Opinion
DOCKET NO. A-2538-14T4
05-13-2016
MARC FRIEDRICH, Plaintiff-Respondent, v. ELEXIS FRIEDRICH, Defendant-Appellant.
Kenneth T. Gallo argued the cause for appellant (Law Offices of Peter C. Humblias LLC, attorneys; Mr. Gallo and Peter C. Humblias, of counsel and on the briefs). Marc Friedrich, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1549-13. Kenneth T. Gallo argued the cause for appellant (Law Offices of Peter C. Humblias LLC, attorneys; Mr. Gallo and Peter C. Humblias, of counsel and on the briefs). Marc Friedrich, respondent, argued the cause pro se. PER CURIAM
Plaintiff Marc Friedrich and defendant Elexis Friedrich were married in 2002 and have three children. Their marriage ended with the entry of an October 21, 2014 divorce judgment that incorporated a property settlement agreement (PSA). The PSA recited, among other things, that it constituted the parties' "entire understanding," and that there were "no representations, warranties, covenants, or undertakings other than those set forth" in the PSA. Notably, the PSA contained no provision for the payment of counsel fees, other than future fees that might be incurred should either party fail to abide by its terms.
On November 5, 2014, defense counsel filed an application seeking an award of counsel fees against plaintiff for legal services rendered on behalf of defendant during the divorce proceedings. The application was accompanied by defendant's Case Information Statement (CIS) dated October 29, 2014, and counsel's affidavit of services (AOS). In his AOS, defense counsel averred that defendant's outstanding legal fees and costs totaled $82,061.95, after receipt of fee awards totaling $20,000 that plaintiff had been ordered to pay defendant pendente lite.
Plaintiff filed a lengthy certification opposing the counsel fee application. Defendant also submitted a certification dated November 16, 2014, objecting to her counsel's fee request. Defendant explained that she had previously been employed by her attorney and that he had agreed she could adjust her work hours to coincide with her visitation schedule with the children. However, he then terminated her employment, leaving her without an income. Defendant further certified that the time counsel claimed to have worked on her case was exaggerated; that he had previously advised her not to accept any settlement offers; and that neither she nor plaintiff "[could] afford this legal bill without it being a huge detriment to our children."
On December 12, 2014, Judge Terry Bottinelli denied the fee application in a comprehensive oral opinion. The judge began by reviewing the factual and procedural background of the case, which primarily involved issues of custody and parenting time. He detailed defendant's "irresponsible" actions "with regard to the children," which "created" the "situation" that led plaintiff to file the action "to protect the children." The judge recognized that the parties had no substantial assets, and that:
In fact, post[-]divorce, because of the monetary situation[,] the parties continued to live together with their three children in a two-bedroom apartment. They cannot, according to their certifications, . . . afford to move out of the two-bedroom apartment. Neither one of them has sufficient funds to purchase or lease a vehicle for their use.
Judge Bottinelli next proceeded to analyze the factors pertinent to fee awards set forth in Rule 5:3-5(c). Those factors include:
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;
4. the extent of the fees incurred by both parties;
5. any fees previously paid to counsel by each party;
6. any fees previously awarded;
7. the results obtained;
8. the degree to which fees were incurred to enforce existing orders or to compel discovery; and
9. any other factors bearing on the fairness of an award.
[R. 5:3-5(c).]
With respect to the first and second factors, Judge Bottinelli determined that plaintiff earned a gross salary of $116,000, from which he was required to pay defendant $18,000 per year in alimony. Defendant earned $19,000, and had a side job as a bartender. The judge found that "[t]hey are five people living, basically, on one salary of the father . . . together with extra help" that defendant contributed, which "is not a lot of money for [a family of five] living in Bergen County." The judge concluded that plaintiff was not in a position to contribute to defendant's legal fees.
As to factor three, Judge Bottinelli, who took over the case in summer 2013 after the previous judge retired, noted that applications had been made by defendant with respect to visitation that arose from problems associated with her substance abuse. The judge expressly found that plaintiff had not acted in bad faith, which "is a very substantial factor when we talk about awarding [] counsel fees."
Regarding factors four through six, plaintiff paid $10,000 to his attorney before he became self-represented, while defendant's fees and costs totaled $102,000. Included in that sum was $20,000 in fees previously awarded to defendant during the pendency of the litigation.
With respect to factor seven, the results obtained, the judge found that:
once the custody issue was resolved and parenting time was resolved, the rest of [the] issues fell into place. They were not, particularly, complex. There were [no] . . . assets to divide. It was not a question of whether or not there would be spousal support. This would be a limited duration spousal support due to the length of the marriage.
The documents that were submitted demonstrate that the spousal support offered back in 2013 was not too far off from what
[was] ultimately accepted in October [] 2014.
Regarding factor eight, the judge noted that at "the beginning of the case" defendant made "multiple applications to see her children" that were precipitated by her previous "lack of good judgment." As to factor nine, the fairness of the award, the judge concluded:
This is a case in which the amounts of money that were billed for this of $102,000 for a relatively simple divorce, in which there are three minor children, are huge. The amount of the fees generated - - I'm not sure why they got that far. Except to say that there were multiple applications made which did not result in any real benefit to the client.
There is also taking into consideration that [defendant] was an employee of [her attorney's] office. And there was work that was done. This is a situation which the fees greatly exceed the ability of these parties to contribute.
It is the request of [] defendant that [plaintiff] contribute to the fees. They've already [] been paid $20,000. That $20,000 is long gone. There is not, in my view, an ability to contribute.
The court entered a memorializing order denying defendant's counsel fee application on December 12, 2014. Defense counsel timely moved for reconsideration, which the court denied on January 26, 2015. This appeal followed.
In appealing these orders, defendant argues that the trial court improperly limited defendant's submissions to the AOS and CIS, while allowing plaintiff to file more detailed factual certifications. Defendant also argues that the trial court erred in applying the Rule 5:3-5(c) factors and an incorrect standard for reconsideration. Finally, defendant urges that we exercise original jurisdiction and enter an appropriate counsel fee award.
"An award of counsel fees in a matrimonial action is discretionary." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd o.b., 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. An abuse of discretion occurs when "the '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) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
After close examination of the record on appeal in light of defendant's contentions and the applicable law, we find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Contrary to defendant's argument, the judge recognized the disparity between the parties' respective incomes but concluded, upon balancing all the other pertinent factors, that a counsel fee award was not justified. We find no record support for the contention that defendant was unfairly limited in developing the facts pertinent to a fee award in her initial submission. Even if it may have been more prudent to permit defendant to file a reply to plaintiff's opposition, we question what reply could reasonably be expected after defendant submitted a certification joining in plaintiff's opposition to the fee application. We also question counsel's wisdom and authority in pursuing relief that his own client clearly objected to.
In sum, Judge Bottinelli fully explained his reasons for denying the application that plaintiff contribute to defendant's litigation expenses beyond the $20,000 he previously paid. We conclude the denial of additional counsel fees did not constitute an abuse of discretion, and affirm substantially for the reasons set forth by Judge Bottinelli.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION