On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, FM-15-1375-05S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 24, 2007
Before Judges Axelrad and Sapp-Peterson.
Defendant Michael Miljenovic appeals from the Family Part's January 26, 2007 order directing him to pay plaintiff's counsel fees in the amount of $4,821.60 that were awarded as a result of a number of motions filed to enforce litigant's rights. Defendant argues that the court failed to comply with Rules 5:3-5(c) and 4:42-9(d), which he contends required the court to make a counsel fee award at the time of entry of the August 26, 2006 and November 17, 2006 orders, not by a separate order in January; and that there was an insufficient basis under the Rules to justify the award. We disagree and affirm substantially for the reasons articulated by Judge Pogarsky in the rulings contained in the various court orders.
The parties were divorced in April 2006. Post-judgment enforcement motions against defendant were already necessitated by May, resulting in an order in plaintiff's favor and a counsel fee award to her. On August 25, 2006, on another enforcement of litigant's rights motion, the court made findings that defendant earned substantial income (approximately $140,000 per year) and was persistently delinquent in paying alimony and child support, but concluded there was insufficient evidence of bad faith on defendant's part to warrant another award of counsel fees at that time. The court expressly noted, however, that if defendant failed to comply with the August order, it would "not hesitate to grant the Plaintiff her counsel fees and costs for any future enforcement motions necessitated by [defendant's] non-compliance, as well [as] grant the Plaintiff retroactive counsel fees for the within Motion."
Plaintiff filed another enforcement of litigant's rights motion in November 2006, during which the court expressly found that defendant acted in bad faith, his conduct caused plaintiff to incur counsel fees, and that plaintiff was entitled to an award of counsel fees for both the August and November motions. The court directed plaintiff's counsel to file a motion with a supporting affidavit, considered defendant's response, and found the fees fair and reasonable.
The Family Part judge appropriately applied the court rules, including Rule 5:3-7, and explained his findings, which were supported by the record. We discern no abuse of discretion in the challenged order. See Williams v. Williams, 59 N.J. 229, 233 (1971) (holding that the award of counsel fees in a matrimonial action rests in the sound discretion of the trial judge).
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