Opinion
DOCKET NO. A-2467-12T3
03-18-2014
LISA NAKASHIAN, Plaintiff-Appellant, v. JOHN NAKASHIAN, Defendant-Respondent.
Christopher Leon Garibian argued the cause for appellant (Garibian PC, attorneys; Mr. Garibian and Gregory A. Pasler, on the briefs). James McGlew II argued the cause for respondent (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; Mr. McGlew, of counsel and on the brief; Silvia F. Courtney, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0967-11.
Christopher Leon Garibian argued the cause for appellant (Garibian PC, attorneys; Mr. Garibian and Gregory A. Pasler, on the briefs).
James McGlew II argued the cause for respondent (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; Mr. McGlew, of counsel and on the brief; Silvia F. Courtney, on the brief). PER CURIAM
Plaintiff Lisa Nakashian appeals from the January 7, 2013 final judgment of divorce (FJOD), and from the January 25, 2013 order awarding attorney's fees to defendant John Nakashian. We affirm.
We derive the following facts from the record. The parties were married in 1989, and have three children. Plaintiff filed a complaint for divorce in December 2010. After two adjournments, a peremptory trial date was set for September 5, 2012. The parties and their attorneys appeared the morning of September 5 and engaged in settlement discussions. At approximately 3:00 p.m., the attorneys represented to Judge Thomas J. Walsh that the matter was settled. Because the judge was adjourning early that day, he offered the attorneys the opportunity to place the settlement on the record before the presiding Family Part judge. The attorneys declined, stating instead that they would reduce the settlement to writing and return in a few weeks to place it on the record. Based on the attorneys' representation, the judge released the parties without a new trial date and instructed them to advise him when they would return to place the settlement on the record.
Two attorneys from the same law firm appeared for plaintiff.
Thereafter, defendant's attorney sent plaintiff's attorney a draft interspousal property settlement agreement (ISA). Defendant's attorney followed up numerous times, but plaintiff did not sign the ISA. Instead, in an October 4, 2012 letter to Judge Walsh, plaintiff's attorneys denied there was a settlement and claimed that "only certain issues were discussed and consented to by the parties" on September 5, 2012. Pursuant to the judge's order, the parties appeared on October 11, 2012. Plaintiff's attorneys denied having represented to the judge that the matter was settled; rather, they said there was only "an agreement in fact." The judge scheduled a Harrington hearing to resolve the issue.
Harrington v. Harrington, 281 N.J. Super. 39 (App. Div. 1995).
Following a two-day hearing, in a January 7, 2013 written opinion, Judge Walsh made credibility determinations and factual findings, and concluded as follows:
Judge Walsh found credible defendant's and his attorney's testimony, and found not credible plaintiff's and her attorney's testimony.
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The evidence shows clearly and compellingly that the parties reached an agreement as to all major issues, advised the court of such, and asked to return once a signed settlement agreement was executed. That agreement included all issues of equitable distribution, alimony, and an agreement that child support would be subject to the child support guidelines. The agreement, as is often the case, was subject to the parties 'running' the child support guidelines numbers based on the settled alimony number, as well as the fact that defendant would be paying health insurance. Once the health insurance was factored in, as well as theThe judge determined that the ISA reflected the terms of the settlement, except for three provisions, which the judge removed. The judge enforced the settlement and incorporated the revised ISA into the FJOD.
social security benefit being paid for the children, the guidelines indicated there would be no further child support benefit. The court is convinced that this fact caused the plaintiff to 'balk' and renege on the settlement reached on September 5th.
In a January 25, 2013 order and written opinion, Judge Walsh also awarded defendant attorney's fees in the amount of $12,760. In making this determination, the judge considered the factors set forth in Rule 5:3-5(c), and concluded that
there was overwhelming bad faith on the part of plaintiff and her counsel in reneging on the agreement reached in court. But for their incredible assertions that no agreement had been reached, the Harrington hearing would not have been necessary. Accordingly, the court grants the application for counsel fees incurred by defendant from the date of October 5, 2012 going forward. . . . In making this award, the court is aware that there is an economic disparity between the parties in terms of income but that they have each received their respective share of the equitable distribution of the marital home. The bad faith of plaintiff overrides an economic disparity.
On appeal, plaintiff contends Judge Walsh's finding that there was a settlement and his award of counsel fees were not supported by adequate, substantial and credible evidence. Plaintiff also contends the judge abused his discretion by precluding her attorney from questioning defendant and his attorney about defendant's business. These contentions lack merit.
Our review of a trial judge's factual findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Id. at 413. Deference is particularly important where, such as here, "'the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We intervene only when convinced that the trial judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, "a trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995) ).
In addition, an award of attorney's fees in matrimonial matters is discretionary. R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). We will not disturb a counsel fee award absent a showing of "an abuse of discretion involving a clear error in judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd, 208 N.J. 409 (2011).
We conclude that plaintiff's challenges to Judge Walsh's factual findings are unavailing as we discern that adequate, substantial, and credible evidence supports the judge's determinations on the settlement and attorney's fee award. Cesare, supra, 154 N.J. at 412. Additionally, the judge expressly articulated credibility findings supporting the determinations made. These findings are well supported by the record, and we have no occasion to disturb them. Further, the judge correctly applied the law, concluding the matter had settled on September 5, 2012. We are also satisfied the judge considered the appropriate factors for awarding counsel fees and provided a reasonable basis for his factual findings.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION