July 3, 2007
LISA ACCARDI, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
ANTHONY ACCARDI, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No.: FM-14-1147-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2007
Before Judges Holston, Jr. and Grall.
This is the appeal of plaintiff, Lisa Accardi, from the Family Part's January 23, 2006 order on counsel fees. The court ordered plaintiff to pay defendant, Anthony Accardi, $30,000 of defendant's counsel fees in defending against plaintiff's motion to relocate herself and the parties' three children from Wyckoff, New Jersey to North Carolina. The court's statement of reasons is attached to the order. We affirm.
The parties were married on August 15, 1987. Three daughters were born of the marriage. They are currently ages eighteen, fifteen and thirteen. A judgment of divorce was entered on February 22, 1996. The parties were awarded joint legal custody of the children with plaintiff having primary, physical custody. In November 2004, plaintiff filed a motion to relocate with the children to North Carolina. The plenary hearing to decide plaintiff's application included many days of testimony.
In the court's September 1, 2005 letter opinion, the trial court determined that plaintiff failed to meet her burden of proof that her request for relocation was made in good faith. The judge made her finding after a "review of Plaintiff's finances, her shifting reasons for wanting to relocate and her failure to insure that she could get a job at the salary she needs."
The court stated:
It is undisputed that Plaintiff does not have a job lined up in North Carolina. Plaintiff has made only the most minimal inquiry as to what her job prospects might be in the Raleigh-Durham area. If Plaintiff was as concerned about finances as she claimed, the court would think that Plaintiff would have made more of an effort to assure herself that she could find employment near where she wished to live, at a salary that could provide the financial security she seeks. Her failure to do so, especially in light of the court's expressed reservations on the record on precisely this point, at the time the motion was denied in January 2005, casts doubt on the Plaintiff's proffered reasons for her move.
The court also made credibility determinations regarding plaintiff's testimony:
The court also has concerns about Plaintiff's credibility in regard to her finances. Plaintiff earned $43,026 in 2004. . . . Her total withholdings were $10,550, leaving a net of $32,476. . . . She received, however, federal and state income tax refunds of $8,064. . . . Adding the $8,064 in refunds to Plaintiff's stated net income provides a 2004 net income of $40,540. Accordingly, Plaintiff should have monthly net earned income in 2004 of $3,378. Adding Defendant's $1,919 in child support and $200 in extraordinary expenses provides Plaintiff $5,497 per month net income.
In her December 28, 2004 CIS, Plaintiff lists monthly expenses of $7,372. . . . On cross-examination, however, Plaintiff was forced to concede that several items included among her expenses are [those that] either are not incurred or are not paid monthly. . . .
Deducting these sums from Plaintiff's CIS results in monthly expenses of $5,164 ($7,372-$2,208). . . . The court . . does not conclude that her income and expenses make it "financially untenable" for her to continue to reside in New Jersey.
Plaintiff has also had access to funds beyond her salary and child support over the last several years.
As a result, the court denied plaintiff's application to relocate. The order denying relocation permitted defendant to submit a certification of services within ten days and gave plaintiff ten days to submit opposition. Defendant's counsel submitted a certification of legal services rendered to defendant on September 8, 2005.
On January 23, 2006, the court ordered plaintiff to pay $30,000 toward defendant's counsel fee in defending against plaintiff's motion to relocate within thirty days or on any other schedule to which the parties agreed in writing. The court's statement of reasons were attached to the order. This appeal followed.*fn1
The court found that plaintiff lacked good faith in her application for relocation and concluded that an award of counsel fees to defendant was appropriate. The court considered the following factors in making its decision: (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; (4) the extent of the fees incurred by both parties; (5) whether any fees had been previously awarded; (6) the amount of fees previously paid to their respective counsel by each party; (7) the results obtained; and (8) the degree to which fees were incurred to enforce existing orders or to compel discovery.
Plaintiff appeals making only one contention. Plaintiff asserts that "[t]he skewed findings underlying the trial court's analysis of the propriety of awarding counsel fees to the defendant are so contrary to the record as to constitute a mistaken exercise of discretion warranting reversal."
Plaintiff informed the court that she netted $649,305.25 from the sale of her home in Wycoff and, thereafter, sought a new residence. In her September 19, 2005 certification, plaintiff stated that she rented a house in Spring Lake and was required to provide four years worth of rent totaling $97,500. She then repaid from the net proceeds of sale her family members a total of $79,333.43. After incurring moving expenses of $7,311.50, making credit card payments of $39,635.82, setting aside $20,000, which she owed plaintiff pursuant to a previous settlement, and paying her own counsel $282,275.73 in legal fees, plaintiff was left with a total of $123,248.77.
On January 23, 2006 the court made its attorney's fee determination. The court stated:
Defendant certainly earns a much greater income than Plaintiff. Indeed, Plaintiff notes that Defendant pays more in taxes in a year than she earns. Notwithstanding, Plaintiff has the ability to pay her own counsel in excess of $280,000 on this application. She has the ability to repay her family for monies previously advanced to her and she even has the ability to prepay four years rent on a house in an affluent shore community. It cannot be that Plaintiff has the ability to do all of these things but no ability to contribute to Defendant's fees incurred on this motion [which totaled approximately $104,000]. The court has considered the equities and the parties' circumstances and determines that Plaintiff is to pay counsel fees of $30,000 to Defendant within 30 days or on whatever other schedule on which the parties can agree.
In matrimonial cases, the award of counsel fees rests in the sound discretion of the trial judge. Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). A family judge has the authority to award counsel fees at the conclusion of the action pursuant to N.J.S.A. 2A:34-23. An award of an attorney's fee will only be reversed when the award is "so wide of the mark" as to constitute a mistaken exercise of discretion. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). If "deemed just" an award of counsel fees may be made for any party whether or not it is the prevailing party. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).
Plaintiff relies on Chestone, supra, for the proposition that in a matrimonial action, the court must "first find that the party requesting the fee award is in financial need and that the party against whom the fee award is sought has the financial ability to pay." In Chestone, this court stated "[i]n considering whether to award counsel fees in a family action the judge must consider the following factors: (1) the party requesting the award must be in financial need; (2) the party against whom the award is to be assessed must have the financial ability to pay; and (3) where the first two factors have been established, the good faith of the party seeking counsel fees in instituting or defending the action." Id. at 256. However, this court's decision in Chestone was based upon the Rules of Court prior to the Supreme Court's adoption of the eight factors listed in Rule 5:3-5, since Rule 5:3-5 was not in effect when the Chestone trial judge awarded counsel fees. Id. at 256 n.1. "Rule 5:3-5(c) was adopted effective April 5, 1999, and sets forth other factors the court should consider when reviewing a counsel fee request in the Family Part." Yueh v. Yueh, 329 N.J. Super. 447, 459, n.9 (App. Div. 2000).
N.J.S.A. 2A:34-23 states in applicable part that "[i]n considering an application, the court shall review the financial capacity of each party to conduct the litigation and the criteria for award of counsel fees that are then pertinent as set forth by court rule." Rule 4:42-9(a)(1) permits counsel fees in a family action pursuant to Rule 5:3-5(c). In determining whether counsel fees should be awarded, the following factors should be considered:
(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; (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.
In this case, the trial court specifically considered the factors listed in Rule 5:3-5(c) and made specific findings with respect to each factor. In its written decision accompanying its January 23, 2006 order awarding counsel fees, the court noted, under the heading "financial circumstances of the parties," that defendant is an attorney and has a well-established practice earning income around $220,000. Plaintiff on the other hand earned $43,000 per year and was unemployed at the time of the filing of these papers. The court noted that plaintiff received funds from her parents, but that defendant is in a far superior position to plaintiff with regard to their relative financial circumstances.
Under the heading "Ability of the parties to pay their own fees or to contribute to the fees of the other party," the court determined that defendant has the ability to pay his fees and plaintiff has the ability to pay her fees. The court noted that plaintiff sold her house and netted $649,305.25 from the sale of the house. After paying out loans to family members, credit card payment, rent for the next four years, and moving expenses, plaintiff had $123,248.77 remaining from the proceeds. As a result the court concluded that "both parties have the ability to pay their own fees and to contribute to the fees of the other party."
Under the heading "Reasonableness and good faith of the positions advanced by the parties," the court, relying on its September 1, 2005 opinion, determined that plaintiff's motive for relocating was in bad faith. The court noted that plaintiff changed her reasoning for wanting to move to North Carolina after the judge who presided over her original application had expressed concern over plaintiff's motive. "After hearing the evidence, the court did not believe that plaintiff's finances drove her decision to relocate to North Carolina. . . . A review of her finances, her shifting reasons for relocating and her failure to seriously look for a job led the court to conclude that her stated reasons for the move were not her real reasons for wanting to leave New Jersey. Plaintiff's lack of candor convinced the court she lacked a good faith reason for the move and thus for the entire application."
Under the heading "Extent of the fees incurred by both parties," the court stated, "Defendant's total fees and disbursements were $104,630.94. Plaintiff apparently incurred fees on the application of $282,275.73."
Under the heading "Any fees previously awarded," the court noted that "[n]o fees have been awarded previously on this application."
Under the heading "amount of fees previously paid to counsel by each party," the court stated "Plaintiff has certified that she has paid fees of $282,275.73." The court noted that defendant's counsel has not certified as to how much of his bill has been paid.
Under the heading "Results obtained," the court stated, "Plaintiff's relocation motion was denied in its entirety for essentially the same reasons expressed by the first judge to hear the matter."
Under the heading "Degree to which fees were incurred to enforce existing order or to compel discovery," the court noted that plaintiff "failed to provide Defendant with the bulk of her credit card statements for the years leading up to her motion to relocate. Defendant was forced to bring the matter to the court to compel compliance with his discovery requests on numerous occasions." The court also noted that there were issues during discovery regarding a trust in which plaintiff may or may not have been a beneficiary. The court stated that "[t]hose documents were not produced until after the close of testimony when Defendant had requested that the court draw a negative inference from Plaintiff's failure to produce the documents."
Finally, under the heading "Any other factor bearing on the fairness of an award," the court noted that it was satisfied with the reasonableness of defendant's attorney's fees.
Thus, the judge made express findings in accordance with the standard for assessing attorney's fees in matrimonial actions contained in Rule 5:3-5(c), under which need is one factor but not a determinative factor. Additionally, her factfinding determinations are adequately supported by evidence in the record. Further, the judge made credibility determinations regarding plaintiff's testimony regarding her finances. As a result, this court should not second-guess those credibility determinations. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We are satisfied, therefore, that the court's determinations are not so wide of the mark that they constitute a mistaken exercise of discretion. See Chestone, supra, 322 N.J. Super. at 258. Accordingly, the trial court's $30,000 award of attorney's fees in favor of defendant is affirmed.