May 7, 2007
FATEN O. IBRAHIM, PLAINTIFF-APPELLANT,
OSAMA IBRAHIM, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Sussex County, FM-19-361-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2007
Before Judges Payne and Graves.
Plaintiff, Faten Ibrahim, and defendant, Osama Ibrahim, were divorced on July 28, 1999, following a thirty-year marriage. The judgment of divorce incorporated a property settlement agreement (PSA) that required defendant to pay alimony to plaintiff in the amount of $250 per week for four years, after which alimony would be reduced to $200 per week, and would continue at that level until defendant reached the age of sixty-five. Alimony payments would automatically terminate at that time. If defendant retired before the age of sixty-five, he was required to make application to the court for reduction or termination of his alimony obligation.
After the parties were divorced, defendant, who had assumed all of the marital debt at the time of the divorce, filed for Chapter 13 bankruptcy protection. As a result, his monthly payments on the outstanding debt were substantially reduced.*fn1
Upon learning of the bankruptcy and its effect on defendant's finances, plaintiff, who was in poor health and alleged an inability to support herself without additional assistance, sought an increase in alimony. On February 4, 2003, following a plenary hearing, a judge of the Family Part, finding changes of circumstances arising from the bankruptcy, plaintiff's ill health and her financial condition, increased defendant's alimony payments to $472 per week until the fourth anniversary of the PSA on July 14, 2003, when payments would be reduced to $422 per week, payable until plaintiff's death. The increase was made retroactive to April 2001 when plaintiff's application was filed. The court ordered that arrears of $15,456 be paid at a rate of $50 per week until the fourth anniversary of the PSA, and thereafter at a rate of $100 per week. Based upon the conclusion that defendant "did not press his position in good faith," the court awarded counsel fees to plaintiff in the amount of $12,114.25, payable at a rate of $350 per month. We affirmed the order of the Family Part judge in an unreported decision. Ibrahim v. Ibrahim, Docket No. A-3288-02T1 (App. Div. April 5, 2004), awarding additional counsel fees of $2,500, inclusive of costs, on the appeal.
In February 2004, defendant was laid off from his job as a microbiologist at Kraft Foods. He ceased alimony payments in December 2004 while under the age of sixty-five. In January 2005, defendant filed a motion to reduce or terminate his alimony obligation, which relief was denied without prejudice in orders of March 4 and 8, 2005. The court found defendant's evidence of attempts to secure new employment to have been inadequate. That decision was also affirmed by us on appeal. Ibrahim v. Ibrahim, Docket No. A-3710-04T3 (App. Div. April 17, 2006).
On August 5, 2005, a Family Part judge found that defendant was in violation of litigant's rights. On October 25, 2005, a different judge entered an order of judgment in the amount of $24,484.90 for arrears in alimony payments to October 5, 2005, and a judgment in the amount of $14,614.25 for counsel fees assessed against defendant pursuant to prior orders. The order additionally provided that it would act as a writ of execution for the purposes of executing against retirement funds of the defendant held in a Fidelity investments account, and the account was frozen pending satisfaction of the writs. Paragraph eight of the order stated that "[s]ince defendant was found in violation of litigant's rights, plaintiff's counsel shall submit an affidavit of services with a form of order for the court's consideration." On December 16, 2005, the judge entered an additional order regarding the payment of the judgments that further provided that counsel fees in an unstated amount were to be paid within an unspecified number of days and gave defendant four days to "submit opposition to counsel fees." An emergent application for a stay of the court's October 23 and December 15, 2005 orders was denied by this court on December 30, 2005.
Untimely opposition to an attorney's fee award in the form of a certification by counsel was submitted on January 16, 2006. In it, counsel claimed that counsel fees of $14,614.25 had been paid, and that, as the result of a prior payment by defendant, the amount recovered exceeded the sum owed by $3,350. Counsel additionally stated that defendant had made a good-faith effort to settle his entire alimony obligation by payment of an unspecified lump sum, but that his offer of settlement had been summarily rejected.
On January 27, 2006, plaintiff's New Jersey attorney provided the court with a certification requesting counsel fees in the amount of $5,957.50. Additionally, plaintiff sought $5,250 allegedly paid to an attorney in Illinois to locate defendant's hidden assets. An award of counsel fees to plaintiff in connection with the October 25 and December 16, 2005 motions was denied on March 7, 2006, without any statement of reasons for the decision.
It has long been settled that in awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees. Williams v. Williams, 59 N.J. 229, 233 (1971) (stating when awarding counsel fees "courts focus on several factors, including wife's need, husband's financial ability to pay and wife's good faith in instituting or defending action"); Mayer v. Mayer, 180 N.J. Super. 164, 169-70 (App. Div. 1981) (noting award of counsel fees involves critical review of nature and extent of services rendered, complexity and difficulty of issues determined, and reasonableness and necessity of time spent by counsel rendering legal services). [Mani v. Mani, 183 N.J. 70, 95 (2005) (emphasis in original).]
The record does not reflect such findings in the present case, and their absence precludes meaningful appellate review.
It bears repeating that an articulation of reasons is essential to the fair resolution of a case. The failure to perform this duty "constitutes a disservice to the litigants, the attorneys and the appellate court." [O'Brien v. O'Brien, 259 N.J. Super. 402, 407 (App. Div. 1992) (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]
See also R. 1:6-2(f); Italiano v. Rudkin (Italiano), 294 N.J. Super. 502, 507 (App. Div. 1996) (remanding, in part, for statement of reasons for failure to award counsel fees in post-divorce proceedings).
Remanded for further proceedings in accordance with this opinion. Jurisdiction is not retained.