October 16, 2008
DHIREN GAJERA, PLAINTIFF-APPELLANT,
GITA SOJITRA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-1746-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Winkelstein and Chambers.
Plaintiff husband appeals from a May 4, 2007 order requiring him to pay counsel fees to his former wife; a June 27, 2007 order denying him counsel fees; and a March 26, 2007 order for additional relief. We reverse the May 4, 2007 counsel fee order because the court failed to conduct the appropriate analysis to support a counsel fee award. We affirm the remaining orders as plaintiff's challenge to those orders is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The parties were married on February 17, 2001. They have one child, D.G., born in 2005. On February 6, 2006, plaintiff filed a complaint for divorce. On January 16, 2007, the parties placed a settlement agreement on the record and the court entered a final judgment of divorce. On March 12, 2007, the court entered an amended judgment of divorce, which stated, in part, that "the Defendant will take [D.G.] to India for approximately four weeks in April 2007. In anticipation of same, the Plaintiff shall cooperate fully and execute all necessary documents and/or authorizations for [D.G.'s] passport and/or to facilitate said trip."
Plaintiff refused to sign D.G.'s passport. Consequently, on March 23, 2007, defendant filed an order to show cause seeking to compel plaintiff to sign the passport. Plaintiff cross-moved to set aside the final judgment of divorce and to compel defendant's counsel to release funds held in trust. Plaintiff failed to appear on the March 26, 2007 return date and the court ordered him to sign the passport, and sanctioned him $2500. The court did not address plaintiff's cross-motion on this date. Defendant and her daughter left for India on April 4, 2007.
The court addressed plaintiff's cross-motion on May 4, 2007. Following oral argument, the court found "no reason to set aside the judgment of divorce. . . . The fact that [plaintiff and his counsel] refuse to sign it does not stop it from being a settlement . . . it's a verbal agreement and it's just as binding and enforceable as if they had signed it."
The court awarded counsel fees to defendant in the amount of $2005 for the order to show cause regarding the passport, and $16,350.03 in counsel fees for plaintiff for the underlying law suit. The judge reasoned, "I'm going over the certification of services . . . I find [defendant's counsel's] hourly rate to be reasonable. I think the amount of time was a bit excessive, so I've reduced it somewhat [to] $2005. . . . This is the $16,000 amount, the one for $16,000. . . . I'm going to sign this one also . . . for the reasons [defendant's counsel] states in [his] certification." On May 4, 2007, the court compelled payment of $2005 and $16,350.03 to defendant's counsel, to be deducted from plaintiff's portion of the amount held in trust by defendant's attorney. That same day, defense counsel disbursed the proceeds of the trust to the parties and to himself.
On May 11, 2007, plaintiff's counsel sent a fax to defendant's counsel inquiring whether defendant had returned from India with D.G. Three days later, plaintiff filed an order to show cause seeking a return of D.G. to the United States; custody of D.G.; sanctions against defendant; and attorney's fees. On May 17, 2007, defendant's counsel wrote to the court and indicated that his client and D.G. would be returning on May 19, 2007. Defendant returned to the United States with D.G. on that date.
On the May 29, 2009 return date of plaintiff's order to show cause, the court found defendant to be in substantial compliance with prior orders and denied plaintiff's application for sanctions and attorney's fees. On June 27, 2007, the court memorialized its decision in an order.
In light of this procedural history, we begin with the court's May 4, 2007 award of counsel fees in the amount of $16,350.03. A Family Part judge may award counsel fees only after considering the factors set forth in Rule 5:3-5(c), as well as the parties' good or bad faith. N.J.S.A. 2A:34-23. Rule 5:3-5(c) provides that
[i]n determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, . . . (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 the award.
As our Supreme Court has observed, in determining an award of counsel fees, a court must consider: "whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party . . . ; the nature and extent of the services rendered; and the reasonableness of the fees." Mani v. Mani, 183 N.J. 70, 94-95 (2005).
An appellate court may disturb an award of counsel fees only after a finding of a clear abuse of discretion by the trial court. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). Nevertheless, when a trial court fails to make findings to support its award of counsel fees, the award must be set aside. Gordon v. Rozenwald, 380 N.J. Super. 55, 79 (App. Div. 2005). Such is the case here with the court's May 4, 2007 fee award. The judge simply said that he would sign the order for fees for the reasons defendant's attorney set forth in his certification of services. That does not constitute the requisite analysis. Consequently, we vacate the May 4, 2007 counsel fee award and remand to the trial court to evaluate defendant's fee application under the controlling legal criteria and make findings accordingly.
As previously indicated, plaintiff's remaining arguments on appeal are without merit. Consequently, we affirm the March 26, 2007, and June 27, 2007 orders.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
© 1992-2008 VersusLaw Inc.