Opinion
DOCKET NO. A-5764-09T1
08-10-2011
PAMELA DONFIELD, Plaintiff-Appellant, v. ROBERT DONFIELD, Defendant-Respondent.
Fox Rothschild LLP, attorneys for appellant (Eric S. Solotoff, of counsel and on the briefs; Robert A. Epstein, on the briefs). Haber Silver & Simpson, attorneys for respondent (Karin Duchin Haber, of counsel; Ms. Haber and Jani Wase Vinick, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez, C.L. Miniman and LeWinn.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-507-09.
Fox Rothschild LLP, attorneys for appellant (Eric S. Solotoff, of counsel and on the briefs; Robert A. Epstein, on the briefs).
Haber Silver & Simpson, attorneys for respondent (Karin Duchin Haber, of counsel; Ms. Haber and Jani Wase Vinick, on the briefs). PER CURIAM
Plaintiff Pamela Donfield (Pamela) appeals from a final order denying her application for counsel fees in prosecuting her action for dissolution of her marriage to defendant Robert Donfield (Robert). Because we find no abuse in the exercise of the judge's discretion in denying an award of counsel fees, we now affirm.
I.
The parties were married in 1997; three daughters were born of the marriage. Pamela, who has a college degree, left the workforce when their first child was born and remained a homemaker and the primary caretaker until she filed a Complaint for Divorce in October 2008. The divorce was acrimonious, and the parties had numerous disagreements over parenting time for Robert, his alleged alcohol use and his gambling, alleged domestic violence, and assorted financial matters.
The parties attended mediation but were not able to resolve their disagreements. They then consulted a custody expert, Dr. Amie Wolf-Mehlman, who wrote an evaluation and recommended a resolution of the parenting-time issues. Still, the matter was not resolved. The parties also hired competing experts to evaluate Robert's alleged alcohol dependency. The parties ultimately agreed by consent judgment to a resolution of the parenting-time dispute, with Robert receiving thirty-six percent of overnight parenting time plus additional dinner visitations.
Following more than a year of discovery, motions, orders, expert reports, and mediation, the parties were divorced on February 11, 2010. At that time, the judgment of divorce was from bed and board (JOD) and incorporated the parties' property settlement agreement (PSA). On June 11, 2010, the JOD was converted to an absolute divorce.
Pursuant to the PSA, $200,000 was determined to be Robert's annual earned income; $25,000 in earned income was imputed to Pamela for the first three years, and $50,000 was imputed to her thereafter. The parties agreed that Robert would pay limited-duration alimony and child support. Alimony was set at $57,750 per year for three years and then $50,000 per year for seven years. The parties also agreed that, if Robert earned between $230,000 and $275,000 in a given year, the alimony payments would increase. Child support was initially set at approximately $1040 per month. The parties agreed that if Robert's income exceeded $200,000 in any given year, the child support payments would be recalculated.
This amount is consistent with Robert's annual income over the years prior to divorce, which ranged from $156,150 in 2005 to $236,525 in 2007. In 2008, he reported income on his W-2 of $494,000, but the increase was due to a substantial stock distribution resulting from his employer's merger with another company. Robert's projected 2010 income was a salary of $150,000 plus a bonus of $50,000.
Further, the parties agreed to the equitable distribution of their property. Each would have an opportunity to buy out the other's interest in the marital home, which was valued at $825,000 and encumbered by a mortgage and two home-equity lines of credit. Expert fees were paid out of the home-equity line of credit; Robert was responsible for paying two-thirds of this debt. The consent judgment resolving the custody and parenting time issues was incorporated by reference into the PSA. However, Pamela and Robert did not agree about the payment of attorneys' fees. They merely agreed in the PSA to submit certifications of services to the Family Part judge responsible for their divorce, "who shall determine the issue."
In the subsequent certifications in support of their respective applications for fees, both parties and their attorneys asserted that the other party engaged in bad faith and harassment, which resulted in driving up the costs of counsel and expert fees. Pamela urged that Robert delayed their divorce and drove up legal fees with futile attempts to reconcile and a refusal to acknowledge or deal with his alcohol use and his gambling. Pamela claimed that Robert's bad-faith conduct included baseless custody claims; failure to comply with the recommendations of substance-abuse and custody experts; his refusal to settle the custody and parenting-time issues; failure to provide financial information, particularly his 2008 income; deficient responses to discovery requests; and evasion regarding his deposition.
Robert disputed Pamela's claims and argued that she took "unreasonable" positions regarding his income. He claimed that Pamela filed a frivolous motion, which was returnable a week before the trial date, because the judge denied most of the relief she sought. Robert disputed that he made "bogus custody claims" as the final custody arrangement was "similar to that which [he] had requested." Robert and his counsel denied refusing to cooperate with Pamela and her counsel regarding Robert's deposition and contended that Pamela's counsel sent an attorney to depose Robert who was unfamiliar with the case.This resulted in a failure to address substantive issues and the need for a second deposition. Robert and his counsel also contended that Pamela engaged in excessive and needless discovery, including seeking responses to multiple sets of interrogatories and 362 requests for admissions as well as serving numerous subpoenas.
Pamela's counsel ultimately did not bill her for the first deposition while Robert incurred more legal costs.
The judge did not hold a hearing but rendered his decision after reviewing the record and the parties' submissions, evaluating all nine factors under Rule 5:3-5(c). He found that, in addition to the income imputed to the parties pursuant to the PSA, Pamela had total gross assets of $1,178,453 with a net worth subject to equitable distribution of $481,298. Robert had total gross assets of $184,911 with a net worth subject to equitable distribution of -$298,064. He further noted that "these figures do not include the value of the [marital] residence or any personal property, which, if included, would substantially increase [Robert's] assets and net worth." Based on these figures, the judge found that both parties had "the ability to pay their own fees or to contribute to the fees of the other party."
The judge placed the most weight on the parties' unreasonableness and bad faith during the divorce proceedings. He found that "[a]fter reviewing the in-depth filing of incidents allegedly demonstrating bad faith by both parties, the [c]ourt cannot find that one party wholly engaged in good faith while the other party did not." He found that the final custody agreement demonstrated that Robert's initial 50/50 custody request was not "bogus," as Pamela initially contended.
As to discovery, he found that
both parties were entirely and mutually unable to communicate with [one] another, including, but not limited to, scheduling, disclosures of income, and payments of
experts. As a result, discovery in this matter became a slow, drawn-out process resulting in mounting fees for both parties that were unnecessary. Bad faith was exhibited by both parties during the course of discovery at various points. However, the [c]ourt acknowledges that the parties settled the matter on the date of trial demonstrating the parties' attempt to communicate with one another.
Next, the judge found that both parties "incurred extremely high fees." Pamela's fees and costs amounted to $129,890.68 with $96,607.26 outstanding; Robert's amounted to $73,402.61 with $43,837.08 outstanding. No counsel fees had been awarded previously. The judge found that the parties' ultimate cooperation prevented trial, that Pamela's motion regarding discovery had been resolved by a consent order, and that the attorneys' billing rates and costs were reasonable. However, he found that "the amount of time spent in litigation of this matter was excessive due to the parties' failure to communicate," with Pamela incurring about $60,000 more in fees than Robert. He concluded:
The [c]ourt gives great weight to the fact that both parties have sufficient assets to pay their attorneys. While both parties argue that the other has engaged in bad[]faith, the [c]ourt finds both parties to have engaged in bad faith at different points of the proceedings. The [c]ourt also cannot fail to acknowledge that the parties did ultimately settle the matter. While there may [have] been miscommunication between the parties prior to trial, theThis appeal followed.
parties were able to cooperate and settle on the day trial was to begin. Since both parties engaged in bad faith and the parties ultimately settled the matter, the [c]ourt does not find an award of attorneys' fees to be appropriate in this case. Accordingly, [Pamela's] motion for attorneys' fees is denied. [Robert's] cross-motion for attorneys' fees is also denied.
II.
After considering the arguments presented by the parties, we remanded this matter for further findings of fact with respect to "the discrete acts of each party on which [the judge] based his conclusion that both acted in bad faith." Donfield v. Donfield, No. A-5764-09 (App. Div. Feb. 14, 2011) (slip op. at 4). The judge complied with our mandate on March 14, 2011, and the matter was subsequently resubmitted to us.
Specifically, the judge found that "[Pamela] constantly and consistently referred to [Robert's] claim for parenting time as 'bogus' . . . and refused to agree to a 50/50, or even [the] 60/40 parenting time allotment proposed by [Robert]." She adhered to this claim even after Dr. Wolf-Mehlman opined that one of the reasons for Pamela's position, Robert's gambling, had no support in the literature as impacting on parenting, although the judge noted that Robert's alcohol use, the other basis for Pamela's position, "had some merit." It was not until the eve of trial that Pamela agreed to a 64/36 parenting-time split, which was "substantially similar to the 60/40 parenting time plan proffered by [Robert] early in the litigation." The judge found that Pamela "prolonged litigation on the issue of parenting time, even after receiving the recommendations of the custody evaluator [who] adopted the [c]ourt mediator's parenting time plan." This led the judge to find that Pamela "took an unreasonable position and acted in bad faith."
The judge also found that Pamela took an unreasonable position with respect to Robert's income. He based this conclusion on the fact that Robert is a W-2 wage earner, whose income was $156,150 in 2005; $216,910 in 2006; and $236,525 in 2007. However, in 2008 his income soared to $494,000 because he received a $220,000 stock distribution on a one-time basis as a result of a merger. "Nonetheless, [Pamela] took the unreasonable position that the one-time only gross income of $494,000 should be included when averaging [Robert's] income for the purposes of determining alimony and child support." This precluded meaningful settlement negotiations. Moreover, "[Pamela] also took the position that [Robert] was receiving significant 'cash' income from gambling, yet failed to substantiate the same." The judge found these two positions of Pamela were "indicative of bad faith."
The judge also found that certain discovery violations by Robert "were made in bad faith and made with an intent to prolong the prosecution of the marital action." These were his failure to comply with reasonable discovery requests, such as refusing to disclose his 2008 income, evasive behavior in scheduling his deposition and imposing unreasonable constraints on it, and inadequate responses to discovery and failures to respond. In conclusion, the judge "found that both [p]arties exhibited bad faith throughout the pendency of the marital action," leading him to deny the cross-applications for counsel fees.
We then permitted the parties to submit supplemental briefs addressing the judge's further fact-findings respecting their bad-faith conduct during the divorce proceedings, and this matter was resubmitted to us thereafter. Pamela raises the following issues for our consideration, as amended by her supplemental brief.
Pamela initially argued that the judge "seemingly ignored the extent of [Robert's] misconduct and failed to make findings of fact as to any alleged bad faith by [her]" when concluding that both parties engaged in "bad faith" conduct. She provided "an illustrative list" of Robert's misconduct, and asserted that "the trial judge made bald, conclusory statements that [she] acted in bad faith and the general comments regarding bad faith conduct all related to [Robert's] uncontroverted conduct."
Robert countered that the judge's denial of fees was not an abuse of discretion as he properly applied Rule 5:3-5(c) and provided an analysis of all factors. He argued that the judge's findings are supported by the record because "the examples of bad faith conduct set forth in the trial court decision did not relate only to [him]." Even if one party had arguably engaged in more bad faith than the other, he urged that it was within the judge's discretion to deny fees to both sides, particularly since he found that both could afford to pay their own fees.
In her reply brief, Pamela urged that Robert "does not deny that the proper way for the trial court to resolve contrasting factual allegations in competing certifications is through a plenary hearing," and requested reversal and remand for same.
In Pamela's supplemental brief, she now urges that the judge continued to "ignore[] substantial portions of the record and the overriding theme in this case that [Robert] did not want to be divorced from [her] and did whatever it took to prolong the proceedings before settling on the day scheduled for trial." She also contends that the supplemental findings were not supported by the record or were disputed in the attorneys' certifications. She contends that Robert would not agree to abide by Dr. Wolf-Mehlman's recommendations until February 1, 2010, thus prolonging the litigation, and that he ultimately did agree to have all of his 2008 income taken into consideration because he agreed to a provision allowing additional alimony if his income exceeded a certain sum.
Robert responds that Pamela's claim that it was he that would not agree to Dr. Wolf-Mehlman's recommendations until February 1, 2010, "is absolutely false" because he stated from the beginning that he would abide by her recommendations, although he disputed that he was alcohol dependent, and this agreement was documented during his September 17, 2009, deposition and in his January 7, 2010, certification. He contends that this falsity is further evidence of Pamela's bad faith and that the record "amply supports" the judge's findings. He also points to evidence demonstrating that the arguments Pamela advances to refute the finding of bad faith on her part respecting his 2008 income are also factually false because the provision respecting additional alimony caps his income at his 2008 income minus the stock distribution.
III.
Appellate review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); accord Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Trial courts that "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008). "Where the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks omitted). However, even in this latter instance, we will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).
The Supreme Court has observed that matrimonial courts possess special expertise and experience in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), we will not "second guess [a Family Part judge's factual] findings and the exercise of [his or her] sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
Pursuant to Rule 5:3-5(c), which pertains to the award of attorneys' fees in family actions,
the court in its discretion may make an allowance . . . to be paid by any party to the action, including, if deemed to be just, any party successful in the action . . . . In determining the amount of the fee award, the court should consider . . . 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; (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.
"The trial judge 'has broad discretion as to when, whether, and under what circumstances' attorney's fees may be awarded." Elkin v. Sabo, 310 N.J. Super. 462, 474-75 (App. Div. 1998) (quoting Enright v. Lubow, 215 N.J. Super. 306, 313-14 (App. Div.), certif. denied, 108 N.J. 193 (1987)). Thus, "'fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). This occurs when a decision was "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
We have carefully reviewed the record in this matter, as well as the parties' written and oral arguments, and affirm substantially for the reasons expressed by the Family Part judge in his June 23, 2010 written statement of reasons and his written supplemental opinion dated March 14, 2011. The findings and conclusions of the judge are supported by substantial, credible evidence in the record, Rova Farms, supra, 65 N.J, at 484, and he carefully considered each and every factor required by Rule 5:3-5(c). We agree with his assessment of the parties' respective bad faith in the conduct of this litigation, but also note that even had Pamela acted in complete good faith, that alone would not justify an award of counsel fees to her in light of the parties' respective financial positions and all of the other factors the judge so carefully considered.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION