Opinion
DOCKET NO. A-0578-12T4
09-04-2014
MARITA LIND, Plaintiff-Respondent, v. THOMAS LIND, Defendant-Appellant.
D. Ryan Nussey argued the cause for appellant (Klineburger and Nussey, attorneys; Mr. Nussey, on the briefs). Katrina Vitale argued the cause for respondent (Law Office of Katrina Vitale, LLC, attorneys; Katrina Vital, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0419-09. D. Ryan Nussey argued the cause for appellant (Klineburger and Nussey, attorneys; Mr. Nussey, on the briefs). Katrina Vitale argued the cause for respondent (Law Office of Katrina Vitale, LLC, attorneys; Katrina Vital, on the brief). PER CURIAM
In this matrimonial action, Defendant Thomas Lind appeals from that part of the August 28, 2012 Family Part post-judgment order that required him to indemnify and reimburse plaintiff Marita Lind for monies she paid to satisfy his financial obligations on the former marital home, and to pay attorneys' fees to plaintiff's matrimonial and foreclosure lawyers. Because we conclude that defendant's financial obligation is clear and unequivocal, we affirm the order for indemnification and reimbursement of costs to settle the foreclosure. We also affirm the award of attorney's fees to plaintiff's matrimonial attorney. We vacate that portion of the order awarding attorney's fees to the foreclosure lawyer, and remand for a thorough analysis under Rule 5:3-5(c).
By way of background, plaintiff and defendant were married on January 4, 1992. On September 15, 2010, the trial court entered a final judgment of divorce incorporating partial judgment orders from July 22, and August 10, 2010. An amended final judgment of divorce entered on October 21, 2010, incorporated a custody/parenting time order issued on September 28, 2010.
The relevant provisions of the August 10, 2010 judgment pertain to the disposition of the couple's marital home. The parties had initially financed the home through a mortgage held by Chase Bank. They later took out a second mortgage on the home through Wilmington Trust Company (WTC). In August 2005, M&T Bank (M&T), the successor in interest to WTC, extended a line of credit, secured by the second mortgage, to the parties for $107,800. In September 2009, after the parties separated, the trial court ordered defendant, who continued to live in the marital home, to maintain all recurring costs pending the sale of the property, including the mortgages and the home equity loan. Defendant defaulted on the loan payments and M&T accelerated the amount due on the line of credit.
By April 2010, the marital home had been listed for sale. With respect to the proceeds or liability associated with the sale of the home, the August 10, 2010 judgment provided:
The parties agree that any sale proceeds or liability resulting from the sale of the former marital home shall be equally divided. The division shall take place as though [defendant] made the payments in relation to the home pursuant to the pendente lite order addressing the issue. [Plaintiff] will not be put in a better or worse position as a result of [defendant] failing to make the payments concerning the house.
On January 24, 2011, M&T filed a complaint against plaintiff and defendant to recover the sum due under the line of credit (M&T action). In addition, Chase Bank filed a foreclosure action on the first mortgage (foreclosure action). On March 14, and May 13, 2011, the trial judge enforced the September 2009 and August 2010 orders, and required defendant to maintain and immediately bring current the mortgage in connection with the parties' former marital home. The court ordered defendant to pay plaintiff attorney's fees for Katrina Vitale, her matrimonial lawyer.
The record indicates that by June 15, 2012, defendant owed $114,095.23 in overdue payments on the loan.
On November 15, 2011, defendant filed for bankruptcy. As a result, the M&T and foreclosure actions were stayed as to him. Plaintiff, represented by Lewis Adler, actively defended against the actions. With foreclosure pending, plaintiff filed a third post-judgment enforcement motion on March 20, 2012, seeking (1) enforcement of the prior orders for defendant to pay the outstanding mortgages, and (2) payment for Adler's and Vitale's legal services. Defendant filed a cross-motion in which he sought to be relieved of the obligation to pay the mortgage.
On April 19, 2012, the trial court heard oral argument. The trial judge again enforced the August 2010 judgment and denied defendant's motion to be relieved of his mortgage obligations. In the June 22, 2012 order on this motion, the judge ordered defendant to hold plaintiff harmless and indemnify her regarding any costs associated with the home. He also found defendant had an obligation to pay attorney's fees for Adler's services based on that indemnification. However, the judge held in abeyance the determination on the amount of fees to be awarded until receipt of a more detailed certification of Adler's services. The judge also reserved decision on Vitale's fees in light of the impending sale of the home.
In the weeks following that motion hearing, Vitale sent several letters to defendant's attorney seeking defendant's cooperation regarding a proposal from M&T offering to settle its lawsuit. Defendant failed to respond to any of Vitale's letters. On July 13, 2012, plaintiff settled the litigation with M&T for $15,000, borrowing the funds to satisfy the settlement from her ailing father. Defendant was not a party to the settlement.
On July 16, 2012, plaintiff filed another enforcement motion, seeking indemnification from defendant for the $15,000 settlement, as well as Adler's attorneys' fees. Plaintiff also sought additional counsel fees in connection with the enforcement motions. At oral argument on August 28, 2012, defendant argued that he did not owe any money because plaintiff received the $15,000 from her father as a gift. He further argued that because he was not a party to the settlement and did not benefit from it, he was not responsible for any portion of the sum. The court rejected defendant's arguments, and found plaintiff was entitled to relief based on defendant's obligation to indemnify her and his repeated failure to comply with prior enforcement orders. The court ordered defendant to repay plaintiff $15,000 at the rate of $2000 per month. As to the issue of counsel fees, the court noted that Adler's efforts to settle the M&T litigation did in fact protect defendant's interests, as he was relieved of his obligation to pay the full amount due under the line of credit. Based upon a certification of services submitted by Adler and Vitale, the court found all of their fees were reasonable and ordered defendant to pay $5000 to Adler and $7500 to Vitale. The court issued an order memorializing its oral decision that same day.
On appeal, defendant challenges the court's order requiring him to reimburse plaintiff for the $15,000 she expended to settle the litigation with M&T. Defendant also challenges the award of attorneys' fees. Following our review of the record and arguments of counsel, we conclude that defendant's challenge to his obligation to hold plaintiff harmless and to indemnify her for the $15,000 she expended to settle the litigation is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As to that issue, we affirm the order requiring the incremental repayment of $15,000 for substantially the reasons set forth in the trial judge's August 28, 2012 oral opinion. We will address the issue of counsel fees in turn.
I.
The Family Part's factual findings are binding on appeal when "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Such findings will only be disturbed if "they are so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Because the Family Part has special expertise in family matters, we defer to its fact-finding on appeal. Cesare, supra, 154 N.J. at 413. However, the Family Part's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
The decision to award counsel fees to the prevailing party in a family action is left to the trial court's sound discretion. Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000). An award of counsel fees will only be disturbed "on the 'rarest occasion,' and then only because of a clear abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). 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." Ibid. (internal quotation marks omitted).
II.
Defendant contends the trial court abused its discretion in awarding plaintiff counsel fees and costs in the amount of $5000 for Adler and $7500 to Vitale without conducting the applicable analysis under Rule 5:3-5(c). In addition, defendant contends the court failed to state its reason for the award.
A.
We begin by reviewing plaintiff's request for Vitale's counsel's fees, which reached the court through post-judgment enforcement motions. We are satisfied the court did not err in awarding counsel fees to plaintiff's matrimonial attorney.
"An allowance for counsel fees is permitted to any party accorded relief following the filing of a motion in aid of litigant's rights, R. 1:10-3, or to any party in a divorce action, R. 5:3-5(c), subject to the provisions of Rule 4:42-9." Barr, supra, 418 N.J. Super. at 46. Under Rule 1:10-3, in an application to enforce litigants' rights, "[t]he court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief[.]" R. 1:10-3.
We conclude that, as a matter of law, an award of counsel fees was properly authorized here under Rule 1:10-3, in light of defendant's repeated failure to comply with the court orders. Here, plaintiff moved to enforce her rights under prior orders and had previously been awarded counsel's fees for those efforts. In the most recent motion, plaintiff again sought enforcement of the July 2012 order which addressed many issues regarding her children and parenting time matters, as well as issues pertaining to the home. The trial judge's finding that defendant had not complied with the court's orders is supported by substantial, credible evidence, and we will not disturb that assessment. Rova Farms Resort, Inc., supra, 65 N.J. at 483-84.
We are also satisfied the court appropriately exercised his discretion in setting the amount of the award. The fees were reasonably incurred in efforts to secure defendant's compliance with court orders mandating his payment of the expenses for the home. The judge recognized the counsel's efforts involved other family matters, but did not obligate defendant to pay Vitale for fees that were not associated with enforcement of litigant's rights regarding the home foreclosure matters. In that respect, the court awarded only a portion of her total fee of $11,370, ordering defendant to pay Vitale $7500. On the whole, the fee award of $7500 was fair, and we discern no basis to disturb that result.
B.
We review defendant's challenge to attorney's fees for Adler's legal services in a different light. First, defendant contends the judge erred by interpreting the indemnification provision that he pay "costs" to include plaintiff's legal expenses. We reject this contention.
In plaintiff's certification, filed in support of her July 2012 enforcement motion, she asserted defendant's obligation to maintain the mortgage and carrying costs arose from the September 11, 2009 and August 10, 2010 court orders. The September 11, 2009 order granted plaintiff's motion "requiring [defendant] to maintain all recurring expenses in connection with the former marital home pending the sale, including the mortgages, taxes, and homeowners insurance." The August 2010 reaffirmed defendant's obligation and added that plaintiff "will not be put in a better or worse position as a result of [defendant's] failing to make the payments concerning the house." Further, the June 22, 2012 order recognized and enforced these prior orders regarding payment of the mortgage and costs, and mandated that defendant "hold [p]laintiff harmless and indemnify her therefrom."
As we review the record, there is no doubt that plaintiff incurred the legal expenses because of defendant's failure to satisfy his financial obligations to the marital home. Unquestionably, plaintiff was "put in a worse position" as a result of defendant's dilatory conduct. Thus, we agree with the trial court judge's determination that defendant can be held responsible for these costs. The obligation to "hold plaintiff harmless and to indemnify her" can have no alternative meaning than to include the monies plaintiff expended to settle the litigation and the legal expenses incurred for doing so.
Likewise, viewing the record as a whole, we find no abuse of discretion by the motion judge in awarding plaintiff attorney's fees for Adler's services. The issue was first considered by the court at oral argument in April 2012. At that time, the judge recognized Adler represented plaintiff in her efforts to preserve the marital home from foreclosure. The judge deferred ruling on the award until he received a more detailed certification of services sufficient to discern the services rendered.
On our review of the August 2012 order, we agree with defendant that the judge did not conduct the requisite analysis under Rule 5:3-5(c) for determining the amount to be awarded. In considering whether and how much to award, the judge should consider the following nine factors: (1) the parties' financial circumstances; (2) the parties' ability to pay their own fees or contribute to the other party's fees; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the parties' fees; (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; (9) and any other factor bearing on the fairness of an award. R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233-34 (1971).
The record demonstrates that Adler filed a certification of services asserting total fees and costs amounting to $12,139.96, yet the judge summarily awarded $5,000 without any explanation for that amount. The judge's award is therefore "unsupported by adequate findings on issues critical to the application of the law." Gordon v. Rozenwald, 3 80 N.J. Super. 55, 79 (App. Div. 2005). In light of the foregoing, we vacate this provision of the order and remand for the judge to conduct the necessary analysis under Rule 5:3-5(c) to determine the amount the fees to be awarded.
Affirmed in part, vacated and remanded in part. 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