On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1500-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2010 - Decided Motion for reconsideration granted. Resubmitted February 8, 2011 - Decided Before Judges Grall and C.L. Miniman.
Plaintiff George Osborne appeals from an order awarding defendant Kymberly Osborne a $17,500 counsel fee award in their matrimonial action. With the exception of a dispute about their interest in real estate involving a third party that was settled in an action filed in General Equity, the parties were able to reach an agreement on all other issues incidental to their divorce. Their agreement was incorporated in the dual final judgment of divorce filed on January 6, 2010. We affirm the award of the counsel fees but modify the sum awarded.
George and Kymberly were married on November 23, 2002. There were no children born of this marriage. They each have one child born of a previous relationship. George's daughter was born in 1996, and Kymberly's son was born in 1994.
Kymberly was employed as a legal secretary earning $40,000 per year until she resigned in 2003. Kymberly has lupus and rheumatoid arthritis, suffers from debilitating seizures, takes time-released morphine daily and is medicated twenty-four hours a day. In May 2007, she was awarded permanent Social Security disability benefits and since that time she has received $16,000 per year. The father of her child pays her $285 child support per week, and pursuant to her agreement with George, Kymberly received $1500 alimony per month until April 16, 2010, and is entitled to receive $1300 per month until April 23, 2013.*fn1
Without considering child support and including alimony of $1300 per month, her income is about $31,600 per year until April 2013.
George is employed by a company he founded with his sister and a friend. He reported gross income of $74,450 in 2007 and $75,800 in 2008, making his income roughly $75,000 per year. In addition to his alimony obligation to Kymberly, George has a $155-per-week child support obligation for his daughter and pays a portion of her medical, school, and camp expenses. Without deducting his child support payments, his income after payment of $1300 alimony per month is about $59,400 per year.
The parties separated on April 1, 2008, almost a year after the government awarded Kymberly benefits. With the exception of personal property and a retirement account with a value of less than $35,000, which the parties agreed to divide, there were no marital assets.
Because George contends that Kymberly's litigation conduct is pertinent to counsel fees, we provide the details that can be discerned from the record provided on appeal. George filed his complaint for divorce on April 11, 2008. Kymberly's counterclaim was filed about three months later pursuant to a consent order vacating a default entered against her and extending her time to file responsive pleadings.
Under the initial case management order, case information statements (CISs) were to be filed and interrogatories and notices to produce exchanged by September 19, 2008. Responses were due by December 5, 2008. Both parties missed this deadline. A second case management conference was held on December 18. George had filed his CIS and served interrogatories and a notice to produce, but Kymberly had not. The December 18, 2008 order requires Kymberly to file her CIS and both parties to answer interrogatories and comply with document demands by January 9, 2009. Kymberly served interrogatories on January 2, and did not comply with the remainder of the order. George did not answer by January 9.
George moved for relief, and Kymberly did not oppose the motion. By order of April 3, 2009, the judge struck Kymberly's answer and counterclaim for failure to file a CIS and respond to George's interrogatories and notice to produce, and he awarded George a $737 counsel fee, payable within twenty days.
On May 29, 2009, another judge reinstated Kymberly's answer and counterclaim subject to payment of a reinstatement fee. The judge further directed Kymberly to provide, within thirty days, complete responses to George's interrogatories and notice to produce. Her response was to include a copy of her 2007 tax form and income information and copies of her medical records and bank statements or ...