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Remolina v. Remolina

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 16, 2009

CARLOS REMOLINA, PLAINTIFF-RESPONDENT,
v.
PARVIN REMOLINA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-508-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2009

Before Judges Fall and Alvarez.

Plaintiff Carlos Remolina and defendant Parvin Remolina, both pro se on this appeal, were divorced on March 20, 2008. Defendant appeals that portion of the divorce judgment awarding her rental income owed by plaintiff's medical practice. She also appeals the court's denial of her request for counsel fees. For the reasons that follow, we affirm.

Defendant's points are:

I. THE TRIAL COURT ERRED BECAUSE IT RELIED ON AN INACCURATE CALCULATION OF RENTAL FEE[S] OWED TO DEFENDANT/APPELLANT ON THE 911 WOOD AVENUE PROPERTY AND THE CORRECT AMOUNT WAS NEVER PROVIDED TO IT.

II. THE TRIAL COURT ERRED IN ITS DECISION TO REDUCE THE RENT OWED TO DEFENDANT/ APPELLANT FOR THE 911 WOOD PROPERTY BECAUSE ITS FINDINGS WERE NOT BASED ON CREDIBLE EVIDENCE.

III. THE TRIAL COURT ERRED IN ITS FINAL JUDGMENT BECAUSE ITS BASES FOR DENYING DEFENDANT/APPELLANT'S REQUEST FOR ATTORNEY FEES TO BE PAID BY PLAINTIFF/RESPONDENT LACKS FACTUAL UNDERPINNING AND LEGAL BASIS.

The parties married on September 5, 1999, and separated approximately four years later. The divorce complaint was filed on September 30, 2003. During the acrimonious divorce proceedings, plaintiff filed for bankruptcy. After payment of $200,000 to the bankruptcy trustee, defendant acquired plaintiff's interest in 911 Wood Avenue (911) and two other pieces of real estate. 911 is an office building previously used by plaintiff for his medical practice that was held by an entity, created by both parties, but titled solely in defendant's name. That entity entered into a ten-year lease with plaintiff from March 1, 2002 through February 29, 2012. Real estate taxes for 911 totaled approximately $26,000 per year, and the monthly rent was $6,500.

While the divorce was pending, defendant brought a landlord-tenant action to compel plaintiff's removal from the premises for nonpayment of rent. The action was consolidated with the matrimonial matter on November 14, 2003. Despite the matrimonial court's order that plaintiff pay rent, he failed to do so. He occupied 911 until March 2006.

The February 23, 2007 equitable distribution consent decree entered into between defendant and the bankruptcy trustee states:

12. Notwithstanding anything contained herein to the contrary, the defendant shall have . . . the right to seek by way of legal action from the plaintiff and/or his medical practice known as Carlos Remolina, M.D., P.A., post-bankruptcy petition arrears in rent with respect to the premises known as 911 Wood Avenue . . . due and owing from January 2006 forward, and also including but not limited to arrears in rent which have been contained in certain Orders of the Court and pendente lite Orders with respect to plaintiff's obligation to pay said rent and with respect to the obligation of the plaintiff and his medical practice to pay real estate tax arrears pertaining to 911 . . . .

13. Notwithstanding anything contained in this agreement to the contrary, the defendant shall have reserved to her . . . the right to seek from the said Carlos Remolina and/or his medical practice, Carlos Remolina, M.D., P.A., all real estate taxes due and owing on 911 . . . which accrued on and after the date of the filing of the plaintiff's Petition before the United States Bankruptcy Court and which remain unpaid. . . .

18. Nothing contained in this settlement agreement is intended to waive or release the defendant's right to seek legal fees, costs or expert fees from the defendant, which fees were incurred in the above-noted divorce action[.]

Counsel for both parties submitted written summaries of their positions by way of closing argument, including the issue of payment of back rent for 911. As set forth in defendant's attorney's summation, amounts due were as follows:

January and February 2006$13,112.00 March 2006 through January 2007 at $6,753.00 per month$74,283.00 March 2007 through May 31, 2007 at $6,955.00$20,865.00 TOTAL:$108,260.00

Defendant now claims that her attorney submitted an "inaccurate calculation" of the amount of rent owed by plaintiff. She alleges the requested amount should have been $115,013, not $108,260. It is her further contention that his failure to set forth all the unpaid rent, including that for the month of February 2007, was a plain error which warrants reversal. Additionally, she asserts that the trial court's decision to limit the number of months in which rent was due from January 2006 through December 2006, and to only award her $73,899, was also error.

Plaintiff is a pulmonary physician; defendant operates a daycare center, in addition to receiving rental income from the properties which she acquired from the bankruptcy trustee. In the court's cogent, detailed, twenty-one-page opinion, the trial judge concluded, among other things, that defendant had not made any efforts to mitigate damages resulting from the loss of rental income. In fact, the court specifically found that the failure to re-rent 911 established that the amount paid by plaintiff was "excessive." The court expressed concern about whether defendant was motivated to re-rent 911 during the pendency of the divorce, particularly if the rental income due from plaintiff was higher than what could be obtained on the open market. Moreover, the court noted, defendant would benefit by claiming the loss of rental income on her tax returns. For these reasons, the court limited the award of unpaid rent to a total of $73,899 for the months of January 2006 to December 2006.

In reliance on the factors enumerated in Rule 5:3-5(c), the court denied both parties' counsel fee requests as "both parties had not been forthright with this Court and [] many of the financial issues in this matter were not forwarded in good faith." The court noted that defendant received "various properties" as equitable distribution, while plaintiff, a physician, "has the ability to earn a significant income should he continue to practice." Underpinning the denial of counsel fees was the trial judge's determination that an enormous amount of time, and therefore expense, was wasted by each party "criticizing each other, their life together, their relationship with each other and Dr. Remolina's medical practice." The court said: "that [the parties] both had significant credibility issues," and that "both parties were so entrenched in their pursuit of 'destroying' the other party that they were unable to compromise on what became resolvable issues of a very brief marriage involving certain properties that would obviously need to be divided as part of equitable distribution."

We review the trial judge's conclusions deferentially in view of the "special . . . expertise in family matters" of the matrimonial courts. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Decisions related to equitable distribution are well within a trial judge's discretion and are governed by "the sufficient credible evidence" standard. See, e.g. Rothman v. Rothman, 65 N.J. 219, 233 (1974); Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).

The trial judge in this case was faced with significant questions of credibility. The only transcripts supplied by defendant for our consideration on this appeal are the proceedings from November 14, 2003, related to the initial landlord-tenant action. We see nothing in this partial record that would warrant disturbing the trial judge's conclusions.

The trial court properly relied upon the written submission by defendant's attorney. Such submissions are not subject to attack by a dissatisfied litigant on appeal when no complaint or objection is raised before the trial judge. Other than a general attack on her own attorney's work, defendant does not explain why the figures presented by her attorney, and relied upon by the court, were mistaken. She does not challenge that for January and February 2006, the total rental figure was $13,112. She does not challenge that in the months of March 2006 through December 2006, the correct monthly rental amount was $6,753. She does not question that plaintiff did not occupy the premises after March 2006.

In light of the significant credibility issues and the lack of mitigation on defendant's part, we therefore see no error in the trial judge's decision that rental income should not be paid beyond December 2006. If anything, the award of artificially high rent for nine months while the premises were vacant was generous. We do agree, however, that the court made a mathematical error and will exercise original jurisdiction to correct the error instead of remanding the matter for that purpose. R. 2:10-5. When $13,112 is added to $67,530, the correct total is $80,642, not the $73,899 ordered by the court. Defendant's other arguments with respect to the rental income amount and rental term are so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Defendant also contends that the trial court erred in its decision to deny counsel fees. "[T]he award of counsel fees and costs in a matrimonial action rests in the discretion of the court." Williams v. Williams, 59 N.J. 229, 233 (1971). Absent a clear abuse of discretion, a trial court's award of counsel fees should not be disturbed. Chestone v. Chestone, 285 N.J. Super. 453, 468 (App. Div. 1995).

Rule 4:42-9(a)(1) directs that counsel fee awards in a family action be made in accordance with Rule 5:3-5(c). In making such awards, a court considers several 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 both during and prior to trial; (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.

[R. 5:3-5(c).]

The court found that both parties were in significantly worse financial circumstances than at the beginning of the litigation, but certainly on equivalent footing. Neither party had adequate resources with which to pay their own attorney's fees. Each party obtained mixed results. Neither party had much in the way of credibility, and had not acted in good faith in presenting their claims. Hence, we see no abuse of discretion on the part of the trial judge on this issue either. Accordingly, we affirm the denial of counsel fees.

Affirmed.

20091116

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