February 14, 2011
ERIC MICHAEL GOTTBETTER, PLAINTIFF-APPELLANT,
MARCIE F. GOTTBETTER, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1660-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2011
Before Judges Cuff and Fisher.
In this appeal, we reject plaintiff's argument that the trial judge abused her discretion in awarding counsel fees to defendant and, therefore, affirm.
The parties were married in 1995 and had two children. They were divorced by way of a dual judgment entered on January 29, 2008. The judgment incorporated their settlement agreement, which required that plaintiff pay defendant limited duration alimony for nine-and-one-half years; plaintiff was obligated to pay defendant $55,000 annually for the first three years, $50,000 annually for the following three years, and $45,000 annually for the remainder of the alimony term.
Within a year of the entry of judgment, plaintiff filed the first of a series of post-judgment motions seeking a modification of the monetary obligations imposed on him by the agreement based on his consulting firm's loss of its only client. Plaintiff asserted that his business of selling sports and entertainment tickets on line was a "non-issue" because he "had never made a profit nor had any income from the ticket business." In light of these contentions, the trial court temporarily reduced plaintiff's annual alimony obligation from $55,000 to $40,000 pending a plenary hearing.
Based on discovery obtained from plaintiff, as well as information subpoenaed by defendant from PayPal, defendant's forensic accountant provided an initial report, which suggested plaintiff earned a considerable profit in selling sports and entertainment tickets. A supplemental report provided by defendant's accountant in December 2009 asserted that from April 1, 2008 to October 14, 2009, plaintiff's PayPal account received deposits of $392,693, and plaintiff had made ticket purchases during the same time frame of $126,776, suggesting income for that period of $265,917 or in excess of $14,000 per month.
Plaintiff's earlier sworn contention that he "had never made a profit nor had any income from the ticket business" was not only forcefully challenged by defendant's accountant, but was belied by plaintiff's own accountant, who reported plaintiff received income from his ticket business during 2008 and 2009 of approximately $3500 per month. Plaintiff's accountant based this determination on information obtained from PayPal, which suggested income to the ticket business, after deductions for ticket purchases, of slightly more than $6000 per month; the income attributed to plaintiff from that source was reduced by the accountant because plaintiff allegedly had a partner. On the eve of the plenary hearing, plaintiff's accountant adjusted his figures upon learning that plaintiff received additional receipts from sources other than PayPal.
On the day scheduled for the plenary hearing, plaintiff's attorney requested leave to withdraw, citing a "professional conflict and ethics issue" that had arisen. In a single order entered that day, the judge: granted counsel's request to withdraw as plaintiff's attorney; memorialized plaintiff's withdrawal of his motion for a reduction of his alimony and child support obligations; vacated the order that had temporarily reduced the alimony obligation; provided for payment to defendant of that amount of alimony that had not been paid due to the temporary reduction; and scheduled the submission of defendant's counsel fee request and plaintiff's response.
Defendant filed a timely application, seeking an award of $125,528 in counsel fees, expert fees and other costs, which the judge granted in full for reasons set forth in a written opinion. Plaintiff appealed the order awarding fees, presenting the following arguments for our consideration:
I. [THE JUDGE] DID NOT TAKE INTO CONSIDERATION THE FINANCIAL CIRCUMSTANCES OF THE PLAINTIFF AND THE ABILITY OF THE PLAINTIFF TO PAY HIS OWN FEES OR TO CONTRIBUTE TO THE FEES OF THE OTHER PARTY.
II. THE DEFENDANT HAS NOT USED ANY OF HER ASSETS TO PAY FOR HER LEGAL FEES. A THIRD PARTY PAYS HER LEGAL FEES.
III. [THE JUDGE'S] DECISION TO AWARD LEGAL FEES WAS BASED, IN PART, ON THE MISREPRESENTATION OF THE TRUTH OR FRAUD, PERPETRATED BY [DEFENSE COUNSEL], FOR THE FINANCIAL BENEFIT OF HIS CLIENT.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments regarding Point I.
Plaintiff is technically correct that, in her written opinion, the judge discussed all the factors relevant to an application for counsel fees except his ability to pay. See R. 5:3-5(c). However, it is plainly evident to us that, although that factor may not have been expressly discussed in her opinion, the judge considered it. The record reveals that plaintiff's claim of an inability to pay alimony as originally agreed was based upon the allegation that he was without sufficient income and that his ticket business was a "non-issue" because it generated no income. After considerable discovery and expense, plaintiff's contentions unraveled; his own accountant demonstrated that plaintiff earned substantial income through his ticket business. That same evidence more than amply supports a conclusion, which the judge implicitly found, that plaintiff had the ability to pay defendant's counsel fees.
Plaintiff's attempt to perpetrate a fraud must come at a price and the judge's award, in light of all the factors expressly and implicitly considered, was reasonable and necessary to compensate defendant for having to respond to plaintiff's false allegations.
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