Opinion
DOCKET NO. A-2709-13T1
07-02-2015
SILVANO COSCO, Plaintiff-Appellant, v. ROXANA COSCO, Defendant-Respondent.
Law Offices of Antonietta Milelli, attorneys for appellant (Ms. Milelli and Siobhan Fuller, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-26-02. Law Offices of Antonietta Milelli, attorneys for appellant (Ms. Milelli and Siobhan Fuller, on the brief). Respondent has not filed a brief. PER CURIAM
In this post-judgment dissolution matter, we once again address the issue of a child's emancipation, this time in the context of a parent who seeks to terminate his support obligations based upon a settlement agreement providing for termination of support at age eighteen, but requiring the parties to pay for their children's education expenses beyond that age.
Plaintiff Silvano Cosco appeals from the Family Part's January 10, 2014 order denying: (1) reconsideration of its October 7, 2013 order; (2) emancipation of the parties' two sons; (3) termination of child support; and (4) his request for credits for overpayment of support. He also appeals from the court's separate order of the same date granting defendant, Roxana Cosco's request for an award of counsel fees. On appeal, plaintiff argues the Family Part judge abused his discretion by not enforcing the parties' property settlement agreement (PSA), modifying support based upon a change in circumstances, by deciding his motion without oral argument or a plenary hearing and not issuing a statement of reasons as required by court rule. He also argues "the doctrines of equitable estoppel, detrimental reliance and bargained for exchange . . . bar[red defendant] from objecting to the termination event as set forth in the parties' PSA. Also, he maintains the "public policy against waiver of child support [did] not apply . . . as the" PSA's support provisions "were fair and equitable." Finally, plaintiff argues the court's award of counsel fees was an abuse of discretion.
In the earlier order, the court denied plaintiff's motion seeking (1) the emancipation of the parties' older son, (2) the termination of child support for that son, (3) having defendant pay support to plaintiff for the younger son until he was emancipated in August 2013, and (4) a credit for overpayment of support.
We considered each of plaintiff's contentions in light of the record and the applicable legal principles. We affirm.
The parties were married in 1994 and divorced in 2002. They have two sons, one born in 1994 and the other in 1995. Pursuant to their PSA, they shared joint legal custody of their sons, with defendant being the parent of primary residence. Plaintiff agreed to pay child support, "unless otherwise provided" in the PSA, until a child attained the age of eighteen years, or upon the child's death, if earlier.
The parties further agreed that their children should attend college and they established a process that was to commence by the end of a child's junior year in high school, to consult with each other and the child "to determine the availability of monies for college education," and to investigate colleges. They also agreed to "contribute equally toward the children's post-secondary college expenses after taking into consideration all loans, scholarships, grants and income earned by the children." Also, they acknowledged the existence of two custodial accounts with a brokerage, which they agreed to maintain and use for the children's college education. "No money [was to be] withdrawn from said accounts without the written consent of" both parties, and plaintiff was to receive copies of all statements for these accounts.
In July 2013, plaintiff filed his motion seeking the emancipation of his sons and the termination of support. He requested oral argument if the motion was opposed. Specifically, he sought the emancipation of his older son as of July 2012 and his younger son as of August 2013, with the appropriate adjustment for any overpayment made during the year since his older son's emancipation. Plaintiff also sought an order to have defendant pay support to him as their youngest child was residing in plaintiff's home, rather than defendant's; and, "directing defendant to provide proof of the children's college accounts . . . along with copies of the account statements from 2002 to present."
In his certification, plaintiff stated his support obligation should be terminated upon each child's eighteenth birthday. He also advised the court that both sons were living with him, "at least 50% of the time," and with plaintiff's new wife, who was unemployed, and the couple's "newborn baby and toddler." Plaintiff stated:
Based on this and my limited earnings and increased expenses, it is not just or reasonable to require child support for our two adult sons. As always, I intend to
provide for all my children on an ongoing and as-needed basis. However, child support to defendant is unwarranted and in fact she should be paying child support to me.
Plaintiff also asked for copies of statements for the sons' custodial accounts because he never received any in the past and was unaware of "the amount of money set aside for the sons' future education nor [was he] aware of any account activity taken by [d]efendant without [his] consent."
In addition to filing his certification, plaintiff supplied a case information statement (CIS) with copies of portions of his two most recent federal tax returns. In the CIS, he disclosed annual expenses of approximately ninety five thousand dollars. His joint tax return with his wife disclosed gross income of approximately seventy thousand dollars annually, derived from approximately fourteen thousand dollars, which he earned as a self-employed landscaper, thirty five thousand from rental income, and almost twenty thousand dollars collected in unemployment benefits. Notably, no copies of schedules were provided explaining either his business or rental income, and pages two and three of his CIS, relating to his income, especially present earnings, were blank. (He merely indicated — "see tax return attached" and entered zeros for his income and deductions.).
In response to plaintiff's motion, defendant filed a cross motion in which she requested the denial of plaintiff's motion, an order directing plaintiff to be responsible for one half of one son's outstanding medical bill, and an award of counsel fees. In her supporting certification, she described in detail each sons' status regarding their education and residency. She stated that their older son "is presently a full time college student" and their younger son "is about to start his senior year in high school." She explained that their older son graduated from high school in June 2013, worked at a summer job near plaintiff's residence, and therefore spent "many overnight's" at plaintiff's home, but returned to her home to live since he began community college on August 29, 2013, because he "can't work full time and doesn't have any means to support himself." Defendant attached documents from the college which evidently confirmed his enrollment.
Contrary to Rule 2:6-1(a)(1), plaintiff did not include in his appendix copies of any of the exhibits attached to defendant's certification.
As for the younger son, she explained he too worked part time in the summer near his father and stayed there "frequently . . . so [the two sons] didn't have to burn gasoline traveling [from work] to [her] home . . . each night." She confirmed he was just starting his senior year in high school and was living with her. As a result, defendant asked the court to deny plaintiff's motion to compel her to pay support.
Defendant argued in her certification that the PSA's provision concerning child support terminating at eighteen years of age while the children are still in school was "against public policy" because "a parent cannot waive receiving child support because this money belongs to the child." Also, support should not be terminated because their sons had "not moved beyond the sphere of [her] influence."
Defendant admitted she withdrew $2866.61 in 2006 from one of the sons' college accounts to "purchase appliances and set up the household for the children." She claimed plaintiff was aware of the use of those funds and that she would "make up the difference of what [she] used when it came time for the kids to look at schools." Defendant explained that she repaid the amount by paying $986 for their older son's trip to look at a college and then by applying to the balance she owed, the $1,312.15 owed to her in child support as a result of plaintiff "unilaterally" stopping his payments of child support. She attached documents to support these amounts. Defendant also provided details and supporting documents for the younger son's medical bill for which she sought an order compelling plaintiff to pay his share.
Defendant also explained that she too had remarried and had a ten-year-old child. She requested an award of counsel fees and indicated her income, forty-two thousand dollars per year, was insufficient to enable her to pay counsel fees to respond to plaintiff's application.
Plaintiff filed another certification in further support of his motion and in opposition to defendant's cross motion. In his certification, plaintiff stated the PSA should be enforced and support terminated, but he "fully acknowledge[ed] that [he] need[ed] to continue to support [their] children after they graduate high school by contributing to the cost of their college education[,]" which he had been doing by contributing to their college accounts, and by including "the incidental expenses that go along with sheltering and feeding two young men."
Plaintiff acknowledged he stopped paying support for two months in the summer and his sons were not living with him fulltime now that they were back in school. He stated: "the truth is that both boys stayed with me 100% of the time during this summer and 50% of the time during the school year." He argued, however, regardless of the fact the children had not "moved beyond the sphere of influence," the PSA's provision should be enforced and support terminated. He had a "right to terminate child support [because] the boys, have, are and will continue to be living with [him] at least 50% of the time." If his child support obligation was terminated, he would "be in a far better position to continue providing [his sons] with support, financial and otherwise, for as long as they need it." He also disputed defendant's statements concerning the sons' desire to live with her versus spending most of their time in the future with plaintiff.
Plaintiff also indicated, contrary to his CIS, his business earned gross income paid by checks from his customers, but because of his business' expenses, he experienced "a loss." He did not, however, describe those expenses. Plaintiff stated he was not aware of defendant's withdrawal of funds from their son's college account. As to defendant's claim for reimbursement of medical bills, plaintiff averred that he had had spent a considerable amount for the children's medical and other bills without any contribution from defendant, which "cancel[led] out" defendant's claim for reimbursement.
Here again plaintiff did not include in his appendix the exhibits he attached to his certification that evidently supported these contentions.
On October 7, 2013, the court entered two orders without oral argument or a plenary hearing. In one order, the court denied all of the relief sought by plaintiff, except it directed defendant to supply copies of the children's college account statements. In the other order, the court ordered plaintiff to be responsible for one half of his son's medical bill as requested by defendant. In his supporting statement of reasons, the judge stated oral argument was not necessary "because the submissions are clear about the parties' disputes and [it] would not have advanced the [c]ourt's understanding of [the] matters or provided an expeditious resolution of the parties' disputes." The judge also recited his understanding of the law governing emancipation, concluded that while "[a]ttainment of age 18 establishes prima facie, but not conclusive, proof of emancipation[,] . . . [a] child's admittance and attendance in college will overcome the rebuttable presumption that a child may be emancipated at age eighteen."
The judge included the same explanation later when he denied plaintiff's motion for reconsideration without oral argument. --------
Plaintiff filed his reconsideration motion within ten days of the court's order. He sought various other relief in that motion, including the termination or reduction of support because of changed circumstances. In his supporting certification, he argued that, because his and defendant's earlier certifications conflicted as to the children's residency, oral argument should have been granted. He further argued that he experienced a change in circumstances warranting modification of support because he experienced decreased earnings, was remarried with two additional children and his wife was unemployed. He argued "[t]he court mistakenly overlooked these facts along with the fact that both boys were residing entirely with me for over a two month period." He then argued the court "overlooked" all of the facts he claimed about the sons' residency and the requirements of the PSA he previously relied upon.
Plaintiff also alleged new facts, such as defendant benefiting economically from her relationship with her boyfriend, defendant convincing their son to quit his new job, that child support was originally calculated based upon the boys spending every other weekend with him, "and for at least two months prior to filing [his] motion, the boys lived with" him. He also certified that he paid thousands of dollars for the sons' medical, dental, cell phone, computer and automobile expenses, which the court "overlooked." Also, it overlooked the fact he continued to pay support when the sons were living with him and they lived with him, not full time but more than half of the time in 2013. He provided guidelines for the court's use if it determined that support should continue, based on his view of the children's residency. He concluded by averring the court should have scheduled a plenary hearing.
Defendant filed a cross motion in response to plaintiff's motion. In her motion, defendant sought the denial of plaintiff's motion, an increase in child support and an order restraining plaintiff from discussing the litigation with their sons or attempting to influence their decision regarding their residency at either parties' home. In her certification, she refuted many of plaintiff's claims and added a few new facts of her own. For example, she advised that her sons not only did not spend the entire summer with plaintiff, but actually spent the month of August 2013 with their aunt in Italy. She alleged plaintiff told his younger son that the boy had to decide where to live, and, if he chose defendant, plaintiff would not help the son pay for anything.
After considering the parties' submissions, the court entered its order denying both parties' motions, except it awarded counsel fees to defendant in the amount of $1275, after considering counsel's certification of services. In the order's accompanying statement of reasons, the court explained its decision. It first reviewed the law applicable to reconsideration motions, stated again there was no reason to emancipate the children, and then explained its award of counsel fees to defendant, relying on its finding that plaintiff acted in bad faith by pursing the motion in an attempt "to trigger a plenary hearing and that defendant was at a "decided financial disadvantage" to pay counsel fees in having to oppose plaintiff's motion. This appeal followed.
We review the decision on a motion for reconsideration for an abuse of discretion. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). If the Family Part's decision is based upon earlier orders regarding emancipation and support, "[w]e 'do 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[.]'" Llewelyn v. Shewchuk, 440 N.J. Super. 207, 213 (App. Div. 2015) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "'Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Accordingly, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, 'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Id. at 213-14 (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)).
"However, we confer no deference to a trial court's interpretation of the law, which we review de novo to determine whether the judge correctly adhered to applicable legal standards." Id. at 214 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "Reversal is reserved only for those circumstances when we determine the factual findings and legal conclusions of the trial judge went 'so wide of the mark that a mistake must have been made.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). "It is when we are convinced the trial court's determinations 'are so manifestly unsupported . . . as to offend the interests of justice,' that we intervene." Ibid. (quoting Rova Farms, supra, 65 N.J. at 484).
We begin our review with the guiding principle in child support disputes — child support belongs to the children of divorced parents, and they are entitled to support until they are emancipated, regardless of any agreement of their parents to the contrary. Id. at 214-15.
A determination of emancipation is a legal concept, imposed when the fundamental dependent relationship between parent and child ends. See Dolce v. Dolce, 383 N.J.
Super. 11, 17 (App. Div. 2006) (stating emancipation is "the conclusion of the fundamental dependent relationship between parent and child"). It is not automatic and "need not occur at any particular age . . . ." Newburgh, supra, 88 N.J. at 543. When the circumstances surrounding the parent-child relationship support a finding the child is emancipated, "the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Filippone, supra, 304 N.J. Super. at 308. However, a child's right to support is also not "defeated merely because both parents are united in their determination to declare the child emancipated." Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989).
The law also provides that once a child reaches the age of majority, now eighteen, N.J.S.A. 9:17B-3, a parent has established "prima facie, but not conclusive, proof of emancipation." Ibid. (citations omitted). Once the presumption is established, the burden of proof to rebut the statutory presumption of emancipation shifts to the party or child seeking to continue the support obligation. See Filippone, supra, 304 N.J. Super. at 308. The presumption of emancipation may be overcome by evidence that a dependent relationship with the parents continues because of the needs of the child. Dolce, supra, 383 N.J. Super. at 18.
Deciding whether a child is emancipated requires a fact-sensitive analysis. Newburgh, supra, 88 N.J. at 543. "[T]he essential inquiry is whether the child has moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own." Filippone, supra, 304 N.J. Super. at 308 (citations and internal quotation marks
omitted). A court's emancipation "determination involves a critical evaluation of the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce, supra, 383 N.J. Super. at 18 (citing Newburgh, supra, 88 N.J. at 545).
[Id. at 215-16.]
Any agreement attempting to abrogate a child's right to support is not enforceable. As the Supreme Court has observed:
Our courts consistently have held that an agreement between parents purporting to waive child support does not affect the child's right to those benefits. See Kopak v. Polzer, 4 N.J. 327, 332-33 (1950) (holding that mother's agreement to release father from child-support obligations did not discharge father's statutory obligation to support child); Martinetti[ v. Hickman], 261 N.J. Super. [508,] 512 [(App. Div. 1993)] (holding that consent order, whereby parents agreed that support would discontinue after two years, was not binding on child); Ryan v. Ryan, 246 N.J. Super. 376, 383 (Ch.Div.1990) ("Agreements by parents [concerning child support] have no binding effect as to the welfare of the children").
[Kibble v. Weeks Dredging & Constr. Co., 161 N.J. 178, 191 (1999).]
Applying these principles here, we conclude the Family Part judge correctly determined that, based on the parties' certifications confirming the children were still in school and reliant upon their parents for support, neither child was emancipated, and neither their turning eighteen nor the PSA altered their entitlement to support. See Gac v. Gac, 186 N.J. 535, 543 (2006); see also Moehring v. Maute, 268 N.J. Super. 477, 480-81 (Ch. Div. 1993) (holding a child past the age of majority who is a fulltime student, diligent in her studies, getting good grades, and still dependent on her parents, is not emancipated and is entitled to continued financial support if the parents have the ability to pay). We find no error in the judge's denial of plaintiff's reconsideration motion as to emancipation because plaintiff failed to supply any newly discovered information or establish that the court erred as to its legal conclusions. See Palombi v. Palombi, 414 N.J. Super. 274, 288-89 (App. Div. 2010); Fusco, supra, 349 N.J. Super. at 462-63. We, therefore, find no abuse in the court's discretion by its order denying emancipation and its refusal to reconsider its determination.
We turn our attention next to the balance of the motion judge's decision to the extent it was in response to plaintiff's request for reconsideration of relief already denied, or a demand for additional relief. As to reconsideration, under Rule 4:49-2, the proper object of such a motion is to correct a court's error or oversight, and not to "re-argue [a] motion that has already been heard for the purpose of taking the proverbial second bite of the apple." State v. Fitzsimmons, 286 N.J. Super. 141, 147 (App. Div. 1995), certif. granted, remanded on other grounds, 143 N.J. 482 (1996). "'Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) 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. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). "[T]he magnitude of the error cited must be a game-changer for reconsideration to be appropriate." Palombi, supra, 414 N.J. Super. at 289. "Said another way, a litigant must initially demonstrate that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage in the actual reconsideration process." Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401 (emphasis added)).
We conclude from our review of the record that plaintiff's claims seeking a modification of support based on allegations relating to changes in the children's residencies was already properly determined by the court in its October 2013 order. Plaintiff's submissions on reconsideration did not add anything to the argument and constituted a "rehashing" of what was already decided. We agree therefore the motion judge properly denied the motion on that basis.
Also, to the extent plaintiff sought a hearing as to his demand for modification of child support independent of his reconsideration motion, his evidence failed to satisfy the requirements for establishing a prima facie claim. "[T]o be entitled to a hearing on whether a previously-approved support award should be modified, the party moving for the modification bears the burden of making a prima facie showing of changed circumstances." Palombi, supra, 414 N.J. Super. at 290 (citation and internal quotation marks omitted). "As a necessary and preliminary step to meeting this burden, a movant is required to submit both a current and a prior CIS." Id. at 291 (citing R. 5:5-4(a)).
In pertinent part, Rule 5:5-4(a) provides:
When a motion . . . is brought for the . . . modification of an order or judgment for alimony or child support . . . , the pleading filed in support of the motion shall have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statements.
A party cannot refuse to provide the information required by the rule, and it is appropriate for a judge to insist upon compliance. See Zazzo v. Zazzo, 245 N.J. Super. 124, 128-29 (App. Div. 1990) (discussing the requirement and interpretation of the Rule in the context of a motion to modify child support), certif. denied, 126 N.J. 321 (1991). The rule's "mandate is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991) (discussing the importance of the requirement in the context of a motion to modify alimony and child support).
In Palombi, supra, plaintiff failed to submit a complete CIS with his motion to terminate or modify child support. 414 N.J. Super. at 291. He provided neither his complete current nor any prior CIS and, therefore, "'the court ha[d] no ability to assess his financial circumstances.'" Ibid. "This [alone was a] fatal flaw to [plaintiff's] application." Ibid. Without it, "no proof had been provided to show . . . [a] change in circumstances was permanent." Ibid. (citing Lepis v. Lepis, 83 N.J. 139, 151 (1980)).
Here, plaintiff's CIS was not only incomplete but was misleading. It failed to disclose any information about his income or his business expenses which supported the statements he made in his certification. Also, plaintiff failed to include his earlier CIS. Under these circumstances, the Family Part correctly denied plaintiff's request for modification without a hearing.
Similarly, we are constrained to affirm the denial of plaintiff's motion for reimbursement of various expenses because he failed to include in his appendix the supporting documents he or defendant submitted to the Family Part. "A party on appeal is obliged to provide the court with 'such other parts of the record . . . as are essential to the proper considerations of the issues.' R. 2:6-1(a)(1)(H); R. 2:6-3." Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002).
Finally, plaintiff argues the court improperly awarded counsel fees. "An award of counsel fees in a matrimonial action is discretionary." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010) (citation omitted), aff'd, 208 N.J. 409 (2011). "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. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)), or a clear error in judgment. Tannen, supra, 416 N.J. Super. at 285.
Rule 5:3-5(c) permits the court to grant counsel fees to "any party successful in the action, on any claim for . . . support . . . ." Whenever an application is made in the Family Part for counsel fees, "the court shall determine the appropriate award . . . if any, . . . [after] consider[ing] the factors set forth in [Rule 5:3-5], the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. Accordingly, the court must 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.See also Mani vs. Mani, 183 N.J. 70, 93-94 (2005). Even if every factor is not analyzed, as long as the judge provides support for the court's determination, these factual findings will not be disturbed. Reese v. Weis, 430 N.J. Super. 552, 586.
[R. 5:3-5(c).]
It is clear that "the reasonableness and good faith of the positions advanced by the parties" is one of several factors that the court must consider. R. 5:3-5(c)(3); Diehl vs. Diehl, 389 N.J. Super. 443, 454 (App. Div. 2006). But "bad faith for counsel fee purposes relates only to the conduct of the litigation . . . ." Mani, supra, 183 N.J. at 95. Only egregious conduct that forces unnecessary expenditures for counsel fees -- not assertion of a reasonable position ultimately rejected by the court -- warrants an award in favor of a party who has the ability to pay his or her own fees. Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (noting that the assertion of a position ultimately rejected by the court is not sufficient to establish bad faith). Findings of bad faith have been approved when based on conduct that unnecessarily complicates discovery or trial or increases litigation costs through defiance of court orders. See Yueh v. Yueh, 329 N.J. Super. 447, 461-62 (App. Div. 2000); Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999) (approving consideration of lack of candor); Kothari v. Kothari, 255 N.J. Super. 500, 513 (App. Div. 1992) (approving consideration of conduct involving dissipation of assets that had an impact on the "type of trial" required).
In cases involving conduct that supports a finding of bad faith, our courts consider whether "the amount of the counsel fee awarded is compatible with [the recipient's] financial needs and the [payor's] ability to pay." Kothari, supra, 255 N.J. Super. at 513; see also Chestone, supra, 322 N.J. Super. at 259 (disapproving punishment of litigation misconduct through a counsel fee award that was grossly disproportionate to the amount in dispute).
"Bad faith" cannot be a short-cut to an award of counsel fees while ignoring other relevant factors in R. 5:3-5(c). It certainly should not be found in the usual case. Family law judges are quite familiar with the emotional nature of this litigation and the acrimony and distrust that may well follow. It is only after a clear finding that actions taken by one party have resulted in unnecessary expenditure of funds by the other that bad faith is a proper consideration in a counsel fee award and then only to the extent of the funds expended.
An award of counsel fees is appropriate if the court finds that proceedings were commenced that were frivolous or designed to harass, resulting in expenditure of additional funds. Kozak v. Kozak, 280 N.J. Super. 272, 277-79 (Ch. Div. 1994), certif. denied, 151 N.J. 73; Yueh, supra, 329 N.J. Super. at 460; N.J.S.A. 2A:34-23. However, counsel fees may not be imposed simply as a punitive measure against a matrimonial litigator. Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997); Chestone, supra, 322 N.J. Super. at 256-57. Filing motions without required evidence supplied, is adequate, substantial and credible evidence to support the finding of bad faith based on plaintiff's non-disclosure of pertinent financial information, entitling defendant to a partial award of counsel fees. Adesa v Adesa, 392 N.J. Super. 58, 78-80 (App. Div. 2007).
We conclude the motion judge awarded a portion of the amount sought by defendant's counsel after a proper analysis, including consideration of the parties' disproportionate income and his finding of bad faith, based on defendant's attempt to rehash his original motion and his failure to supply required financial information in the form of a complete CIS with complete tax returns attached. We conclude that the award was proper.
To the extent we have not specifically addressed any of plaintiff's remaining arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(c)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION