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Robert Francis Bello v. Angela Marianna Bello

April 1, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-77-08.

Per curiam.


Submitted: March 16, 2011 - Decided:

Before Judges Simonelli and Fasciale.

In this post-divorce judgment matrimonial case, defendant-wife appeals from paragraph four of a March 5, 2010 order awarding her $1000 in counsel fees, and from a May 12, 2010 order denying reconsideration. We reverse and remand for the judge to determine a suitable amount of fees.

On December 2, 2008, the parties divorced after thirteen years of marriage. The husband has repeatedly failed to comply with the parties' property settlement agreement (PSA) and, as a result, the wife has filed five successful enforcement applications since the entry of the judgment of divorce (JOD). The wife was awarded counsel fees after each application.

In January 2010, the wife filed her fifth motion to enforce the PSA. She requested an order: (1) compelling the husband to pay all arrearages (approximately $9000) and previously ordered counsel fees ($30,358.75); (2) permitting her to execute on his business accounts and to garnish his wages; (3) compelling him to appear in court for supplementary proceedings; (4) issuing an arrest bench warrant if he continued to default on his support obligations; and (5) compelling additional counsel fees associated with the motion. The husband filed a cross-motion requesting an ability-to-pay hearing and a downward modification of his child support and alimony obligations.

The motion judge conducted oral argument on March 5, 2010, and rendered an oral opinion that day denying the husband's cross-motion in its entirety. The judge concluded that an ability-to-pay proceeding was unnecessary, and found that "there [are] plenty of resources from which the [husband] has to pay his obligations." Moreover, the judge was "shocked . . . that [the husband has] an $820-a-month auto payment," and found that if the husband chose to drive a luxury car "that [decision] should not be at the expense of [the wife.]" The judge compelled the husband to pay his arrears or be subject to arrest, and awarded the wife $1000 in counsel fees associated with her fifth motion. In limiting the amount to $1000, the judge stated that "I don't want to cut off support for the [wife] in favor of counsel fees."

The wife filed a motion for reconsideration of the $1000 counsel fees she obtained contending that the amount was too low given the husband's lavish lifestyle and significant assets. On May 12, 2010, the judge denied the reconsideration motion on procedural grounds. On July 6, 2010 the judge issued an amplification of reasons for the May 5, 2010 order pursuant to Rule 2:5-1(b) and stated that the reconsideration motion was filed timely, but he did not consider it on the merits because of the pending appeal, which defendant had filed on June 1, 2010.

On appeal, the wife argues that the $1000 counsel fees award is not supported by the credible evidence, and she requests that we remand the matter for the judge to recalculate the proper amount.

Our review of the Family Part's fact-finding function is restricted so that "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, due to the family court's special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. We grant substantial deference to a trial court's findings of fact, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). However, conclusions of law are not afforded discretion and are reviewed de novo. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

An award of counsel fees in a matrimonial matter is discretionary. R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). It will not be disturbed absent a showing of abuse of discretion. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). If the judge fails to make findings to support an award of counsel fees, the award must be set aside. Gordon v. Rozenwald, 380 N.J. Super. 55, 79 (App. Div. 2005).

After carefully considering the entire record, we conclude that the judge's reasoning for limiting counsel fees to $1000 contradicted his finding that the husband had a substantial income and several assets. The husband lives in a home worth $1,000,000 with a tennis court and swimming pool, drives a 2007 Mercedes sedan, owns two other cars, pays $1500 per month for his mortgage, is the sole proprietor of Mendham Eyecare business, earns more than $200,000*fn1 a year, and refused to pay his child support and alimony obligations. In addition to finding that the husband had "plenty of resources to pay his obligations," the judge found that a review of the husband's case information statement demonstrated "at least $14,000 of excess [money available]."

We therefore reverse because the judge's finding that the husband cannot afford a fee greater than $1000 is "manifestly unsupported by or inconsistent with the competent, ...

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