Opinion
DOCKET NO. A-0706-12T1
06-20-2014
NANCY Z. HOMA, Plaintiff-Respondent, v. DAVID J. HOMA, Defendant-Appellant.
Damiano Marcello Fracasso, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Accurso.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-0257-08.
Damiano Marcello Fracasso, attorney for appellant.
Respondent has not filed a brief. PER CURIAM
Defendant David J. Homa appeals the Family Part's September 25, 2012 order awarding counsel fees and costs in the amount of $16,248.65 to plaintiff Nancy Z. Homa. We affirm.
The parties were divorced in November 2008. They resolved their custody, support, and other financial issues through a property settlement agreement attached to the judgment of divorce. They have two children, born in 1992 and 1994.
The appeal arises out of defendant's November 22, 2010 motion to reduce his child support obligation and plaintiff's January 4, 2011 cross-motion. Following discovery and an evidentiary hearing, the motion judge entered an order on August 1, 2012, increasing defendant's child support obligation from $214 per week to $268 per week, retroactive to the date plaintiff filed her cross-motion. The order was supported by a fifteen-page, detailed statement of reasons.
In the statement of reasons, the judge described defendant's application to reduce child support as "specious" and noted that he had warned defendant several times that his application was more likely to result in an increase in support rather than a reduction. He characterized the motion as "a waste of time for the parties and their attorneys," as well as a "waste of judicial resources." The judge also found that defendant's pursuit of the issue following a January 2011 order "constitute[d] bad faith." Consequently, the judge stated that he would grant plaintiff's request for counsel fees. The August order instructed plaintiff to submit itemized legal bills, and gave defendant the opportunity to respond.
In a supplemental order dated September 25, the judge awarded the $16,248.65 in fees and costs. The supplemental order was accompanied by a second statement of reasons, in which the judge explained that he was not awarding any fees for the period prior to the January 2011 order, and also explained other adjustments from the amount sought by plaintiff. This appeal followed.
Defendant did not address the merits of the judge's child support determination on appeal. His argument was confined to the award of counsel fees and costs.
On appeal, defendant argues that (1) the motion judge failed to weigh the factors governing an award of counsel fees in Family Part cases, (2) the judge's finding of bad faith is not supported by the record, and (3) the judge deprived him of an opportunity to demonstrate his good faith in prosecuting his claim.
We accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). "'[J]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
An allowance for counsel fees is permitted in a Family Part action, and governed by Rule 5:3-5(c) and Rule 4:42-9. To determine whether and to what extent such an award is appropriate, 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 Williams v. Williams, 59 N.J. 229, 233 (1971).
[R. 5:3-5(c).]
The assessment of counsel fees is discretionary. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). "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)).
Having reviewed the issues raised on appeal in light of the record before us and the applicable law, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Although the judge did not specifically list the factors for an award of fees outlined above, our reading of the judge's written explanation for his decision convinces us that they were considered by him in reaching his decision and that the facts supporting those criteria are sufficiently discussed in his statements of reasons. We are also satisfied that the judge's finding of bad faith is sufficiently supported in the record and that defendant was not deprived of an opportunity to present his side of that issue.
Consequently, we affirm essentially for the reasons stated by Judge James A. Farber in his thorough and thoughtful August 1 and September 25, 2012 statements of reasons.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION