motion which essentially mimicked that which
was presented to the prior Judge and already
adjudicated. . . . This is a vexatious litigation with the
purpose of abusing the process, abusing the subpoena
power of the [c]ourt and harassing [Peter]. This is now
the second time that [Tara] has been accused of bad
faith by the [c]ourt and has been ordered to pay counsel
fees.
On April 6, 2022, Tara filed a motion for reconsideration of the March 14,
2022 order. Tara argued the court incorrectly calculated the parties' income.
Tara also requested the court apply Peter's child support arrears as a credit to the
attorney's fees that she was ordered to pay. Peter cross-moved again for counsel
fees.
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On May 11, 2022, the trial court heard oral argument on the motion for
reconsideration. Tara argued Amy has not benefitted from Peter's good fortune,
specifically his bonus, since the inception of child support. She noted the MSA
did not include Peter's work bonus but, because his work bonus is part of his
income, it should have been included. Tara also claimed Peter submitted
erroneous calculations with respect to child support contrary to the NJCSG
because the child support should be recalculated to conform to the amount of
overnights actually taking place.
On July 14, 2022, the court entered an order accompanied by a
memorandum of decision finding Tara failed to establish the requisite burden on
her motion for reconsideration, the child support calculation was not incorrect,
and the calculation of child support was accurately based on financial
information provided by the parties and in accordance with the NJCSG. The
court explained, in calculating Tara's income, it used the information she
supplied to the court. The court recognized the deductions in Tara's tax returns
as permissible for IRS purposes, but not admissible for the calculation of child
support. The trial court noted Peter was allowing Amy to spend overnights at
Tara's home temporarily instead of forcing her to come to his home and found
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that decision was in Amy's best interest. It also noted there was an allegation of
parental alienation against Tara.
The court denied Tara's request to credit Peter's child support arrears
toward her court-ordered attorney's fees in the March 14, 2022 order. The court
explained "[c]hild support paid through probation is child support meant for the
benefit of the child [and] [t]he attorneys fee assessed by the [c]ourt is unrelated
to the care of the child." The court denied Peter's request for attorney's fees and
costs related to the reconsideration motion.
This appeal followed.
II.
The findings of fact of family part judges are afforded considerable
deference due to their special expertise in the family part. Cesare v. Cesare, 154
N.J. 394, 413 (1998). A reversal of a trial court finding is appropriate only in
circumstances where the "factual findings and legal conclusions of the trial
judge went 'so wide of the mark that a mistake must have been made.'" Avelino-
Catabran v. Catabran, 445 N.J. Super. 574, 587 (App. Div. 2016) (quoting N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). Family part
judges are afforded greater discretion and "particular leniency" when
interpreting family-related agreements. Quinn v. Quinn, 225 N.J. 34, 45–46
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(2016) (quoting Pacifico v. Pacifico, 190 N.J. 258, 266 (2007)). A trial court's
interpretation of the law is not given special deference and is reviewed de novo.
A.J. v. R.J., 461 N.J. Super. 173, 180 (App. Div. 2019).
Pursuant to Rule 4:49-2 a motion for reconsideration "shall state with
specificity the basis on which it is made, including a statement of the matters or
controlling decision that counsel believes the court has overlooked or as to
which it has erred . . . ." Reconsideration "is not appropriate merely because a
litigant is dissatisfied with a decision of the court or wishes to reargue a motion.
. . ." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). "[A]
motion for reconsideration provides the court, and not the litigant, with an
opportunity to take a second bite at the apple to correct errors inherent in a prior
ruling." Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015); see also N.J.
Practice, Civil Practice Forms § 105:47 (James H. Walzer) (6th ed. 2023) ("[I]n
practice the motion [for reconsideration] requires a showing of law or facts
presented in the motion papers that were overlooked or misapprehended and
would result in a different result.").
In her brief Tara raises a host of issues, makes wide-ranging allegations
of Peter's conduct during and after the marriage, and the conduct of prior trial
judges. However, only the two orders on appeal are before us. See Kopec v.
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Moers, 470 N.J. Super. 133, 153 (App. Div. 2022) (quoting Hayes v. Delamotte,
231 N.J. 373, 387 (2018)) (noting "appeals are taken from orders and judgments"
rather than opinions or reasons provided for the court's conclusions). Tara
asserts she was not orally ordered to pay the full cost of family therapy at the
January 6, 2022 hearing, but was ordered to pay the full cost of family therapy
in the January 6, 2022 order, a ruling she argues is inconsistent with the NJCSG.
Tara posits she earns less than Peter and, at one point, the family was in therapy
with a provider that did not take insurance, causing her to endure a large
financial burden. She argues family therapy should be divided on a "pro rata"
basis.
The record reflects Tara suggested Amy see two licensed family therapists
that were local and in-network, and requested the court order Peter to research
the professionals and select one because Tara did not approve of the previous
therapist. The court ordered Peter to research the two therapists and select one.
Because Tara prevailed in changing medical coverage to coverage she provided,
received a credit for providing medical coverage in the child support calculation,
and selected two therapists that were in network, Tara failed to demonstrate she
had any out-of-pocket therapy fees not covered by her insurance. Therefore, the
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court's order that Tara bear all therapy costs was supported by substantial
credible evidence in the record and will not be disturbed.
The counsel fee award.
Tara claims she was acting on the advice of counsel when she served the
subpoenas and did not act in bad faith. Counsel fee determinations made "by
trial courts will be disturbed only on the rarest of occasions, and then only
because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier,
167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317
(1995)). Abuse of discretion is found when a decision is "made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,
467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
Furthermore, a trial judge need not consider every factor of Rule 5:3-5(c) in
order to determine an award of attorney's fees. Reese v. Weis, 430 N.J. Super.
552, 586 (App. Div. 2013). As long as the "factual findings [are] adequately
justif[ied]" the trial judge need not analyze every factor. Ibid.N.J.S.A. 2A:34-23 provides that a court, when awarding attorney's fees to a
party, is required to consider the factors set forth in Rule 5:3-5(c), the financial
circumstances of the parties, and the good or bad faith of either party.
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In a nutshell, in awarding counsel fees, the court must
consider whether the party requesting the fees is in
financial need; whether the party against whom the fees
are sought has the ability to pay; the good or bad faith of
either party in pursuing or defending the action; the nature
and extent of the services rendered; and the reasonableness
of the fees.
Mani v. Mani, 183 N.J. 70, 94-95 (2005) (emphasis omitted).
"Examples of bad faith include misusing or abusing process, seeking relief
not supported by fact or law, intentionally misrepresenting facts or law, or otherwise
engaging in vexatious acts for oppressive reasons." Slutsky v. Slutsky, 451 N.J.
Super. 332, 367 (App. Div. 2017). The economic position of the parties will be
largely irrelevant where one party acts in bad faith "because the purpose of the
award is 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) (quoting
Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)).
The trial court's finding Tara acted in bad faith is supported by the record.
The court included the analysis of each factor for both RPC 1.5 and Rule 5:3-5(c) in
its March 14, 2022 opinion. It correctly found Tara was attempting to re-litigate the
divorce proceedings and attempting to obtain documents she was not entitled to that
were not relevant to the calculation of child support.
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The Child Support Calculation.
Tara argues the trial court erred by failing to deduct Peter's 401(k)
distributions from his gross income and failing to do so was a deviation from
the NJCSG. Tara's argument stems from Peter's Case Information Statement,
where he reported he contributed $12,000 to his 401(k) for the year 2021 and
listed that amount as part of the deductions with respect to his net year-to-date
income. However, the court did not calculate child support based upon Peter's
CIS or his net income. The court calculated child support based upon Peter's
gross income, inclusive of the $12,000 he contributed to a 401(k). Peter's letter
to the court and proposed child support guidelines both use Peter's gross wages,
including any bonuses, and there is no deduction in the support guidelines for
any retirement contributions for Peter, only Tara.
Affirmed.
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