CAMILE COLARUSSO VS. DAVID COLARUSSO (FM-02-0308-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4073-17T4
CAMILE COLARUSSO,
Plaintiff-Respondent,
v.
DAVID COLARUSSO,
Defendant-Appellant.
Submitted May 28, 2019 – Decided June 12, 2019
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0308-15.
Pless & Habeeb, LLP, attorneys for appellant (Randal
W. Habeeb, on the briefs).
Callagy Law, PC, attorneys for respondent (Brian P.
McCann, on the brief).
PER CURIAM
In this post-judgment dissolution matter, defendant David Colarusso
appeals from a Family Part order, denying his motion for reconsideration and
enforcing an award of counsel fees, professional fees, and pendente lite expenses
to plaintiff Camile Colarusso. We affirm.
I.
We commence our review with a brief discussion of well-settled legal
principles to give context to the trial judge's decision.
We review a trial court's denial of reconsideration only for abuse of
discretion. Granata v. Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016);
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Reconsideration
is "a matter within the sound discretion of the [c]ourt, to be exercised in the
interest of justice." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div.
2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Governed by Rule 4:49-2, reconsideration is appropriate for a "narrow
corridor" of cases in which either the court's decision was made upon a "palpably
incorrect or irrational basis," or where "it is obvious that the [c]ourt either did
not consider, or failed to appreciate the significance of probative, competent
evidence." Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002)
(quoting D'Atria, 242 N.J. Super. at 401). In determining whether such an abuse
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has taken place, a reviewing court should be mindful that a party must not utilize
reconsideration merely because of "dissatisfaction with a decision of the
[c]ourt." Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310
(App. Div. 2008) (alteration in original) (quoting D'Atria, 242 N.J. Super. at
401).
II.
We incorporate by reference the facts, which are set forth at length in our
prior opinion and need not be repeated here. Colarusso v. Colarusso, A-3324-
16 (App. Div. Oct. 1, 2018) (slip op. at 2-6).1 Instead, we recite the pertinent
procedural history that forms the focal point of this appeal.
In July 2014, plaintiff filed a complaint for divorce. Id. at 2. On July 14,
2015, the parties executed a consent order, which obligated defendant to pay
approximately $5000 in pendente lite support. Id. at 2-3. During the twelve-
day trial, both parties were self-represented and they were the only witnesses to
testify. Id. at 6.
On March 2, 2017, Judge Lisa A. Firko issued a final dual judgment of
divorce (FJOD), accompanied by a comprehensive twenty-three page written
1
Our decision was rendered after the parties filed their briefs in this appeal.
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opinion. Relevant here, the judge ordered defendant to pay plaintiff $500 per
week as open durational alimony. Id. at 9. The judge also denied defendant's
request to retroactively reduce his pendente lite support obligations.
Post-judgment litigation proved to be as contentious as pretrial litigation.
Defendant ceased all pendente lite support as of March 2, 2017. Plaintiff filed
an emergent application seeking clarification of the date by which pendente lite
support would terminate. On April 7, 2017, Judge Firko issued an order
"provid[ing] that [d]efendant . . . maintain his pendente lite obligations as set
forth in the July 14, 2015 [c]onsent [o]rder through March 31, 2017." The judge
further ordered defendant to settle all past due pendente lite obligations, and
awarded plaintiff $1500 in counsel fees.
On April 17, 2017, defendant remitted to plaintiff's counsel a check for
$1139.63. In his accompanying correspondence, defendant stated, "This check
represents all outstanding bills defendant was responsible for." Defendant
itemized the expenses included in his payment as follows: $928.01 for health
insurance; $149.12 for an Optimum bill and $62.50 for a Verizon bill.
Certifying that she believed defendant's check was a partial pendente lite
payment, plaintiff cashed the check "because [d]efendant was so far behind in
alimony payments."
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On May 3, 2017, plaintiff filed a pro se motion seeking various relief,
including reimbursement for all pendente lite expenses incurred through March
31, 2017, i.e., "health insurance, unreimbursed medical expenses, and carrying
costs of the former marital home." Defendant opposed the motion pro se. By
order entered July 7, 2017, Judge Firko denied, as moot, plaintiff's
reimbursement requests. In a written statement of reasons, accompanying the
order, the judge explained her decision (emphasis added):
Plaintiff, through her [a]ppellate counsel, Brian
McCann, Esq., filed a [p]ost-[j]udgment [m]otion
which resulted in this [c]ourt entering a[] [clarifying
o]rder on April 7, 2017, which provided as follows:
2. Defendant shall be responsible for all
past due and outstanding [p]endente [l]ite
obligations through March 31, 2017 and as
set forth in the July 14, 2015 [c]onsent
[o]rder, inclusive of the $450.00 per month
in unallocated support to [p]laintff. To the
extent that [p]laintiff has had to pay any
such expenses, [d]efendant shall reimburse
her the full amount within [three] days of
being presented with an invoice and proof
of payment for same. Credits to be
discussed between counsel for [p]laintiff
and the parties.
Plaintiff did not articulate why she seeks
reimbursement for these items. She simply attached
various invoices, and documentation of automatic
withdrawals, some of which are dated after March 31,
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2017. Furthermore, the alleged "proof" of her
payments does not match the invoices submitted.
Defendant opposes said relief, and argues that
Mr. McCann never contacted him to discuss potential
credits and offsets due to [d]efendant, as directed by
this [c]ourt. Defendant also argues that on Apri1 17,
2017, he wrote a letter to Mr. McCann and provided an
explanation as to outstanding fees. He also enclosed a
check, which was cashed by [p]laintiff. The [c]ourt
finds that the cashing of the check by [p]laintiff
constituted an accord and satisfaction of any
outstanding dispute between the parties relative to the
relief requested. Therefore, [p]laintiff's [m]otion in this
regard is denied. Defendant correctly points out that as
per the [FJOD], it is clearly stated that [p]laintiff is to
assume financial responsibility of all household bills as
of April 1, 2017.
Thereafter plaintiff, through counsel, sought enforcement of the July 14,
2015 consent order and April 7, 2017 clarifying order, and counsel fees. To
support her application, plaintiff annexed to her certification a spreadsheet of
the "complete, detailed and specific reconciliation of the monies" owed by
defendant, prepared by plaintiff's expert, Carleen J. Gaskin, CPA/CFF.
Immediately following oral argument on January 26, 2018, Judge Firko
rendered an oral decision, granting each of plaintiff's requests for pendente lite
support, based on Gaskin's "very detailed forensic analysis of the expenses." In
particular, the judge noted Gaskin thoroughly addressed each itemized pendente
lite expense at issue by "connecting the reimbursements owed to the [attached]
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statements, which is exactly the way it [i]s supposed to be done." Accordingly,
the judge had "no question in [her] mind about any[ of the expenses]." That
level of "explicit detail" obviated the necessity for a plenary hearing. Relying
on Gaskin's analysis, the judge then painstakingly addressed each itemized
pendente lite expense, and explained the calculation of her award.
Turning to plaintiff's counsel fees, the judge considered McCann's
credentials as a certified matrimonial attorney, finding his hourly rate was
commensurate with his "experience and expertise in the Bergen County
Vicinage." Noting this enforcement matter "took a lot of work and detail[,]" the
judge found McCann's "23.1 hours in connection with this post-judgment motion
practice [wa]s warranted" under Rule 4:42-9, RPC 1.5(a) and Williams v.
Williams, 59 N.J. 229 (1971). The judge elaborated:
This should have been straightforward enforcement,
based upon the [pendente lite] orders and my [FJOD].
. . . So [McCann's] work was necessary and required
and well done.
. . . . I found the fee to be reasonable, the amount
involved and results obtained. Plaintiff prevailed on all
aspects of the motion and took a good faith position
while the defendant was unreasonable and acted in bad
faith.
Further, the judge determined defendant's accord and satisfaction
argument was misplaced, recognizing the Family Court "is a court of equity"
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and "not a [c]ivil case where the [c]ourt would apply the [Uniform Commercial
Code (U.C.C.)] strictly." The judge continued:
I [a]m not familiar with the U.C.C. really being
controlling in a Family Court case and on many of the
issues presented today, especially significant to the
[c]ourt, deal with the children. [The issues also d]eal
with health insurance costs, even the cable bills, the car
insurance, the homeowners fees, at a time when [the
children] were not emancipated and I am not familiar
with any authority that says the U.C.C. would be used
to prejudice the children. They have rights that are
superior to parents and many other people in society.
So I find there was no meeting of the minds. I am not
going to strictly apply the U.C.C. or an accord and
satisfaction for those reasons.
Ultimately, the judge awarded $8677.67 for past due pendente lite
payments, and $9124.50 for counsel fees. In doing so, the judge noted
"defendant tried to misrepresent certain things [concerning his purported
pendente lite payments] to the [c]ourt and adversary and to plaintiff." He failed
to make pendente lite payments as they became due despite "being presented
with proofs on a fluid basis." Instead, it was necessary for plaintiff to incur the
cost of Gaskin's "extremely detailed report." The judge also permitted plaintiff
to file a supplemental certification to support her award of professional fees for
services rendered by Gaskin.
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Defendant moved for reconsideration of the January 26, 2018 order;
plaintiff filed a cross-motion seeking additional counsel fees and professional
fees incurred while contesting defendant's motion. Both parties were
represented by counsel on the March 29, 2018 return date.
On April 4, 2018, Judge Firko rendered an extensive oral decision, which
spanned twenty-nine transcript pages, denying defendant's motion for
reconsideration and plaintiff's application for additional fees. The judge
squarely addressed the issues raised. Citing Cummings, the judge determined
defendant failed to meet the legal standard for reconsideration. Referencing her
lengthy January 26, 2018 oral decision, the judge reiterated that Gaskin's work
was "meticulous" and provided ample support for her decision.
Notably, in response to defendant's certification accompanying his motion
for reconsideration, Gaskin submitted a detailed letter to McCann, analyzing
each of defendant's challenges to her forensic analysis. Quoting extensively
from that correspondence, the judge placed "a lot of weight" on Gaskin's review.
In sum, Gaskin determined defendant "provided no additional financial
documentation. And many of his explanations and/or documents . . . were
duplicative." Accordingly, the judge determined defendant provided no new
information that would warrant reconsideration or modification of her prior
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order. The judge noted defendant could have retained a forensic accountan t to
rebut Gaskin's opinion, but he failed to do so.
Finally, Judge Firko determined plaintiff was entitled to $10,100.99 for
Gaskin's fees. In support, of her decision, the judge set forth Gaskin's
professional credentials and the extensive forensic accounting services she
provided. For example, Gaskin's analysis included numerous orders entered in
this matter and "a detailed review of bank statements, cancelled checks, [and]
copies of original invoices." Following her review of Gaskin's invoices for
services rendered, the judge concluded Gaskin's fees were "reasonable and
accurate."
Accordingly, the judge entered an order on April 4, 2018, requiring
defendant to pay plaintiff $27,903.26, i.e., $8677.77 2 for past due pendente lite
payments, $9124.50 for counsel fees, and $10,100.99 for professional fees. The
judge entered an amended order on April 6, 2018, correcting the date by which
defendant was required to remit payments. This appeal followed.
On appeal, defendant raises the following points for our consideration:
2
We note a ten cents discrepancy between the January 26, 2018 and April 4,
2018 orders. To the extent such mistake is not attributable to a mere
typographical error, we consider such discrepancy to be de minimus and not
material to the resolution of the issues presented on appeal.
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POINT I
STANDARD OF REVIEW [IS NOT DEFERENTIAL
BECAUSE THE COURT FAILED TO CONDUCT A
PLENARY HEARING.
(Not Raised Below) 3]
POINT II
JUDGE FIRKO'S INITIAL DECISION THAT THERE
WAS AN ACCORD AND SATISFACTION SHOULD
BE DISPOSITIVE[,] UNDER ALL OF THE FACTS
AND CIRCUMSTANCES OF THIS CASE.
POINT III
THE AWARD OF SUBSTANTIAL ATTORNEYS'
AND PROFESSIONAL FEES WELL BEYOND THE
DAMAGES SOUGHT AND WITHOUT REGARD TO
THE FINANCIAL ABILITIES OF THE PARTIES
WAS AN ABUSE OF DISCRETION.
We have considered these contentions in light of the record and applicable
legal principles, and conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for
the reasons expressed in Judge Firko's cogent March 29, 2018 decision,
3
As plaintiff correctly notes in her merits brief, defendant's failure to set forth
his argument for a plenary hearing in a proper point heading violates Rule 2:6-
2(a)(6). Accordingly, we decline to consider the argument. See Mid-Atl. Solar
Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011)
(declining to consider a "cursory discussion" that was "raised for the first time
. . . at the end of [the plaintiff]'s brief without a separate point heading"); Pressler
& Verniero, Current N.J. Court Rules, cmt. 2 on R. 2:6-2 (2019).
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incorporating her thorough January 26, 2018 decision. In doing so, we discern
no abuse of discretion on the part of the trial judge. Granata, 446 N.J. Super. at
468. We add only the following brief comments.
Defendant's argument that the judge failed to consider factors one, three,
eight, and nine of Rule 5:3-5(c),4 which permits an award of fees in a Family
Part action, is belied by the record or otherwise misplaced. For example, Judge
Firko explicitly discussed factor one, "[t]he financial circumstances of the
parties." The judge noted the disparity between the parties' incomes,
acknowledging she had imputed respective incomes of $34,000 to plaintiff and
$127,000 to defendant. 5 The judge also discussed factor three, "[t]he
4
Pursuant to Rule 5:3-5(c) the court may 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.
5
We previously upheld Judge Firko's imputation of income on appeal.
Colarusso, slip op. at 13-14.
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reasonableness and good faith positions of the parties[,]" finding defendant
acted in bad faith.
Regarding Gaskin's professional fees, Judge Firko discussed at length the
accountant's credentials and her work performed, which "included a detailed
review of bank statements, cancelled checks, [and] copies of original invoices."
Holding Gaskin to the same standard set forth in Williams that applies to an
attorney's fee application, the judge noted Gaskin provided the "date, the staff
or partner at the firm who worked on the case, a description of the services and
the amounts billed." See Williams, 59 N.J. at 235 (finding fees were reasonable
when "[t]he record indicate[d] that a great deal of time and effort was expended
. . . ."). Additionally, the judge found the necessity of Gaskin's work "was
reasonably and []proximately caused by . . . defendant's refusal to comply with
the prior orders of the [c]ourt and the [FJOD]."
We also reject defendant's contention that the fees were unreasonable
because they exceeded the award for pendente lite relief. See Litton Indus., Inc.
v. IMO Indus., Inc., 200 N.J. 372, 387-88 (2009) (holding that when an attorney
fee exceeds the amount of damages recovered, the court may still uphold such
fees if they are reasonable).
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Little needs to be said regarding defendant's accord and satisfaction
argument. In particular, defendant claims Judge Firko's July 7, 2017
determination that plaintiff's acceptance of defendant's $1139.63 check absolved
his pendente lite obligations under the law of the case doctrine. As defendant
acknowledges, however, that doctrine is a non-binding rule intended to prevent
relitigation of a previously resolved issue. See Lombardi v. Masso, 207 N.J.
517, 538-39 (2011).
Here, when presented with Gaskin's detailed analysis, the judge
essentially reconsidered her July 7, 2017 order. Indeed, during the November
9, 2017 status conference, the judge recognized plaintiff's application was "a
motion for reconsideration in disguise." Although in rendering her January 26,
2018 decision, the judge did not explicitly cite the legal standard for
reconsideration, she acknowledged the inequities of applying accord and
satisfaction to the payment at issue in this Family Part matter.
Moreover, when Judge Firko entered the July 7, 2017 order, she did not
have the benefit of Gaskin's analysis. As McCann argued before the judge
reconsidered her decision, "there was no meeting of the minds, there was no
bon[a]fide dispute as to the amount and [plaintiff] never expressed any intention
of accepting [defendant's $1139.63 check] as payment in full of almost $9,000
A-4073-17T4
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that she says is due to her . . . ." Accordingly, the judge properly exercised her
discretion and correctly determined pendente lite support was due and owing.
Affirmed.
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