March 3, 2011
STEPHANIE KATZ, PLAINTIFF-APPELLANT,
JEROME B. KATZ, III, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2348-00-E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010 - Decided Before Judges Payne and Koblitz.
Plaintiff Stephanie Katz appeals two portions of three post-judgment matrimonial orders. She appeals an order dated November 20, 2009, ordering her to pay $194 per week in child support by means of wage garnishment, $23,095 in counsel fees and $524.18 in costs by way of monthly payments of $500 directly to defense counsel. This order was amended by an order of December 9, 2009, directing that the payments for counsel fees and costs be made on the fifteenth of the month, beginning January 15, 2010. She also appeals an order of January 22, 2010, denying her motion for reconsideration. In her brief, plaintiff argues that the trial court abused its discretion in awarding counsel fees and costs and miscalculated the child support she owes defendant. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The parties were married on March 24, 1991, and divorced on February 22, 2001, after the birth of two sons. When divorced, the parties shared joint legal custody, with the plaintiff designated as the parent of primary custody. Post-judgment litigation began in 2008 when their elder, fifteen-year-old son was hospitalized after assaulting his mother. The parents disagreed about the appropriate course of treatment. Plaintiff believed the child needed further in-patient psychiatric treatment, while defendant Jerome B. Katz, III wanted his son to come live with him. In August 2008, the parties agreed that defendant would have temporary physical custody of both children. A guardian ad litem was appointed by the court on May 23, 2008. Plaintiff filed two domestic violence complaints that resulted in two temporary restraining orders; one issued on March 17, 2008, and another issued on December 15, 2008. Plaintiff dismissed one TRO prior to trial, after the parties agreed to a consent order, and the court dismissed the other after trial. A consent order was entered on November 13, 2008, granting defendant temporary primary residential custody of the children. Plaintiff litigated the return of her son's laptop computer and filed a motion for alimony, which the court deemed frivolous. R. 1:4-8. The court found that both parties were earning approximately the same amount when the motion was decided.
Plaintiff then filed a motion seeking to pay reduced child support to compensate for the below-guidelines child support she claimed defendant had paid when she had custody of the children. Plaintiff claimed that defendant had failed to annually update her regarding his income, which had risen from an imputed $48,000 at the time of the divorce to $83,000. In their property settlement agreement, the parties had agreed to exchange annual documentation of earnings for child support purposes. The court deemed this application meritless as retroactive adjustment of child support is not permitted. N.J.S.A. 2A:17-56.23(a).
Finally, on the custody hearing date of October 6, 2009, plaintiff consented to allow defendant continued residential custody of the two boys under virtually the same terms requested by defendant the prior year. After the court calculated child support pursuant to the New Jersey Child Support Guidelines, Rule 5:6-A, and awarded counsel fees, plaintiff filed two motions for reconsideration, which the court denied. The court ordered plaintiff's counsel to pay defendant's counsel fees and not charge plaintiff for the second motion as it was improperly based on a hearsay certification prepared by plaintiff's counsel.
Plaintiff was represented throughout this post-judgment litigation by an attorney who certified that he was friends with her "boyfriend." The lawyer charged her little or no counsel fees. Defendant was represented by a family law firm, which charged established rates.
On appeal, plaintiff disputes the child support calculation in that she maintains the court did not use the proper number of overnights or consider her mandatory payroll deductions in its calculations. Pursuant to the Guidelines, the court properly gave plaintiff credit for one-half of her overnight visitation with her younger son (not counting vacation time) because plaintiff does not visit at all with her older son. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2481-82 (2011). The court also properly considered her payroll deductions and did not ignore any "mandatory deductions" taken from plaintiff's paycheck.*fn1
Plaintiff also contests the court's award of counsel fees. The court did not abuse its discretion in awarding counsel fees to defendant. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The appellate court should only overturn the trial court's determination on fees "on the rarest occasion," and only for a clear abuse of discretion. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2009) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The court should consider the following factors:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
Even though the decision on fees is discretionary, the court must consider the above factors in making its determination. Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 5:3-5 (2011). If deemed just, an award may be made in favor of either party, whether or not they prevailed. See Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002). In this case the court found that the parties were in a similar financial situation, that plaintiff had at most a total of $10,000 in counsel fee expenses for the post-judgment litigation, while defendant had been charged about $85,000 in reasonable counsel fees. Defendant had paid about $60,000 of that amount and had an outstanding balance of approximately $24,000. The prior court handling this matter entered an order denying counsel fees on July 23, 2008. This trial court granted counsel fees from that date until its decision on November 20, 2009. The court found that defendant had litigated in good faith while plaintiff made meritless applications for alimony and retroactive adjustment of child support. The court found that plaintiff should have acknowledged her consent to the custody arrangement when she knew she did agree and resolved any other outstanding issues subsequently. The court found that the cost of litigation for defendant was enhanced by the unnecessary prolongation of custody litigation. Total counsel fees and costs awarded were $23,619.18, which the court ordered be paid at the rate of $500 per month. The court carefully reviewed the factors regarding payment of counsel fees, exercising its discretion in a thoughtful manner.