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Magliaro v. Cullen

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 21, 2007

DANIELLE MAGLIARO, PLAINTIFF-APPELLANT,
v.
BRYAN CULLEN, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FD-20-1377-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 14, 2007

Before Judges S.L. Reisner and Lyons.

Plaintiff Danielle Magliaro appeals from an August 18, 2006 trial court order awarding her $12,000 in counsel fees and costs in this case. Finding no abuse of discretion in the trial court's decision we reject plaintiff's claim that she was entitled to a higher award, and we affirm.

Plaintiff filed a complaint seeking to establish defendant's paternity regarding her two children. Defendant contested paternity. After eighteen months of litigation concerning first paternity and then the proper amount of child support, the parties resolved the case by consent order. At the conclusion of the case, the trial judge issued a thoughtful and detailed oral opinion, placed on the record on August 18, 2006, deciding the parties' respective claims against each other for counsel fees and costs.

Applying the factors set forth in R. 5:3-5(c), the trial judge first concluded that at the beginning of the case defendant had engaged in bad faith "tactics that were . . . intended to obstruct or delay." However, the judge also found that plaintiff had, to some extent, asserted an unreasonable litigation position concerning her financial resources. The judge further acknowledged that the economic aspect of the case was complicated, because defendant's initially very high income was greatly reduced after he suffered a serious accident. "So there were significant issues as to how his income was to be calculated." And he found that at the later stages of the case both parties acted in good faith. The judge then considered the parties' relative economic status and ability to pay fees. He found that the parties each incurred roughly the same amount of counsel fees which, in total, added up to about $60,000. He concluded that defendant should pay two-thirds of the total fees and plaintiff should pay one-third. Using that calculation, he ordered defendant to pay plaintiff $12,000 toward her fees.

On this appeal, plaintiff contends that the trial court should have ordered defendant to pay her entire counsel fee, because of his bad faith litigation and superior earning power.

We do not engage in de novo review of a trial judge's fee award. Rather, we must defer to the trial judge's determination as to the proper amount of counsel fees unless the decision constitutes an abuse of discretion. See Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). As plaintiff concedes, the trial court did consider and analyze the factors set forth in R. 5:3-5(c); the crux of plaintiff's argument is that the judge gave insufficient weight to certain factors rather than others. Bearing in mind the judge's familiarity with this litigation, and his careful consideration of the applicable factors relevant to a fee award, we cannot conclude that his decision in this case represents an abuse of discretion.

Affirmed.

20070821

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