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Agrait v. Boas

August 19, 2010

WILLIAM ENRIQUE AGRAIT, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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