Opinion
DOCKET NO. A-3291-12T1
05-21-2014
CARL B. GILLE, JR., Plaintiff-Appellant, v. NADINE S. GILLE, Defendant-Respondent.
Allan Weinberg argued the cause for appellant. Kevin M. Mazza argued the cause for respondent (James P. Yudes, P.C., attorneys; Mr. Mazza, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1795-09.
Allan Weinberg argued the cause for appellant.
Kevin M. Mazza argued the cause for respondent (James P. Yudes, P.C., attorneys; Mr. Mazza, on the brief). PER CURIAM
Plaintiff Carl B. Gille appeals the February 25, 2013, Family Part order denying his cross-motion: (a) to enforce litigant's rights; (b) to find defendant Nadine S. Gille in violation of litigant's rights; (c) for reimbursement of certain funds that he advanced; (d) compelling defendant to pay the outstanding balance of the final bill for a mediator totaling $14,185; (e) seeking sanctions against defendant; and (f) for attorney's fees. After our review of the record and the applicable law, we affirm for the reasons stated in Judge John R. Tassini's cogent, reasoned, and comprehensive fourteen-page decision. It is only as to the allocation of payment of the mediator fees that we add the following comments.
Briefly, by way of background, plaintiff and defendant married in 1991 and had four children. They divorced September 26, 2011, after contentious extensive pendente lite motion practice. During the marriage, plaintiff was a high wage earner who managed a hedge fund, among other business ventures. According to defendant's certification, plaintiff declared income of: $3,760,000 in 2006, $4,612,000 in 2007, $3,714,000 in 2008, and $3,226,000 in 2009. Not surprisingly, substantial assets were accumulated, including the marital residence, plaintiff's share of various business interests, motor vehicles, retirement savings, and investment accounts.
After the matter was scheduled for trial, the judge suggested that the parties attempt mediation. Mark Sobel, Esquire, was selected, and plaintiff paid a $7,500 retainer to commence the process. After protracted negotiations, the parties reached a comprehensive agreement signed on September 26, 2011, the date of the dissolution of their marriage.
Although in his brief plaintiff asserts that the parties informally agreed to equally share the cost of the mediator, no record support is provided for the claim. The judge did not specify the manner in which the mediator was to be paid, and no disposition was made in the parties' matrimonial settlement agreement.
In the February 25, 2013 order being appealed, the judge directed that the parties pay the balance due to the mediator based on their percentage of income for 2010, the last full year in which financial information was available prior to the agreement being reached. As we have said, the balance due to the mediator was $14,185, a relatively modest sum relative to the parties multi-million dollar marital estate, and to plaintiff's earnings in the years prior to the divorce. In the separation agreement, each party assumed responsibility for his or her own attorney's fees and expert fees.
We assume from our review of the record that defendant's litigation expenses were substantial, as she had to, for example, implead some of plaintiff's business interests in order to obtain discovery as to the extent of his financial interests and business holdings.
It is well-established that our review of a trial court's fact finding is limited and that, particularly in family matters, such conclusions are accorded great deference. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Indeed, because of the special role served by the family part in our system, it has "broad equitable powers . . . to accomplish substantial justice." See Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). "[T]he award of counsel fees and costs in a matrimonial action rest in the discretion of the court." Williams v. Williams, 59 N.J. 229, 233 (1971).
Certainly, in this case, the judge's allocation of payment of the mediator's fee would be considered a cost engendered by the matrimonial proceeding, review of which is governed by the abuse of discretion standard. See Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 25 (2004); Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Where a judge's reasoning is not supported by the record, we conclude that an abuse of discretion has occurred. See Best v. C&M Door Controls, Inc., 200 N.J. 348, 360-61 (2009). On the other hand, the trial court does not abuse its discretion when "there are good reasons for an appellate court to defer to the particular decision at issue." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002).
Plaintiff now contends that the trial court erred by not conducting a plenary hearing to resolve the disputed payment of the mediator's fee, however, that request was not previously made. Ordinarily, we only "consider questions or issues [] properly presented to the trial court when an opportunity for such a presentation is available." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, (1973). Since the issue was not previously raised, we will not address it.
In any event, no factual dispute would have justified a plenary hearing. Plaintiff's uncorroborated assertion that he and defendant had an oral agreement to share the mediator's fee does not suffice. Even crediting plaintiff's statement, such an oral representation made by a represented party would not justify imposition of the liability, particularly where the income earning disparity is as substantial as is the case here.
The Family Part judge also denied defendant's request that plaintiff be compelled to pay the balance due to the mediator in its entirety. His solution allocated the responsibility proportionate to the documented ability to pay based on the income earned during the full year prior to the negotiations, the year for which the most complete information regarding earnings was available.
We certainly agree with plaintiff that defendant benefited as much as he did from the mediator's services. The impact of that consideration is diminished by the disparity in earnings between the parties, and the remarkable savings accrued to them, particularly plaintiff, by an out-of-court, amicable resolution. In our view, therefore, requiring proportionate responsibility was reasonable, equitable, supported by the record, and an otherwise appropriate exercise of discretion. There were "good reasons" for the judge's decision, and accordingly, we find no abuse of discretion. See Flagg, supra, 171 N.J. at 571.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION