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Percival v. Braxton

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 8, 2009

CLAUDETTE PERCIVAL, PLAINTIFF-RESPONDENT,
v.
ROBERT BRAXTON, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-792-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2008

Before Judges Reisner and Alvarez.

This appeal by defendant Robert Braxton is from an October 25, 2007 order modifying child support and a January 25, 2008 order awarding counsel fees. We remand the matter for recalculation of child support because certain benefits paid to the parties' children were not included in the child support guidelines worksheet, but we affirm as to attorney's fees.

The two children, ages thirteen and eleven, are both in the sole custody of plaintiff Claudette Percival. The prior order of support had not been modified for some time prior to the entry of this order. The hearing on the modification application was originally scheduled for August 2, 2007, but was adjourned for reasons not clear from the record. On August 23, 2007, plaintiff and her counsel appeared in court, but defendant did not. The certified mailing notifying him of that date was returned unclaimed, but the regular mail notification was not returned at all. The motion judge noted that defendant had "never changed his address with the system." The hearing was re-listed for September 27, and defendant was re-served by regular and certified mail.

On September 27, defendant again failed to appear. Court personnel contacted him by phone, at which time he requested a postponement so that he could retain counsel. The matter was carried to October 12 to allow him that opportunity. On October 12, defendant's newly retained attorney was unavoidably delayed. That fact was not explained to plaintiff's counsel, who had been waiting for her adversary, until late in the day.

The matter was not heard until October 25, 2007. The support order was then increased to $269 plus $10 per week toward arrears, based on the child support guidelines. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-C to R. 5:6A at 2280 (2007). The issue of counsel fees was held in abeyance to afford defendant's counsel the opportunity to review the detailed submission by plaintiff's attorney. Oral argument was conducted on January 25, 2008, and the court awarded plaintiff counsel fees of $1325. The motion judge broke the award down into two installments, a payment of $662.50 due on March 14, 2008, and the balance due on May 30, 2008. This appeal followed.

Defendant raises the following points:

POINT I THE COURT BELOW ERRED BY NOT INCLUDING THE SOCIAL SECURITY DISABILITY BENEFITS RECEIVED BY THE PARTIES['] TWO MINOR CHILDREN IN THE CALCULATION OF DEFENDANT'S CHILD SUPPORT OBLIGATION

POINT II COUNSEL FEES SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF COUNSEL WHEN DEFENDANT LACKS THE ABILITY TO PAY AND DID NOT ACT IN BAD FAITH

Plaintiff's benefits statement from the Social Security Administration indicates that she receives a monthly net of $1005. Plaintiff also provided the court with a statement of the children's portion of the social security benefits, which is $251 per child, for a total of $502 per month. This amount, however, did not appear on the child support guidelines worksheet used by the motion judge in calculating defendant's support obligation.

Certainly, findings of the Family Part are entitled to particular deference in view of the "special expertise in the field of domestic relations" of the matrimonial courts. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Where the findings are not based on adequate, competent evidence in the record, however, the conclusions must be rejected. Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005). Because the children's benefits were not included in the support calculations, the matter must be remanded to the Family Part so that child support can be computed anew.

The question of counsel fees is a different matter. Rule 5:3-5(c) authorizes payment of counsel fees to a party successful in an action for child support based on consideration of the following factors:

(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 an award.

In reviewing plaintiff's request for counsel fees, the motion judge carefully considered counsel's certification of services and the history of postponements and futile court appearances. He noted that the increase in child support was effectuated nearly six months after it was initially sought. It is undisputed that plaintiff, a social security disability recipient, is a person of limited means. As the motion court said, of the two, defendant can best bear the cost of litigation. Defendant's gross weekly earnings are $1022, while plaintiff's gross weekly disability check is $210. We concur with the judge's conclusion that defendant "would be in a better position to pay any attorney's fees . . . than the person who is on a disability check." This request for modification was reasonable in light of the years elapsed since the last modification. Plaintiff's counsel's hourly charge for court appearances was reasonable. It was therefore appropriate for defendant to bear a significant portion of plaintiff's total attorney fees of $3,068.98. The judge's findings were based on competent evidence on the record and a proper balancing of the equities. Accordingly, we affirm the January 25, 2008 award of counsel fees.

Vacated in part, affirmed in part.

20090108

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