August 19, 2010
WILLIAM ENRIQUE AGRAIT, PLAINTIFF-APPELLANT,
MARIA BOAS A/K/A MARIA DE FATIMA VILAS BOAS MARTINS A/K/A MARIA DE FATIMA VILAS BOAS AGRAIT A/K/A MARIA MARTINS A/K/A MARIA AGRAIT A/K/A MARIA DE FATIMA MARTINS A/K/A MARIA DE FATIMA AGRAIT, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1556-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2010
Before Judges Payne and Waugh.
Plaintiff, William Agrait, a Newark attorney, appeals from a decision by Judge Nancy Sivilli denying his motion, pursuant to Rule 4:50-1, to vacate a portion of a judgment for divorce imposing attorney's fees on him in the amount of $14,731.83. On appeal, plaintiff raises the following issues:
POINT I. AN AWARD OF COUNSEL FEES CONSTITUTES A LEVIABLE JUDGMENT WHICH MAY BE MODIFIABLE UNDER EXCEPTIONAL AND COMPELLING CIRCUMSTANCES UNDER R. 4:50-1(f) AND INSERRA V. INSERRA, 260 N.J. SUPER. 71 (APP. DIV. 1992).
A. THE APPELLATE DIVISION MAY ADJUDICATE THIS MATTER GIVEN THE LOWER COURT'S MISAPPLICATION OF THE LAW AS TO R. 4:50-1(f) AND FAILURE TO APPLICABLE LAW [SIC] AS TO R. 4:50-2.
B. THE FILING OF THE CROSS MOTION WAS SEASONABLE UNDER R. 4:50-2. POINT II. PLAINTIFF'S R. 4:50-1(f) MOTION TO VACATE THE ATTORNEY AWARD UNDER CHESTONE V. CHESTONE, 322 N.J. SUPER. 256 (APP. DIV. 1999) SHOULD HAVE BEEN GRANTED; THE TRIAL JUDGE'S LACK OF KNOWLEDGE AS TO THE PRE-COMPLAINT SETTLEMENT OFFER DID NOT PERMIT THE COURT TO CONDUCT A CHESTONE ANALYSIS AS TO THE REASONABLENESS AND NECESSITY OF SAID FEES GIVEN (1) THE AMOUNT OF THE ATTORNEY FEE AWARD IN COMPARISON TO THE VALUE OF THE MARITAL RELIEF GRANTED, (2) THE ECONOMIC FEASIBILITY OF SAID AWARD, (3) THE COURT'S FINDING AS TO THE UNTRUTHFULNESS OF DEFENDANT AND THE MISCONDUCT OF DEFENDANT.
A. THE TRIAL COURT'S LACK OF KNOWLEDGE AS TO THE REJECTED PREMARITAL AGREEMENT DID NOT PERMIT A CHESTONE ANALYSIS AS TO NECESSITY AND REASONABLENESS REGARDING THE ISSUE OF REHABILITATIVE ALIMONY.
B. THE PROVISION OF SOUND LEGAL ADVICE AS TO FORESEEABILITY OF SUCCESS AND ECONOMIC FEASIBILITY BASED ON THE FACTS AND EVIDENCE IS REQUIRED UNDER CHESTONE SO AS TO BE BOTH REASONABLE AND NECESSARY.
C. THE ATTORNEY AWARD BASED ON JUDGE COLEMAN'S BELIEF THAT A CLAIM FOR REHABILITATION ALIMONY WAS REASONABLE AND IN GOOD FAITH CAN BE VACATED GIVEN CHESTONE'S REQUIREMENT THAT NECESSARY REASONABLE ATTORNEY FEES ARE BASED ON THE PROVISION OF SOUND LEGAL ADVICE AS TO FORESEEABILITY OF SUCCESS AND ECONOMIC FEASIBILITY AS TO REHABILITATIVE ALIMONY BASED ON THE FACTS AND EVIDENCE AT BAR.
D. DEFENDANT'S UNDOCUMENTED STATUS AND DEFENDANT'S COUNSEL['S] . . . KNOWLEDGE OF SAME PRECLUDES THE ENFORCEMENT OF THE ATTORNEY FEE AWARD GRANTED BY JUDGE COLEMAN ON THE BASIS THAT A CREDIBLE CLAIM FOR REHABILITATIVE ALIMONY EXISTED.
POINT III. DEFENDANT'S EXCEPTIONAL BAD FAITH AS FOUND BY THE TRIAL COURT SHOULD VACATE THE ATTORNEY AWARD UNDER THE CANDOR REQUIREMENTS OF CHESTONE AND THE GOOD FAITH LITIGATION REQUIREMENTS OF KELLY AS IT RELATES TO THE CLAIM [FOR] REHABILITATIVE ALIMONY, WHICH IS THE SOLE BASIS FOR THE GRANTING OF THE ATTORNEY FEE AWARD BY JUDGE COLEMAN.
A. THE GOOD FAITH LITIGATION REQUIREMENT AND PROTECTION OF ADVERSE PARTIES UNDER KELLY.
B. THE TRIAL JUDGE'S CONCLUSION THAT DEFENDANT UNTIL TRIAL CROSS EXAMINATION DID NOT DISCLOSE IN HER CIS INCOME SHE RECEIVES FROM THE DEATH OF HER FORMER HUSBAND, HER BANK ACCOUNT IN BRAZIL, HER PROPERTY IN BRAZIL OR THE INCOME SHE WAS RECEIVING FROM HER MOTHER BY ALLOWING HER TO LIVE THERE IS EVIDENCE OF DEFENDANT'S INTENT TO MISLEAD AND DECEIVE THE COURT WHICH BARS SAID ATTORNEY AWARD UNDER KELLY.
C. DEFENDANT'S MISCONDUCT AS PER THE TRIAL JUDGE'S CONCLUSION THAT DEFENDANT DID NOT DISCLOSE IN HER CIS INCOME SHE RECEIVES FROM THE DEATH OF HER FORMER HUSBAND, HER BANK ACCOUNT IN BRAZIL, HER PROPERTY IN BRAZIL OR THE INCOME SHE WAS RECEIVING FROM HER MOTHER BY ALLOWING HER TO LIVE THERE UNTIL TRIAL CROSS EXAMINATION WAS ENABLED BY DEFENDANT COUNSEL GIVEN HER TESTIMONY THAT THE DOCUMENTATION OF SAID UNDISCLOSED FACTS WERE PROVIDED TO DEFENDANT COUNSEL; THIS EVIDENCE OF THE INTENT TO MISLEAD AND DECEIVE THE COURT BARS SAID ATTORNEY AWARD UNDER KELLY.
POINT IV. THE MANDATE UNDER CHESTONE AS TO PROHIBIT UNREASONABLE LITIGATION AND THE PROTECTION PROVIDED UNDER KELLY GIVEN FINDINGS OF FACT BY THE TRIAL COURT AS TO THE EGREGIOUS BAD FAITH OF DEFENDANT WIFE ARE CODIFIED IN N.J.S.A. 2A:34-23 AND R. 5:3(c) PERMITS THAT SAID NINETEEN MONTH ATTORNEY FEE AWARD SHOULD BE VACATED.
The record discloses that, in April 1999, plaintiff married a Brazilian native, defendant Maria D. Agrait, who apparently supported herself by working as a barmaid and exotic dancer, a fact that may not have been known by plaintiff at the time of the marriage. After twenty-three months, defendant returned to Brazil for the alleged purpose of obtaining a divorce, but she did not do so. During this period, plaintiff claims that he forwarded approximately $40,000 to defendant, allegedly to permit her to learn a trade other than dancing. Defendant re- entered the United States in July 2005 but failed to contact plaintiff until October 2005. Following defendant's refusal to agree to a divorce and a lump-sum property settlement offer by plaintiff of $27,500 plus $300 in attorney's fees, plaintiff filed a complaint for divorce. Defendant filed a cross- complaint seeking the same relief. Thereafter, plaintiff amended his complaint to request an annulment and enforcement of the agreement allegedly reached between plaintiff and defendant before defendant returned to Brazil, pursuant to which the previously mentioned $40,000 had been paid. Family Part Judge Claude M. Coleman denied an annulment and granted a divorce.
According to the written opinion of Judge Coleman, at the time of the divorce, plaintiff was earning $211,000 annually. Defendant claimed to be earning $27,000, but Judge Coleman found that defendant had failed to disclose various sources of unreported income and that her testimony with respect to income was not credible. Judge Coleman declined to equitably distribute the parties' property and declined to order short- term or rehabilitative alimony, finding that defendant was not a dependent, she was employable, and she had offered no plan for the use of rehabilitative funds. However, the judge, relying principally on the disparity in income and earning capacity enjoyed by the parties, and finding that the litigation was conducted in good faith, gave defendant "a modest award" of $14,731.83 in attorney's fees. The judge specifically stated that he did not consider the parties' failure to reach an agreement to resolve the matter without the necessity of trial in granting the fee award. A judgment of divorce containing the attorney's fee provision was entered on May 7, 2007. No appeal was filed.
On October 7, 2008, defendant filed a motion in aid of litigant's rights seeking payment of the attorney's fees plus interest and costs. On November, 4, 2008, more than one year after the judgment of divorce was entered, plaintiff cross-moved to vacate the attorney's fee aspect of the judgment of divorce. Plaintiff contended that defendant's rejection of his pre-trial settlement offer and insistence on trial demonstrated her bad faith, thereby removing any basis for the fee award.
The matter was heard by Judge Sivilli, who denied plaintiff's cross-motion and granted defendant's motion. Judge Sivilli commenced her opinion by noting that if plaintiff had objected to the attorney's fee award, he should have filed a timely motion for reconsideration or an appeal, and that plaintiff had done neither. The judge then addressed plaintiff's substantive issues: (1) whether the defendant's counsel was required to provide a transcript of the trial demonstrating that the settlement offer had been disclosed to Judge Coleman; (2) whether plaintiff's settlement offer was admissible at trial; and (3) whether the court erred in awarding attorney's fees in light of defendant's alleged bad faith. In regard to the first issue, the judge found no obligation on the part of defendant's attorney to produce a trial transcript in connection with defendant's motion to enforce litigant's rights.
She found that the transcript and the disclosure of the settlement offer had no bearing on plaintiff's obligation to pay the court-ordered fees.
Judge Sivilli found, additionally, that any settlement offer made by plaintiff before trial would have been inadmissible at trial under N.J.R.E. 408 and Kranz v. Tiger, 390 N.J. Super. 135, 151 (App. Div.) certif. denied, 192 N.J. 294 (2007). As a final matter, the judge found that the award of counsel fees was made in accordance with law, and that the factors set forth in Rule 5:3(c) had been considered by Judge Coleman. In that connection, the judge rejected plaintiff's reliance on Chestone v. Chestone, 322 N.J. Super. 250 (App. Div. 1999), noting that Chestone concerned a circumstance in which the cost of seeking minimal relief far outweighed the value of that relief, and thus that a fee award could not be justified.
The judge stated:
Plaintiff does not allege that the defendant proceeded with the litigation when counsel fees exceeded the value of the case. Plaintiff alleges that the defendant's rejection of the settlement offer was a poor economic decision and as such he should not have to pay her fees. However, it is in the defendant's discretion to accept or reject a settlement offer. Consequently, she was not required to inform the court of the rejected offer. Therefore, as Judge Coleman said, "the parties' failure to reach an agreement and resolve this matter without the necessity of a trial is not considered in awarding Defendant counsel fees."
Plaintiff has appealed, raising the issues that we have set forth earlier in this opinion. Following our review of the record in this matter, the parties' briefs, and applicable precedent, we affirm substantially for the reasons set forth by Judge Sivilli in her opinion. We are satisfied that, to the extent that plaintiff relies on Rule 4:50-1(a), (b) or (c), his motion is out of time pursuant to Rule 4:50-2. He has failed to establish sufficient grounds for relief pursuant to Rule 4:50- 1(f). We decline to address plaintiff's remaining arguments, determining that they are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).
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