On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-5328-86.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Fisher and Sapp-Peterson.
The parties were married in 1983. When they separated two years later, plaintiff Kristin O'Connell filed this divorce action. Three years later, the parties entered into a property settlement agreement (PSA), which was incorporated in a final judgment of divorce entered on September 14, 1988.
The PSA obligated defendant Andrew Nataloni to pay plaintiff $9100 per year for the support of the parties' only child, who was born in 1984. That obligation was subject to modification pursuant to an escalator clause; defendant also agreed to promptly pay the reasonable cost of various child activities.
In 2004, plaintiff filed a motion in aid of litigant's rights, seeking among other things payment of child support arrears and an award of counsel fees. Defendant opposed the motion and cross-moved for various modifications of the PSA. The motion judge determined that a plenary hearing was required. Plaintiff moved for reconsideration, seeking the immediate payment of the child support arrears that defendant conceded were owed. The motion judge granted that relief and awarded plaintiff $25,000.
Following discovery, a plenary hearing took place over the course of eleven days, beginning in May 2005 and ending in March 2006. The judge rendered a decision in April 2006. He rejected defendant's claim that the child support obligation should be reduced because plaintiff had alienated the child's affections.
In addition, the judge found defendant's income as a practitioner in obstetrics/gynecology had been substantially diminished by economic conditions, but the judge also found defendant was underemployed without just cause. He ultimately held defendant responsible for sixty-eight percent of the child's college costs. And, in adjudicating the competing fee applications, the judge ordered that defendant should contribute $5000 to plaintiff's outstanding fees.
Plaintiff appealed. In an unpublished opinion, we found all her arguments to be without merit with the exception of her challenge to the counsel fee award. O'Connell v. Nataloni, No. A-5614-05T3 (App. Div. March 12, 2008) (slip opinion at 18-19). We vacated the $5000 fee award and remanded for further proceedings.
In setting aside the fee award, we observed that the PSA stipulated that, upon violating its terms, a party would be required to pay the other's "entire counsel fees." We also recognized that plaintiff had certainly demonstrated a violation of defendant's support obligations:
When plaintiff filed her January 2004 enforcement motion, she claimed that in excess of $60,000 in child support, tuition and "other expenses" had accrued. It was only through the initiation of the enforcement action that defendant began to make any payments. Plaintiff incurred nearly $57,000 in counsel fees, but defendant was ordered to pay only $5,000. Defendant paid his own attorney $53,000 during the pendency of the proceedings.
The court's decision did not address the PSA's provision regarding counsel fees.
It is true that defendant eventually paid plaintiff $42,000 during the course of the legal proceedings, pursuant to interim orders, so that arrearages were no longer an issue to be addressed in the trial court's decision. Plaintiff, however, was justified in pointing out that defendant unilaterally ceased paying child support sometime after September 2001. At that time, [the child] was seventeen years old and defendant was still under an obligation to pay $9,100 in base child support, plus annual increases. ...