On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1490-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Defendant Arthur Lester appeals from a November 7, 2008 order of the Family Part denying his motion to reduce child support and awarding his ex-wife, plaintiff Tamala Lester, $2,500.00 in counsel fees, and from a December 9, 2008 order granting plaintiff $20,926.56 in additional counsel fees pursuant to our remand. We affirm in part and reverse in part.
Briefly, by way of background, the parties were married on June 10, 1990, had one child born in 1995, separated in 2004, and divorced by final judgment (FJD) on May 4, 2005. They executed a property settlement agreement (PSA) on January 17, 2005, which was later incorporated into the FJD. For purposes here relevant, the PSA provides that defendant pay child support of $350 weekly. At the time the PSA was executed, defendant was a sixty-two year old physician and president of the medical staff at Clara Maass Medical Center, earning approximately $230,000 annually, while plaintiff was a forty-six year old home improvement contractor, with no earnings that year.
About one year after the FJD, plaintiff moved for enforcement of litigant's rights (ELR), certifying that defendant was over $30,000 in child support arrears. In that same application, plaintiff also sought enforcement of the parties' separate contractual agreement concerning realty in Summit, New Jersey, unrelated to the marital estate and therefore not covered by the PSA.*fn1 Defendant cross-moved for a parenting time schedule and permission to take their child on a Florida trip. On November 17, 2006, the court awarded plaintiff $32,600 in child support arrears and fixed a parenting schedule. The court also ordered discovery and set a hearing date on the Summit property contract claim.
Following that plenary hearing on May 17, 2007, the court awarded plaintiff one-half ($40,500) of the equity remaining in the Summit home, but denied her request for counsel fees because plaintiff's breach of contract claims, being unrelated to the matrimonial action, were not claims for which counsel fees are authorized under Rule 5:3-5(c). The judge, however, did not address plaintiff's claim for counsel fees incurred in advocating the remainder of the relief sought in her enforcement motion.
Defendant appealed from that portion of the June 4, 2007 order awarding plaintiff $40,500 and plaintiff cross-appealed from the denial of her request for counsel fees. In an unpublished opinion, we affirmed as to the former, and as to the latter, we concluded that "the fact that [plaintiff] may not be entitled to counsel fees for prosecuting her claim for breach- of-contract damages does not preclude consideration of her request for counsel fees for those portions of her enforcement action clearly matrimonial in nature." Lester v. Lester, No. A-5812-06T3 (App. Div. July 1, 2008) (slip op. at 16-17). Thus, we remanded "for the limited purpose of reconsidering plaintiff's counsel fee request as it relates to matters in the enforcement action other than plaintiff's breach of contract claim." Ibid.
Consequently, on July, 11, 2008, plaintiff moved for attorneys fees, including appellate counsel fees and costs, which we directed the Family Part to consider in our interim order of August 14, 2008, pursuant to Rule 2:11-4. To this end, plaintiff's attorney submitted affidavits of services and schedules of fees showing billings of: (1) $1,625 for plaintiff's instant motion for counsel fees; (2) $7,087.25 for the parenting time and child support issues raised on her original motion in aid of litigant's rights; and (3) $12,214.31 for the entirety of the previous appellate litigation, with no further breakdown apportioning fees between contract and matrimonial fee issues.
While that matter was still pending, on October 3, 2008, defendant moved for a reduction in his child support payments, alleging that his pre-existing medical condition of psoriasis had worsened and negatively impacted his earnings. In support of this claim, defendant presented the report of his treating dermatologist, who stated that the condition was "extremely painful" and could lead to spontaneous bleeding. As a result of this condition, defendant claimed that he could no longer perform the "complex head and neck cancer surgeries" that were formerly part of his surgical practice, and accordingly was limited to "only the most simple and short surgical procedures," which he would perform two to four times per week. Defendant cited his declining earnings, which fell from $230,000 in 2004 to $202,000 in 2005, to $189,000 in 2006, and to $73,500 in 2007. He anticipated earnings in 2008 similar to those in 2007. Based on his decreased income, defendant requested a reduction in his weekly child support obligation to $170.
Following a hearing on November 7, 2008, the judge denied the application and awarded plaintiff $2,500 in attorney's fees and costs associated with plaintiff's defense of the motion. In denying any reduction in child support, the court cited to defendant's other assets, including $2 million in retirement savings, extravagant expenses and lifestyle (including a new Mercedes), and the fact that defendant continued to maintain a seven-plus person staff at his medical office, despite his alleged reduced workload.
Thereafter, on December 9, 2008, in a letter opinion, the judge rendered his decision on plaintiff's counsel fee application engendered by our earlier remand, awarding her $20,926.56 in counsel fees and costs pursuant to Rule 5:3-5(c). That award was divided as follows: "$7,087.25 [for] fees and costs incurred solely in regard to the parenting time and child support issues[;] $1,625 . . . for the instant [fee] application [incurred as a result of our remand][;] and $12,214.31 [for] the appellate matter." Defendant was ordered to pay the judgment in three equal installments of $6,975.52. In making this award, the judge cited a multitude of factors, including: (1) defendant's income and assets that far exceeded plaintiff's, who, at the time of the application, had no earned income and was using her credit cards and borrowed funds to pay her counsel fees; (2) the bad faith of defendant, who had amassed $32,600 in child support arrears by the return ...