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Blackshear v. Watkins-Blackshear

October 5, 2007


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FM-07-484-03.

Per curiam.


Argued: September 10, 2007

Before Judges Cuff and Lihotz.

In this appeal, we review an order awarding counsel fees to defendant Charlotte E. Watkins-Blackshear. Plaintiff Alvin K. Blackshear argues that the Family Part judge failed to find that he had the ability to pay or that defendant required assistance to defray her legal fees. Plaintiff further argues that his conduct did not merit the relief granted. We disagree and affirm.

The parties married in 1985 and divorced in 2003. Thereafter, a series of post-judgment motions were filed by both parties. On August 8, 2005, plaintiff filed a motion to terminate his alimony obligation and to reduce his child support obligation. Pursuant to the Property Settlement Agreement (PSA), plaintiff was obliged to pay to defendant $2000 each month permanent alimony and $279 weekly child support for the two children born of this marriage. Plaintiff asserted in this motion that he had lost his job at which he earned $107,000 annually, that he had sought similar employment unsuccessfully, and that he obtained employment eventually at IKEA earning $400 per week. In December 2005, Judge Convery found that plaintiff established a prima facie case of changed circumstances, ordered financial discovery, and scheduled a plenary hearing.

In early 2006, defendant obtained information that suggested plaintiff had obtained employment similar in type and remuneration to his original employment. In February 2006, plaintiff submitted documetation that confirmed his new employment and its $97,000 annual salary. In addition, the court and defendant also learned that plaintiff had commenced this employment before he filed his August 2005 motion to substantially reduce his support obligations.

Within weeks of the scheduled trial, defendant filed a motion to enforce litigant's rights. Ultimately, the parties resolved all issues on April 26, 2006, the scheduled trial day, except for defendant's request for attorneys' fees.

By order dated June 15, 2006, Judge Convery ordered plaintiff to pay $9000 to defray defendant's counsel fees and costs. In the written opinion that accompanied this order, Judge Convery found that plaintiff's actions and omissions "almost entirely" caused defendant's defaults under the PSA and earlier orders. The judge also stated that he was "equally unimpressed with the plaintiff's claim that he was unable to find any other employment than the job he held at IKEA." The judge expressly stated that plaintiff acted in bad faith concerning his employment status and the asserted basis of his August 2005 motion to modify his support obligations. He further found that plaintiff's delay in resolving the support dispute did not demonstrate good faith.

Rule 5:3-5(c) sets forth the factors to be considered in a fee award. The rule essentially codifies the standard established in Williams v. Williams, 59 N.J. 229 (1971) and its progeny. Judge Convery specifically addressed each of the relevant factors. Plaintiff does not contest the number of hours expended by defendant's attorney or the hourly fee charged. Plaintiff focuses almost entirely on the finding that he acted in bad faith.

"'Bad faith is not simply bad judgment or negligence.'" Borzillo v. Borzillo, 259 N.J. Super. 286, 294 (Ch. Div. 1992) (quoting Stath v. Williams, 367 N.E.2d 1120, 1124 (Ind. Ct. App. 1977)). It implies knowing or purposeful wrongdoing. Ibid. Bad faith also includes an intent to mislead or deceive. Ibid. Filing a motion to terminate an alimony obligation and to reduce a child support obligation based on facts known to be untrue fits this definition of bad faith. Id. at 293-94.

Plaintiff seeks to focus this court's attention on the multitude of motions and orders that preceded his August 2005 motion to modify his support obligation. The record, however, demonstrates that the fee award was limited solely to the support modification motion and defendant's April 2006 motion to enforce litigant's rights. Moreover, defendant's attorney was retained in January 2006, and the certification submitted in support of the fees requested reflects the services performed between January and April 2006.

The record also provides ample basis for Judge Convery to determine defendant's need for a fee award and plaintiff's ability to pay. In anticipation of the plenary hearing, updated financial information had been prepared and was available to the court.

Ultimately, the decision to award counsel fees is committed to the discretion of the judge. Williams, supra, 59 N.J. at 233; Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). Judge Convery exercised his discretion in accordance with the standards governing such awards. We affirm the June 15, 2006 ...

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