August 3, 2007
SUSAN CIALLELLA, PLAINTIFF-RESPONDENT,
RALPH CIALLELLA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, FM-13-1130-00-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 21, 2007
Before Judges A. A. Rodríguez, Sabatino and Lyons.
Ralph Ciallella (Father) appeals from the December 23, 2003 order denying his cross-motion. We reverse and remand for consideration of the cross-motion.
The parties were married on August 28, 1976. They have one son, Jack, who is now age 21. On January 4, 2001, Father and Mother entered into the Property Settlement Agreement (PSA), which was incorporated into their Judgment of Divorce.
The PSA requires each party to make certain financial payments for the support of Jack. Specifically, at issue in this case, is the provision with regard to Jack's college education expenses and child support payments. The parties agreed to contribute to Jack's college education expenses, after deducting all loans, grants, scholarships and Jack's personal assets, in accordance with their respective abilities to pay at the time Jack enters college.
In Fall 2003, Jack enrolled as a freshman at the University of Delaware, a four-year, two-semester accredited university. In Winter 2004, Jack transferred to the Digital Media Arts College (DMAC), a non-accredited, year-round school in Boca Raton, Florida.
Mother filed a post-judgment motion seeking reimbursement of certain college education expenses incurred by Jack. In support of Mother's motion, her attorney, Susan Roberts, filed a certification, alleging facts that were not within the lawyer's personal knowledge. Father opposed the motion and filed a cross-motion, seeking various relief, including, a modification of his child support obligation and resolution of past and future college contributions. Mother submitted a certification adopting her attorney's certification, "to the best of [her] knowledge."
The judge heard oral argument and issued two orders. In one order, the judge denied Mother's motion without prejudice, reasoning that: 1) the certification was faulty; 2) Mother had not provided any itemized bills to Father prior to the filing of the motion; and 3) never provided itemized bills to the court. In the second order, the judge denied Father's motion with prejudice on some requests and without prejudice as to others. The judge deferred to order Mother to pay Father's counsel fees, until the conclusion of litigation.
On appeal, Father contends that the trial judge erred in failing to disqualify Roberts pursuant to Rules of Professional Conduct (RPC) 3.7, due to her violation of R. 1:6-6, because Roberts's certification has irreparably tainted the proceedings, and the judge must make him whole by awarding him counsel fees. He also contends that Roberts should be disqualified and that Mother's motion "should have been dismissed outright due to these transgressions." We disagree. Moreover, the issue is now moot, because Mother terminated Roberts and hired a new attorney, and further, her motion was denied.
Unlike the federal constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. Compare U.S. Const. art. 3, sec. 2, cl. 1, with N.J. Const. art. 6, sec. 1, par. 1; State v. Gartland, 149 N.J. 456, 464 (1997). However, reviewing courts usually will not exercise its jurisdiction or render abstract advisory opinions. Gartland, 149 N.J. at 464; see Zirger v. General Accident Ins. Co., 144 N.J. 327, 330 (1996)("Ordinarily, our interest in preserving judicial resources dictates that we not attempt to resolve legal issues in the abstract.") The issue in this case, however, is not an issue that is "of significant public importance and is capable of repetition." Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998).
Father argues on appeal that the judge abused his discretion by failing to award him counsel fees and costs. Specifically, he argues that he would not have incurred legal fees, but for Mother's faulty motion, and hence, he was entitled to "be made whole." However, the decision to award counsel fees is within the sound of the trial judge. R. 5:3-5(c); R. 4:42-9(a)(1); Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001); Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). This includes a judge's determination either to deny counsel fees altogether or to defer the award of counsel fees until the conclusion of litigation. The judge considers whether: "(1) the party requesting the award [is] in financial need; (2) the party against whom the award is to be assessed [has] the financial ability to pay;" and (3) where the first two factors have been established, the good faith or bad faith of either party in instituting or defending the action. Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999); Williams v. Williams, 59 N.J. 229, 233 (1971).
In this case, the litigation is not over. Moreover, we perceive no abuse of discretion here; we will not reverse the interlocutory denial of counsel fees. The judge deferred an award of counsel fees, reasoning that counsel fees can be assessed later on, after the outcome of subsequent motions, assuming that Mother will re-file her Motion.
Father also contends that the judge erred by not modifying his support obligation for Jack. We disagree and affirm. Our review of the record reveals that Father did not present any proofs of changed circumstances. While, it is well settled that despite the fact that the parties made an agreement regarding child support, the court does have the power to modify such agreements. Clayton v. Muth, 144 N.J. Super. 491, 496 (App. Div. 1976). As such, child support payments can be modified upon a showing of changed circumstances. N.J.S.A. 2A:34-23; Crews v. Crews, 164 N.J. 11, 24 (2000); Lepis v. Lepis, 83 N.J. 139, 151 (1980). However, the moving party "bears the burden of making a prima facie showing of changed circumstances." Crews, supra, 164 N.J. at 28 (citing Miller v. Miller, 160 N.J. 408, 420 (1999)). No such showing by Father was made here.
Finally, Father contends that the judge erred by not addressing the other issues in his cross-motion. We agree. The judge should have addressed the merits of the cross-motion. We understand his reluctance to decide these issues until Mother filed a new motion based upon facts within her own knowledge. However, what the judge should have done is simply adjourn Father's cross-motion for a sufficient period of time to allow Mother to file a proper motion. If she did not file by a certain date, the judge should then proceed to decide the issues raised in Father's cross-motion.
Accordingly, we affirm that portion of the December 23, 2003 order that denied Father's request for modification of child support, but reverse and remand to the Chancery Division, Family Part, Monmouth County, the remaining issues raised by Father.
Affirmed in part and reversed and remanded in part. We do not retain jurisdiction.
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