Cheryl Fiore v. Raymond Fiore ( 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NOT FOR PUBLICATION WITHOUT THE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-2539-21
CHERYL FIORE,
Plaintiff-Respondent,
v.
RAYMOND FIORE,
Defendant-Appellant.
________________________
Submitted March 20, 2024 – Decided April 16, 2024
Before Judges Firko and Vanek.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-1225-17.
August J. Landi, Jr., attorney for appellant.
Cheryl Fiore, respondent pro se.
PER CURIAM
In this post-judgment matrimonial matter, defendant Raymond Fiore
appeals from the February 14, March 3, and March 16, 2022 Family Part orders
granting plaintiff Cheryl Fiore's motion to recalculate child support following
termination of her term alimony and awarding her counsel fees in the amount of
$2,380. The judge denied defendant's cross-motion to mediate the parties' issues
based on his interpretation of the marital settlement agreement (MSA)
incorporated into the judgment of divorce (JOD), request for increased parenting
time, for the appointment of an employability expert to evaluate plaintiff, and
for counsel fees.
Following our review of the record and applicable legal principles, we
affirm the decisions modifying the child support obligation and denying the
relief sought by defendant in his cross-motion. However, we reverse and remand
the award of counsel fees because the judge did not address the factors required
by Rules 5:3-5(c), 4:42-9, and RPC 1.5(a).
I.
We derive the following facts and procedural history from the record. The
parties divorced in 2018 after a nine-year marriage. Three children were born
of the marriage: E.F.,1 born in January 2012, M.F., born in November 2013, and
C.F., born in August 2015. Plaintiff did not work outside the home during the
marriage. The MSA provided that the parties shall share joint legal custody of
1
We use initials to protect the confidentiality of the minor children.
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2
the children, with plaintiff being designated as the parent of primary residence
and defendant being designated as the parent of alternate residence. A consent
order for custody and parenting time following Rule 1:40-5(a) mediation was
incorporated into the JOD. Defendant has overnight parenting time on
alternating weekends from Friday evenings until Sunday evenings and has
parenting time every Tuesday and Thursday for dinner visits.
Pursuant to paragraph 5.1 of the MSA, defendant agreed to pay term
alimony to plaintiff in the amount of $501 per week for forty consecutive
months. The alimony amount was based on defendant's average annual gross
income of $109,000 and an imputation of income to plaintiff in the amount of
$20,000. The child support was calculated using the New Jersey Child Support
Guidelines-Sole Parenting Worksheet (Guidelines or Worksheet). Defendant's
net child support obligation was calculated at $255 per week. However, the
parties agreed to deviate from the Guidelines and defendant agreed to pay an
additional $35 per week for a total child support obligation of $290 per week.
On July 15, 2021, plaintiff's term alimony ended. Paragraph 5.6 provided
that "[u]pon termination of alimony, [the] parties shall exchange income tax
returns and every three years, thereafter." Plaintiff tried to obtain information
directly from defendant regarding his current income in order to recalculate
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3
child support because her alimony had ended. Defendant supplied plaintiff with
his 2020 federal income tax return but did not provide his current pay stubs or
any other financial information relative to his income. Because defendant was
not forthcoming with his financial information, plaintiff retained counsel.
Plaintiff did not agree to mediate the child support issue.
On September 13, 2021, plaintiff filed a notice of motion to recalculate
child support retroactive to the date her alimony terminated and for an award of
counsel fees. Defendant opposed the motion and filed a notice of cross-motion
to compel mediation, for increased parenting time, and to order an employability
evaluation of plaintiff.
In her moving certification, plaintiff stated that "during the negotiation
phase" of the divorce matter, "there was a dispute as to . . . [d]efendant's actual
income." She certified that the parties agreed, "for alimony purposes," to base
alimony on defendant's average annual income during the marriage "in the gross
amount of $109,000 per year." Plaintiff stated that "she was imputed income of
$20,000 per year, a level of income that [she] never achieved during [the]
marriage, nor in the three . . . years thereafter."
Plaintiff certified that she tried to communicate via email with defendant
to obtain information in order to recalculate child support before re -retaining
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her attorney, "to no avail." After plaintiff's counsel became involved, plaintiff
certified that if defendant had cooperated in producing his financial information,
child support could have been recalculated by her attorney, memorialized in a
consent order, and judicial intervention and expense could have been avoided.
However, plaintiff certified that defendant did not turn over his 2020 income tax
returns and three most recent paystubs. Ultimately, plaintiff stated that
defendant provided his 2020 federal income tax return directly to her but not his
paystubs. Prior to their divorce, plaintiff certified that defendant earned almost
$170,000 per year as evidenced on the parties' joint tax return annexed t o her
original case information statement (CIS).
Plaintiff also certified that she works as a realtor and completed her
studies at Brookdale College in August 2021 to become an ultrasound
technician, but had not yet taken the necessary board exam. Plaintiff stated she
and the three children "are temporarily residing with [her] parents," for
economic reasons.
In opposition to plaintiff's motion and in support of his cross-motion,
defendant submitted a certification. He certified that paragraph 10.8 of the MSA
"specifically requires any dispute post-judgment to be brought to [m]ediation
with Lisa E. Halpern, Esq., prior to any [c]ourt application being filed ."
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Therefore, the case was "not ripe" for judicial determination. Defendant
certified that he disagreed with plaintiff's interpretation of paragraph 10.8 to be
specifically limited to "only issues of equitable distribution post-judgment"
because "all issues of equitable distribution were resolved at the time the divorce
was entered" as reflected in the MSA, JOD, and consent order for custody and
parenting time. Defendant stated he provided his 2020 tax return, which is all
he was required to produce under paragraph 5.6 of the MSA, and he was not
required to provide his last three paystubs. Defendant certified that plaintiff
"incorrectly views the alimony termination event as an automatic child support
increase event," but that is not stated anywhere in the MSA.
Defendant certified that the reason for the "mutual exchange and review"
of the parties' respective 2020 tax returns after the termination of alimony "is
for purposes of reviewing our respective incomes and changes, if any, as to
employment" and then "the discussion, if appropriate, can begin as to a
recalculation of child support." According to defendant, plaintiff was
"misleading" the court that "a recalculation of child support, and the expectation
of an increase, is automatic upon the final alimony payment." Defendant stated
he "voluntarily deviated from the [Guidelines]" and paid plaintiff an additional
$35 per week over the past three years. Defendant stated plaintiff "resides rent
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free with her parents," holds "two college degrees," one in "English literature"
and the other pertained to a "nursing program as a requirement to enter the
program for her [u]ltrasound [t]echnician ([s]onographer) degree."
Defendant added that plaintiff is "a licensed real estate agent," and the real
estate market has been "extraordinarily hot." Defendant certified that plaintiff
has "ample time" to "sell houses, complete her [u]ltrasound board exams, or
work anywhere she wishes," because when the children are not in school, they
are home with plaintiff and her parents or with him during his parenting time.
Defendant informed the court that his mother agreed to babysit the children to
give plaintiff more time to work, but plaintiff did not accept the offer.
Defendant's mother submitted a certification attesting to this.
Defendant certified that plaintiff "feigns her inability to earn income,"
"has no steady source of income," and does not have a "part-time job."
Defendant stated that plaintiff could be earning "in the range of $66,000 to
upwards of $79,000 per year" as a sonographer based upon New Jersey
Department of Labor (NJDOL) and Workforce Development Occupational
Wages statistics.
Defendant certified the child support issue should have been mediated
before Halpern. He attached an updated CIS, which included his 2020 income
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tax return and three last pay stubs. Defendant represented that he is moving
from a rental to a four-bedroom single family home he is purchasing, which will
result in higher Schedule A expenses.
In his cross-motion, defendant sought to increase his parenting time from
Thursday evening through Monday evening on the alternating weekends when
he has the children, which equates to "an additional [four] overnights per month
based on changed circumstances," notably his new home, where each child will
"have their own bedroom[]," and "a yard to play in." Defendant certified his
new home is near the children's school, where he coaches their baseball and
basketball teams. Defendant stated plaintiff is unreasonable and refuses to give
him more parenting time with the children.
Defendant also certified that plaintiff should be ordered to undergo an
employability evaluation "to determine her true earning potential" and "salary
range" commensurate with her educational and work experience. He also
requested counsel fees for having to defend plaintiff's "unmeritorious and
premature application."
Plaintiff submitted a reply certification explaining under the terms of the
MSA, a return to mediation was only "related to issues dealing with equitable
distribution" because this provision was "specifically included" in section 10 of
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the MSA, which dealt with the distribution of assets and defendant's "retirement
accounts." Plaintiff certified that defendant contended "he only had one
account," and the parties "had a dispute over certain items of personal property"
as stated in the MSA. Plaintiff posited that the MSA does not require the issue
of child support to be mediated. She certified that defendant is "manipulating"
his income, and historically, he earned "an excessive amount of overtime."
Plaintiff stated she took the sonogram boards but did not pass.
On December 13, 2021, the judge conducted oral argument on the motions
and reserved decision. On February 14, 2022, the judge entered an order
accompanied by a written decision. The judge granted plaintiff's motion to
recalculate child support retroactive to the date her motion was filed on the basis
of the following changed circumstances: (1) "all of the children attending
elementary school full-time"; (2) "[p]laintiff furthering her education to become
an [u]ltrasound [t]echnician"; and (3) "termination of the term alimony."
The judge imputed income to plaintiff based on part-time, twenty-hour per
week employment at $38.00 per hour, "the 50th percentile for an ultrasound
technician," totaling $39,250, plus imputed real estate business income of
$3,501, as reflected on plaintiff's 2020 tax return. The judge ruled plaintiff
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would be imputed income of $43,021. 2 As to defendant's income, the judge
utilized $134,508, representing his year-to-date income extrapolated to
December 31, 2021. Regarding the imputation of part-time income for plaintiff,
the judge reasoned:
While the parties' children are now all attending school
full-time, the court notes that the children are still
relatively young, with the oldest being ten years of age.
Therefore, the court deems it reasonable that plaintiff
not yet secure full-time employment that would detract
from her duties of caring for the children both before
and after school.
The judge agreed with defendant that termination of alimony "is not an
automatic child support increase event" under the MSA but found "under these
circumstances, . . . it is appropriate to revisit, modify[,] and recalculate child
support" given the change of circumstances under the Lepis3 standard. The
judge noted that plaintiff could work "part-time without incurring any daycare
or child care expenses" even if the parties' parents were unavailable to provide
child care. The judge emphasized "[p]laintiff's failure to take the [ultrasound
technician] exam should not inure to [her] benefit when calculating child
2
$39,250 plus $3,501 equals $42,751, not $43,021, a difference of $270. This
miscalculation is not germane to our decision.
3
Lepis v. Lepis, 83 N.J. 139, 157 (1980).
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support." The judge directed plaintiff's counsel to provide a Worksheet utilizing
the income figures ordered by the judge and a supplemental order would issue
as to the recalculated child support amount.
The judge determined that plaintiff was entitled to an award of counsel
fees in the sum of $2,380, based on defendant's "significantly greater ability to
pay [his] own fees and plaintiff's fees" upon reviewing the Rule 5:3-5 factors,
without specifying them. The judge found defendant did not act in bad faith and
that neither party breached the MSA, rendering paragraph 15.1 of the MSA—
"Counsel Fees In The Event Of Breach"—inapplicable.
Addressing defendant's cross-motion, the judge rejected his argument
plaintiff's motion was premature and that she breached the MSA by failing to
mediate the child support issue. The judge held defendant's "interpretation
ignores the prefatory language to the paragraphs in Article 10: 'The parties have
agreed as follows with respect to the equitable distribution of their remaining
marital assets.'" In addition, the judge highlighted that the mediation section is
not listed under "Article 2 General Representations," or under the child support
section, and found "[t]here is no paragraph or article in the MSA that states . . .
headings and titles are for convenience only and are not for substantive or
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interpretive effect or meaning." Therefore, the judge concluded that the
mediation requirement "applies only to equitable distribution issues."
Regarding defendant's request for increased parenting time, the judge
denied the relief requested without prejudice because defendant did not establish
a prima facie case of changed circumstances to warrant modification of the
custody and parenting time arrangement. The judge acknowledged the children
are three years older than they were when the MSA was entered but standing
alone, that did not constitute a substantial change of circumstances. In addition,
the judge emphasized that defendant's parenting time schedule was not
predicated upon defendant "not having his own home" or that parenting time
"would be revisited or increased" when he secured his own home.
The judge denied defendant's request to require plaintiff to undergo an
employability evaluation reiterating it was "reasonable" for plaintiff not to be
employed full-time in light of the "relatively young" age of the children and the
judge's imputation of income to plaintiff. The judge also denied defendant's
request for counsel fees.
On March 23, 2022, the judge issued a supplemental order: (1) requiring
defendant to provide plaintiff with proof of the children's share of the health
insurance premium paid by defendant; (2) directing plaintiff's counsel to provide
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an updated Worksheet to include the health insurance premium cost information;
(3) ordering child support arrears to be paid in the amount of $150 per week;
and (4) ordering the counsel fees awarded to be paid within fifteen days.
On March 16, 2022, the judge entered a second supplemental order as
follows: (1) recalculating defendant's child support obligation at $400 per week
retroactive to the date plaintiff filed her motion; (2) continuing child support
arrears to be paid at the rate of $150 per week; and (3) ordering the counsel fee
award to be paid by the close of business on March 18, 2022. This appeal
followed.
On appeal, defendant primarily argues the judge erred by imputing only
part-time income to plaintiff and denying his request for increased parenting
time because defendant's purchase of a four-bedroom home in the children's
school district constituted a substantial change of circumstances. Defendant
requests that we exercise original jurisdiction pursuant to Rule 2:10-5, "to bring
repose to this litigation." He also argues the judge erred by failing to provide a
"lodestar" analysis in granting plaintiff counsel fees.
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II.
A.
Our review of a Family Part judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). "Because of the family courts' special
jurisdiction and expertise in family matters, [we] should accord deference to
family court factfinding." Id. at 413. Thus, we will not "engage in an
independent assessment of the evidence as if [we] were the court of first
instance." N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 433
(App. Div. 2002) (alteration in original) (quoting State v. Locurto, 157 N.J. 463,
471 (1999)).
We will "not disturb the 'factual findings and legal conclusions of the trial
judge unless [we are] convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice.'" Cesare, 154 N.J. at 412 (quoting Rova Farms
Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). With regard to
questions of law, a trial judge's findings "are not entitled to that same degree of
deference if they are based upon a misunderstanding of the applicable legal
principles." Z.P.R., 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
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"Consequently, when [we] conclude[] there is satisfactory evidentiary
support for the trial court's findings, '[our] task is complete and [we] should not
disturb the result . . . .'" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div.
2015) (fifth alteration in original) (quoting Beck v. Beck, 86 N.J. 480, 496
(1981)). "Deference is appropriately accorded to factfinding; however, the trial
judge's legal conclusions, and the application of those conclusions to the facts,
are subject to our plenary review." Ibid. (quoting Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013)).
"When reviewing decisions granting or denying applications to modify
child support, we examine whether, given the facts, the trial judge abused his or
her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v.
Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). "The trial court's 'award
will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly
contrary to reason or to other evidence, or the result of whim or caprice.'" Ibid.(quoting Jacoby, 427 N.J. Super. at 116). We may thus reverse a trial court's
decision when it "is 'made without a rational explanation, inexplicably depart[s]
from established policies, or rest[s] on an impermissible basis.'" Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v.
Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
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New Jersey courts have long recognized that "[t]he duty of parents to
provide for the maintenance of their children is a principle of natural law."
Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004) (quoting Greenspan
v. Slate, 12 N.J. 426, 430 (1953)). Thus, children "have the right to support
from their parents[,]" Connell v. Connell, 313 N.J. Super. 426, 430 (App. Div.
1998), and parents are "obliged to contribute to the basic support needs of an
unemancipated child to the extent of the parent's financial ability," Burns, 367
N.J. Super. at 39 (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App.
Div. 1993)).
In establishing or modifying a child support award, courts must rely on
articulated guidelines. R. 5:6A. The guidelines "attempt to simulate the
percentage of parental net income that is spent on children in intact families" to
award support in an appropriate amount. Caplan v. Caplan, 182 N.J. 250, 264
(2005).
A trial judge has the discretion to impute income, but only after first
finding that a party "is voluntarily unemployed or underemployed." Golian v.
Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (citing Dorfman v. Dorfman,
315 N.J. Super. 511, 516 (App. Div. 1998)); Caplan, 182 N.J. at 268. Here, the
judge determined plaintiff voluntarily chose to stay home and care for her
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children, and it was appropriate to impute income to her. Plaintiff does not
dispute this.
"Imputation of income is a discretionary matter not capable of precise or
exact determination but rather requiring a trial judge to realistically appraise
capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464,
474 (App. Div. 2004). On appeal, a trial judge's imputation of a specific amount
of income "will not be overturned unless the underlying findings are inconsistent
with or unsupported by competent evidence." Id. at 474-75 (citations omitted).
There are no bright-line rules that govern the imputation of income. See id. at
474; see also Caplan, 182 N.J. at 270 (reviewing the factors the trial court should
consider when "determin[ing] the reasonable amount of income to be imputed
to that party.").
As previously stated, the MSA imputed plaintiff with $20,000 income but
did not specify the basis for the imputation or an occupation. Plaintiff contends
she never went to school for nursing, only for training as an ultrasound
technician, and she never passed the mandatory exam required to obtain a job in
that field. At the time plaintiff filed her motion, she was working as a realtor
and had just completed her studies at Brookdale College. Defendant does not
dispute the imputation of $38 per hour to plaintiff as an ultrasound technician,
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but he challenges the judge's decision to impute part-time employment (twenty
hours per week) rather than full-time employment (forty hours per week).
Defendant maintains the judge, without a good cause basis or support in
the record, reformed the MSA by imputing part-time income to plaintiff because
full-time employment was imputed to her in the MSA. Defendant also avers
that the judge failed to consider that plaintiff's parents are available to care for
the children while she works because they reside together and her parents are
retired. In addition, his mother certified she offered to care for the children and
assist with their "educational needs."
Appendix IX-A, paragraph twelve, of the Guidelines sets forth the
considerations to be analyzed when imputing income to parents. In relevant
part,
The fairness of a child support award resulting from the
application of these Guidelines is dependent on the
accurate determination of a parent's net income. If the
court finds that either parent is, without just cause,
voluntarily underemployed or unemployed, it shall
impute income to that parent according to the following
priorities:
a. impute income based on potential employment
and earning capacity using the parent's work
history, occupational qualifications, educational
background, and prevailing job opportunities in
the region. The court may impute income based
on the parent's former income at that person's
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usual or former occupation or the average
earnings for that occupation as reported by the
[NJDOL];
b. if potential earnings cannot be determined,
impute income based on the parent's most recent
wage or benefit record (a minimum of two
calendar quarters) on file with the NJDOL (note:
NJDOL records include wage and benefit income
only and, thus, may differ from the parent's actual
income); or
c. if a NJDOL wage or benefit record is not
available, impute income based on the fulltime
employment ([forty] hours) at the prevailing New
Jersey minimum wage.
In determining whether income should be imputed to a parent and the
amount of such income, the court should consider: (1) what the employment
status and earning capacity of that parent would have been if the family had
remained intact or would have formed; (2) the reason and intent for the voluntary
underemployment or unemployment; (3) the availability of other assets that may
be used to pay support; and (4) the ages of any children in the parent's household
and child-care alternatives. The determination of imputed income shall not be
based on the gender or custodial position of the parent. See N.J.S.A. 2A:34-
23(a).
In her decision, the judge properly considered plaintiff's inability to
depend on alternatives for childcare, explaining:
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Because the minor children are currently attending school,
[p]laintiff could work part-time without incurring any
daycare or childcare expenses, even if neither parties'
parents were available to provide child care/daycare at no
cost to the parties.
Also, considering imputing income to plaintiff for part-time employment,
the judge highlighted:
The [c]ourt does not find that an
employability/occupational evaluation is warranted at this
juncture. While the parties' children are now all attending
school full-time, the court notes that the children are still
relatively young, with the oldest being ten years of age.
Therefore, the court deems it reasonable that plaintiff not
yet secure full-time employment that would detract from
her duties of caring for the children both before and after
school.
As we underscored in Storey, there are no bright-line rules that govern the
imputation of income. Id. at 474; see Caplan, 182 N.J. at 270. Moreover,
Appendix IX-A provides the basis for imputation of income in accordance with
the party's usual or former occupation. Caplan, 182 N.J. at 265. Here, the record
supports the judge's determination that plaintiff is the primary caretaker of the
parties' three young children, the oldest being ten.
In addition, plaintiff's completion of her college degree as an ultrasound
technician—for which she has taken the Board exam albeit unsuccessfully—
serves as a rational basis to impute income to plaintiff as an ultrasound
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technician.4 The judge also included an imputed amount of income based on
potential real estate sales using the previous year's earnings. The judge's
decision was based upon substantial credible evidence in the record, and we
discern no abuse of discretion.
B.
A party seeking modification of an existing custody or parenting time
order must demonstrate changed circumstances and that the current arrangement
under the existing order is no longer in the child's best interests. Hand v. Hand,
391 N.J. Super. 102, 105 (App. Div. 2007); Finamore v. Aronson, 382 N.J.
Super. 514, 522-23 (App. Div. 2006). To satisfy this burden, the moving party
must first show "a change of circumstances warranting modification" of the
extant custody and parenting time order. Costa v. Costa, 440 N.J. Super. 1, 4
(App. Div. 2015) (quoting R.K. v. F.K., 437 N.J. Super. 58, 63 (App. Div.
2014)).
Defendant argues the judge erred by denying his motion for additional
parenting time based solely on a finding he failed to demonstrate a change in
circumstances warranting a modification of parenting time and custody. He
4
In her appellate letter brief opposing defendant's appeal, plaintiff states she
has been working full-time now for over a year and her gross annual salary is
$46,800. Plaintiff did not specify what type of work she does.
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contends we should reverse the judge's order and exercise original jurisdiction
because his purchase of a four-bedroom home in the children's school district
within five miles of where they live and next to his mother who can assist him
constitutes a substantial change of circumstances warranting an increase in his
parenting time.
Plaintiff counters that defendant is acting in bad faith, requesting to
expand his parenting time only now that his child support obligation is
increasing. Plaintiff asserts her new job allows her to work from home three
days per week with flexibility to stay home if the children are sick. Plaintiff
claims defendant's work schedule has not changed since the JOD was entered
and that he starts work at 7:00 a.m. in Linden, a forty-five-minute drive from his
current residence.
Plaintiff argues defendant would not be home in the morning to get the
children ready for school or get them to school, and he would not be home for
them at the end of the school day. She further asserts that defendant consistently
has to work overtime and during a "shut down," including overnights as needed .
A determination of whether a party moving for modification of a custody
or parenting time order has demonstrated a sufficient change in circumstances
warranting a plenary hearing necessarily requires that the court consider the
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circumstances extant when the custody and parenting time orders for which
modification is sought were entered. See, e.g., Beck v. Beck, 239 N.J. Super.
183, 190 (App. Div. 1990) (explaining assessments of changed circumstances
concerning child support involve consideration of the parties' current situations
compared "with the circumstances which formed the basis for the last order
fixing support obligations"); Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28
(App. Div. 2009) (holding changed circumstances are evaluated based on those
existing at the time the prior order was entered).
Applying these principles to the matter before us, we discern no basis in
the record to support a reversal of the judge's determination defendant failed to
show the requisite substantial change of circumstances requiring a modification
of the parenting time order incorporated into the JOD.
Here, the judge noted "[a]lthough the children are three years older" than
they were at the time the MSA was entered by the parties, that does not constitute
a sufficient change of circumstances. The judge also held that defendant's
parenting time was not "predicated" in the MSA on "having his own home or
that parenting time would be revisited." The judge was correct in her analysis.
In our review, the judge properly identified the appropriate custody and
parenting time order incorporated into the MSA and JOD as the benchmark for
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determining whether defendant satisfied his burden of demonstrating a
substantial change of circumstances.
III.
Finally, defendant argues the judge erred in awarding counsel fees to
plaintiff. He asserts the judge did not specifically address Rules 5:3-5(c), 4:42-
9, and RPC 1.5(a). The judge acknowledged that defendant "has a significantly
greater ability to pay [his] own fees and [p]laintiff's fees than does [p]laintiff to
pay her own fees," and the financial circumstances of the parties weighs in favor
of defendant paying plaintiff's counsel fees. The judge also found defendant did
not act in bad faith and that neither party breached the MSA, thus rendering
paragraph 15.1 inapplicable. In her decision, the judge explained she reviewed
the certification of plaintiff's counsel and awarded $2,380, "which the court
finds is reasonable and appropriate for the legal services rendered on behalf of
[p]laintiff in connection with this matter." (Emphasis omitted).
Counsel fee determinations, "rest[] within the sound discretion of the trial
judge." Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008) (quoting
Loro v. Colliano, 354 N.J. Super. 212, 227 (App. Div. 2002)). "We will disturb
a trial court's determination on counsel fees only on the 'rarest occasion,' and
then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J.
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Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292,
317 (1995)).
Generally, "the party requesting the fee award must be in financial need
and the party paying the fees must have the financial ability to pay, and if those
two factors have been established, the party requesting the fees must have acted
in good faith in the litigation." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App.
Div. 2012) (citing Guglielmo v. Guglielmo, 253 N.J. Super. 531, 545 (App. Div.
1992)). When both parties have a "sufficient ability to satisfy [their] attorney's
fee obligation, and neither . . . proceeded in bad faith," the court may justifiably
deny the award of counsel fees. Reese, 430 N.J. Super. at 586. The court also
considers the following factors:
(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;
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(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).]
A trial court's failure to consider the appropriate factors, make the
required findings, and state its conclusions of law, constitutes a clear abuse of
discretion. See Saffos v. Avaya, Inc., 419 N.J. Super. 244, 271 (App. Div.
2011). Ordinarily, the purpose of a counsel fee award in a matrimonial action
is to equalize the relative financial resources of the parties. J.E.V., 426 N.J.
Super. at 493 (citing Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)).
"Simple omnibus references to the rules without sufficient findings to
justify a counsel fee award makes meaningful review of such an award
impossible . . . ." Loro, 354 N.J. Super. at 228. If the court performs its
obligation under the statute and rules, and "there is satisfactory evidentiary
support for the trial court's findings, 'its task is complete and [a reviewing court]
should not disturb the result, even though it . . . might have reached a different
conclusion were it the trial tribunal.'" Reese, 430 N.J. Super. at 568 (quoting
Beck, 86 N.J. at 496). Conversely, a remand is appropriate if the trial court fails
to adequately explain an award or denial of counsel fees. See Giarusso v.
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Giarusso, 455 N.J. Super. 42, 54 (App. Div. 2018) (citing Loro, 354 N.J. Super.
at 227-28).
Here, the judge awarded counsel fees without considering all relevant
factors. In her February 14, 2022 order, the judge simply stated she reviewed
the certification of plaintiff's counsel; noted the discrepancies in the parties'
incomes; found defendant did not act in bad faith; and concluded that neither
party breached the MSA. The judge did not make detailed findings under the
Rules 5:3-5(c), 4:42-9, and RPC 1.5(a). Thus, we are constrained to reverse the
portion of the order awarding counsel fees and remand for the judge to consider
the requisite factors and conduct the appropriate analysis. We have no opinion
on the outcome of the counsel fee decision.
We conclude the remaining arguments—to the extent we have not
addressed them—lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed and remanded in part for proceedings consistent
with this opinion. We do not retain jurisdiction.
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