Opinion
DOCKET NO. A-4566-13T4
12-23-2015
O.R.N., Plaintiff-Respondent, v. MARIAMA BAH, Defendant-Appellant.
Grant J. Robinson argued the cause for appellant. Patricia Garity Smits argued the cause for respondent.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-422-05. Grant J. Robinson argued the cause for appellant. Patricia Garity Smits argued the cause for respondent. PER CURIAM
Defendant Mariama Bah appeals from a trial court order dated May 1, 2014, vacating plaintiff O.R.N.'s accumulated child support arrears and entering judgement against defendant for counsel fees and costs. After careful consideration of the record, we reverse and remand for further proceedings consistent with this opinion.
Defendant and plaintiff are the natural parents of S.N. The first order for child support between the parties was entered on September 27, 2004. Plaintiff was ordered to pay $169 per week in support effective May 6, 2004, and $6 per week toward arrears, for a total of $175 per week in child support. Although the Child Support Guidelines (guidelines) determined that plaintiff was to pay $160 per week in child support, defendant's alleged work-related childcare expenses increased that amount to $169.
We note, the parties' attorneys have been unable to locate all of the pleadings and documents predating August 2004.
On January 20, 2005, plaintiff's weekly payment of arrears was increased from $6 to $30. In May 2006, the cost of living adjustment (COLA) applied to plaintiff's support payments, which resulted in his weekly child support increasing from $169 to $183. The payment of $30 per week for arrears remained the same for a total of $213.
On April 30, 2007, defendant sought an increase in the order. At the hearing, defendant claimed she was a full-time student about to begin a two-year Registered Nurse program for nursing. Defendant also testified that S.N. was enrolled in schooling costing $945 per month and she had already made the $1,000 deposit for him to attend. By order dated June 1, 2007, plaintiff was ordered to pay $247 per week in child support, effective April 30, 2007, and an additional $50 per week for arrears. In reaching this determination, the judge cited the guidelines and considered defendant's imputed gross annual income of $20,000, plaintiff's actual gross annual income of $50,000, defendant's additional dependent deductions, and defendant's alleged childcare expenses of $945 per month for schooling. In May 2009, following a COLA review, plaintiff was ordered to pay $258 per week for child support and $50 per week for arrears. In May 2011, plaintiff's child support payment was increased to $269 per week.
This amount was later determined to be inaccurate, as defendant's 2008 income tax return revealed an adjusted gross income three times the imputed amount and that she was in possession of two income producing properties in 2007.
The case was transferred to a second judge in 2012. Sometime before March 2012, both parties filed applications for modification of child support. Defendant sought an increase in weekly payments, while plaintiff sought a decrease. After reviewing the extensive record and meeting with the parties, the judge denied both applications on March 6, 2012, "for failure to provide current [Case Information Statement], last [three] pay stubs, [and] last year's tax return as required by the rules[.]"
On October 12, 2012, defendant filed another motion seeking an increase in child support. In response, plaintiff filed an application for modification in opposition to defendant's motion on January 18, 2013. On January 23, 2013, after hearing oral argument, the judge ordered a plenary hearing on all issues, and on an interim basis, continued the current child support payments and suspended the payment of arrears. The parties were to complete discovery in ninety days.
The case was transferred to a third judge in or around January 2013. In May 2013, pursuant to a COLA, plaintiff was ordered to pay $281 per week for child support and $50 per week for arrears. On June 13, 2013, plaintiff's counsel sent a letter to defendant's counsel seeking more definitive responses to interrogatories, compliance with the notice to produce and production of defendant's income tax returns. A second letter was sent to defendant on June 21, 2013, reiterating the prior requests.
On August 1, 2013, plaintiff filed a motion to dismiss defendant's October 12, 2012 application seeking an increase in child support. Plaintiff also sought other forms of relief, including "vacating the arrears based on defendant's misrepresentations and fraud on the court" and requiring defendant to pay his counsel fees in connection with the October 12, 2012 motion.
The plenary hearing on defendant's October 12, 2012 application for modification was scheduled for October 4, 2013. The trial court granted defendant an adjournment until January 21, 2014. In an order dated October 4, 2013, the judge mandated that "[defendant] shall provide all discovery indicated in [plaintiff's] attorney's letters dated June 13, 2013, [and] June 21, 2013[,] with the exception of [defendant's] husband[']s income. All to be provided within 30 days."
On January 16, 2014, plaintiff filed a motion to enforce litigant's rights and for other relief. Prior to the January 21, 2014 hearing, the trial court agreed to adjourn the hearing for a second time. The next hearing date was set for February 20, 2014.
On February 20, 2014, defendant appeared at the hearing with new counsel. After meeting with defendant's counsel, the judge agreed to adjourn the hearing for a third time and set the plenary hearing for March 20, 2014. The judge attached a number of stipulations to the February 20, 2014 order. One condition was that
"[n]o later than March 20, 2014, the [d]efendant shall pay to . . . [plaintiff's counsel] all counsel fees and costs associated with the filing of the August
[1], 2013 motion, as well as for the appearance and travel to [c]ourt on February 20, 2014. Failure to pay counsel fees in full as ordered will result in dismissal of the [d]efendant's motion for an increase in child support[.]"
In addition, defendant was ordered to comply with the October 4, 2013 order, which required her to show proof of income and work-related childcare expenses. Per the February 20, 2014 order,
"[f]ailure to provide discovery [within thirty days], including (but not limited to) proof of income and work-related daycare expenses[,] will result in the [c]ourt drawing an adverse inference that [d]efendant did not incur the daycare expenses in question and misrepresented her income, and the [d]efendant's motion for an increase in child support will be dismissed[.]"
The judge adjourned the hearing on March 20, 2014, and set April 16, 2014, as the final hearing date in order to provide defendant time to comply with the February 20, 2014 order. The judge heard oral argument on defendant's application for an increase in child support and plaintiff's motion to dismiss on April 16, 2014. Prior to the hearing, defendant did not provide plaintiff with the ordered discovery or pay the counsel fees and expenses associated with the August 1, 2013 motion and the February 20, 2014 hearing.
The judge placed the ruling on the record after oral argument on April 16, 2014. As a result of defendant's failure to comply with the February 20, 2014 order, the judge drew an adverse inference that defendant did not incur work-related childcare expenses and misrepresented her income. Accordingly, her application for modification was dismissed and plaintiff was granted partial relief. The judge held that plaintiff overpaid defendant $69,813 for work-related childcare expenses from 2004 until 2014. As a result, the judge vacated plaintiff's accumulated child support arrears, which totaled $38,282.29, and entered judgment in favor of plaintiff and against defendant in the amount of $31,530.71; the balance owed after the vacation of the child support arrears. Judgment was also entered against defendant in the amount of $5,648 for her failure to comply with the February 20, 2014 order requiring her to pay plaintiff's counsel's fees and costs in connection with the August 1, 2013 motion and February 20, 2014 hearing. The judge preserved plaintiff's fraud claim and granted defendant fourteen days to submit proof that S.N.'s school bill totaling $9,000 constituted a work-related childcare expense. On May 1, 2014, the judge memorialized his findings in a written opinion.
Defendant now raises the following points on appeal:
[POINT I]
The court violated N.J.S.A. 2A:17-56.23(a) when vacating the plaintiff's child support arrears retroactive to the support order of 2004.
[POINT II]
The court did not have any basis to grant relief from the child support under R. 4:50-1.
[POINT III]
The plaintiff should have been barred by the doctrine of laches for waiting nine years to seek credit for work related childcare expenses.
[POINT IV]
The court should not have entered an order for attorney's fees or entered judgment in favor of plaintiff without first finding the fees to be reasonable.
In reviewing the decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "'family courts' special jurisdiction and expertise in family matters.'" N.J. Div. of Youth & Servs. v. M.C. III, 201 N.J. 328, 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We first address defendant's contention that the retroactive vacation of plaintiff's accumulated child support arrears was in violation of N.J.S.A. 2A:17-56.23a. At the April 16, 2014 hearing, the judge, in vacating the child support arrears, opined:
The [February 20, 2014] [c]ourt order specifically said if the information was not timely furnished [] within . . . [thirty] days that we could draw an adverse inference that [defendant] did not . . . incur daycare expenses in question, and misrepresented her income.
. . . .
First of all, with the request with regard to the daycare, quite frankly and candidly there's really no dispute as to how [plaintiff's counsel] and her client arrived at the $69,813[.] [A]lthough there is . . . an issue with regard to a [school] bill for $9,000, [] there's no proof candidly that it was work related childcare expenses because . . . it was not claimed on the tax return. . . . So I have a serious question as to that.
. . . .
. . . Now, I'm satisfied that the defendant has not adequately proven the
. . . daycare expenses that the plaintiff was assessed for, and that in fact he's been overpaying, and . . . candidly the defendant herself acknowledges that . . . she pays cash [to the people that are watching S.N.], and that they don't want to get involved. So she's never going to be able to provide it, and that's [] the down side to [] utilizing people that are not[,] I guess for a lack of a better word[,] . . . [a] professional daycare facility that would provide . . . proof[.] . . .
And . . . the [c]ourt has serious concerns about the credibility of the defendant given the history of this case and the lack of candor to the extent that the [c]ourt had to enter an order that they were going to draw an adverse inference from the defendant if she didn't produce . . . proof of daycare expense[s], and in fact, candidly other than one [school] bill she has not. So that adverse interest is drawn, and . . . that reflects upon the credibility of the defendant, and in fact[,] the believability of the . . . defendant.
. . . .
. . . I will vacate all the arrears, which as of today's date are [$38,282.29]. They are hereby vacated. I will enter a judgment for the balance of the $69,813.
The May 1, 2014 order vacating plaintiff's arrears and entering judgement states in pertinent part:
2. As of April 16, 2014, child support arrears on Probation account [] are $38,282.29. Effective April 16, 2014, all child support arrears shall be vacated. . . .
3. The [c]ourt finds that the [p]laintiff overpaid the [d]efendant $69,813.00 for work-related childcare expenses from 2004-
2014. A judgment shall be entered against the [d]efendant in the amount of $31,530.71 (the balance owed after the vacation of the child support arrears).
N.J.S.A. 2A:17-56.23a, the anti-retroactive support statute, provides:
No payment or installment of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.N.J.S.A. 2A:17-56.23a "was enacted to insure that ongoing support obligations that became due were paid." Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). We have held that the statute's applicability "is limited to prevent[ing] retroactive modifications decreasing or vacating orders allocated for child support." Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999); see also Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996) (finding the trial court's decision to retroactively reduce child support payments "violated the statutory mandate."). Moreover, we noted in Diehl v. Diehl, 389 N.J. Super. 443, 452 (App. Div. 2006), that retroactive modification is limited to the date of the moving parties "first motion for modification." See also Ibrahim v. Aziz, 402 N.J. Super. 205, 214 (App. Div. 2008).
We acknowledge the harsh effect, in some instances, of the statute's ban on the retroactive reduction or elimination of existing support awards, pursuant to the plain language of N.J.S.A. 2A:17-56.23a and the judicial application of that law. However, it is not for this court to ignore precedent.
N.J.S.A. 2A:17-56.23a was enacted to prevent the retroactive modification of child support orders. See Keegan, supra, 326 N.J. Super. at 291; see also Walles, supra, 295 N.J. Super. at 514. The statute's plain language provides, "no payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification . . . ." N.J.S.A. 2A:17-56.23a. Thus, the statute prohibits the retroactive vacation or modification of child support arrears accumulated prior to the filing of a motion for modification. Although plaintiff did not file a motion for downward modification of child support until January 18, 2013, the order under review vacated arrears from 2004; in contravention of N.J.S.A. 2A:17-56.23a.
We note the plaintiff did not argue for and the judge did not rule upon the statute's limited exceptions permitting retroactive reduction or elimination of support awards, including Rule 4:50-1. See Fall & Romanowski, Current N.J. Family Law 733-39 (2015).
In addition to the retroactive vacation of arrears, defendant argues the court erred in entering judgment against her for counsel fees and costs as the judge failed to consider "the reasonableness of the counsel fee award." Defendant also argues the judge should have entered an order specifying the amount of fees defendant was required to pay, rather than relying on plaintiff's counsel's certification of services. Defendant further cites to N.J.S.A. 2A:34-23 and argues the judge should have "'consider[ed] the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.'"
"Rule 4:42-9(a)(1) authorizes the award of counsel fees in a family action on a final determination pursuant to [Rule] 5:3-5(c)." Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008). In determining the fee award, the trial court judge should consider the following factors codified in Rule 5:3-5(c):
(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.As noted by our Supreme Court, "[b]ecause it is fundamental to the fairness of the proceedings and serves as a necessary predicate to meaningful review . . . [the] 'trial court must analyze the [relevant] factors in determining an award of reasonable counsel fees and then must state its reasons on the record for awarding a particular fee.'" R.M. v. Supreme Court of N.J., 190 N.J. 1, 12 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)).
During the February 20, 2014 hearing, in response to defendant's third request for an adjournment, the judge stated:
. . . I'm going to give [defendant's counsel] those [thirty] days. But with a number of stipulations. . . .
. . . .
Number two, . . . [defendant] is to pay the attorney's fees, including travel time, for [plaintiff's counsel], as well as the costs, legal fees incurred for her having to file . . . this last motion for discovery. [Plaintiff's counsel is] to submit a certification to the [c]ourt and then cc [defendant's counsel].
And further that those fees must be paid . . . within the next [thirty] days. [Defendant's counsel] will not proceed and . . . [defendant's] motion will be dismissed if those fees are not paid.
At the April 16, 2014 hearing, the following exchange occurred between the judge and plaintiff's counsel:
THE COURT: [Counsel,] were you paid?
COUNSEL: No I was not, [Y]our [H]onor[.]
THE COURT: Okay.
COUNSEL: . . . I have sent that letter and the certification to Your Honor and [defendant's counsel] on February 27[], [2014,] and [defendant] hasn't paid any portion of it nor did I hear from [defendant's counsel] during the entire [interim].
The judge then held:
. . . the [c]ourt[,] entered an order saying that [defendant] had to pay counsel fees because . . . [defendant] hired another attorney, and . . . he had asked for an adjournment to bring himself up to speed in this matter. It's been listed multiple times. There are a number of attorneys involved in this case, and it only seemed fair and the [c]ourt made that decision because it was not right that the matter be adjourned at the very last minute when it has to be resolved, and there are still outstanding issues that [defendant] did not provide to counsel resulting in having to make motion after motion. . . .
. . . .
. . . The [c]ourt was forced to ultimately enter an order that required information to be by a date certain, and [the] information was not provided by [the] date certain. The order required [defendant] to pay counsel fees. Counsel fees were not . . . paid.
In closing, the trial court judge noted defendant
[has] been order[ed] to pay counsel fees in the amount of $5,600, and the sanction that [the] [c]ourt imposed was dismissal of her application for an increased child support for her lack of compliance with the February 20[], 2014 order.
Following the April 16, 2014 hearing, the judge entered judgment against defendant in the May 1, 2014 order, ordering her to pay $5,648.50 for her failure to comply with the court's February 20, 2014 order as to counsel fees and costs.
In the February 20, 2014 order, the judge ordered defendant to pay "all counsel fees and costs associated with the filing of the August [1], 2013 motion, as well as for the appearance and travel to [c]ourt on February 20, 2014. Failure to pay counsel fees in full as ordered will result in the dismissal of the [d]efendant's motion for an increase in child support[.]" The order did not specify the amount to be paid in counsel fees and associated costs. Plaintiff's counsel allegedly submitted a certification to the judge and defendant on February 27, 2014, per the court's order during the February 20, 2014 hearing. The certification stated that plaintiff's counsel's fees and costs totaled $5,648.50.
As noted, the judge did not cite to the "relevant factors" in the determination of an award of reasonable counsel fees. See R.M., supra, 190 N.J. at 12. In addition, the judge did not articulate the analysis undertaken in the calculation of the fees. Accordingly, we conclude that since no "meaningful review" took place, the counsel fee award must be set aside. Ibid. ; see also Gordon v. Rozenwald, 380 N.J. Super. 55, 79 (App. Div. 2005).
We are constrained to reverse the May 1, 2014 order vacating plaintiff's accumulated child support arrears retroactively to May 2004. In light of the potential relief afforded by N.J.S.A. 2A:17-56.23a, we remand for a determination when plaintiff filed a motion for reduction and whether that date will apply for the reduction plaintiff seeks. We remand as well for the court to determine, through a process consistent with our decision, plaintiff's claim for counsel fees.
Finally, given our holding, we do not need to address defendant's remaining arguments.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION