April 21, 2011
BARBARA MANNING, PLAINTIFF-APPELLANT,
JOHN MANNING, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-6706-93-G.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically March 25, 2011 --
Before Judges Carchman and Messano.
Plaintiff Barbara Manning, now known as Barbara Carroll, appeals from an order of the Family Part that granted defendant John Manning's application for counsel fees. As to the amount of such fees, the order provided only "Defendant's attorney's fees and costs shall be paid by Plaintiff." No specific amount was set forth nor analysis of the demanded fees considered on this record. We conclude in the first instance, on the facts presented, that defendant was not entitled to fees. We reverse.
These are facts adduced from the record. The parties were divorced in 2004. Three daughters were born of the marriage. By order of July 20, 2007, only the oldest child was deemed emancipated, and defendant was ordered to pay $592 per month in child support for the other two. Defendant, who was in substantial arrears, was ordered to pay an additional sum for arrears in the amount "of $50 per month until the oldest unemancipated child is emancipated, at which point the basic child support will be reduced to $296 per month and the arrears payment will be increased to $296 per month." Upon the second child's emancipation, one-half of the child support payment would be credited toward defendant's arrears. Similarly, upon the youngest child's emancipation, child support payments would cease, and the entire $592 per month would be applied towards arrears. The arrears were fixed at $14,198.28.
In addition, the 2007 order obligated "plaintiff to provide the defendant in writing the date of graduation when each child becomes emancipated." Apparently, defendant did not have a relationship with his daughters, and was solely dependant upon plaintiff to inform him of their graduation as the event triggering emancipation.
The middle daughter graduated from college on May 18, 2008, and the youngest on May 20, 2009. Plaintiff did not inform defendant of these events, and defendant continued to make payments, which were considered by the Probation Department to be regular child support payments.*fn1
According to defendant, he first became aware of the issue in December 2009, when there was a garnishment of his workers' compensation and disability payments.
Defendant's counsel inquired as to the children's emancipation on December 29, 2009, and again on January 7, 2010, although the latter letter limited the inquiry to the youngest child. On the same day, plaintiff's counsel responded that the youngest child "graduated on May 20, 2009." On January 19, 2010, defendant requested information as to the middle child, and plaintiff's counsel responded the same day with the requested information.
A series of letters followed proposing a settlement of defendant's
outstanding obligations. After initially not
responding, plaintiff rejected the settlement proposal*fn2
and set forth her calculation of the arrears. After
considering the emancipation dates, each party arrived at a calculated
arrearage amount. Plaintiff claimed the arrears were $8,494.07, while
defendant asserted that they were $7,222.63. Defendant later
recalculated and claimed that the arrears were only $6,216.61. That,
too, was revised to reflect, according to defendant, arrears of
By letter of May 20, 2010, plaintiff rejected defendant's settlement proposals and asserted that the only issue was the fixing of arrears. She noted that she "is more than willing to have the outstanding balance of arrears judicially reviewed and reduced to an Order." Again, she rejected defendant's various settlement offers as incorporated in proposed "consent orders."
Defendant filed a motion seeking the following relief:
1. Holding the Plaintiff in violation of litigant's rights for her willful failure to comply with the terms and provisions of the prior Order of this Court entered on July 20, 2007;
2. Directing the Probation Department to adjust its records to reflect the emancipation of the parties' eldest daughter, Melissa Manning, effective June 2005 as set forth in the prior Order of this Court entered on March 17, 2006;
3. Directing the Probation Department to adjust its records to reflect the emancipation of the parties' daughter, Amy Manning, effective May 18, 2008;
4. Directing the Probation Department to adjust its records to reflect the emancipation of the parties' daughter, Samantha Manning, effective May 20, 2009;
5. Directing the Defendant's Probation account to accurately and appropriately reflect total outstanding arrears in the amount of $6,216.61 effective June 1, 2010 and giving credit for any additional credits which may be paid to the Defendant's Probation account from that date until the date of entry of any Order in this matter;
6. Directing that the Defendant's monthly obligation to the Probation Department shall be $592 per month, the total of which shall be applied toward his outstanding arrears, and which shall not be subject to any increased modification for cost of living or otherwise;
7. Directing the Plaintiff pay all counsel fees and costs incurred by the Defendant in connection with seeking enforcement of the prior Order of the Court, and specifically from December 29, 2009 through the return date of this matter;
In support of his motion, defendant's attorney filed an affidavit of services seeking the sum of $9,406.50 including fees and disbursements.
The judge found that plaintiff acted in bad faith by compelling defendant to seek information which she had an affirmative duty to provide. Specifically, the judge stated that "I think that the degree to which the fees were incurred to enforce an existing order, I am very troubled by her behavior and her lack of behavior." She also stated that the finding of bad faith was "under Rule 5:3[-]5" and the order stated the fees were awarded "[p]pursuant to R. 5:3-5 . . . ."
The judge inquired whether plaintiff wanted a hearing to determine the parties' ability to pay, and plaintiff's counsel stated "I don't want to further -- I don't want to make this thing bigger than it is. I'm trying to keep it restrained. But if you want to have --" The judge then ordered a hearing, stating that defendant, who resides in Florida and has a disability, could appear by phone. Plaintiff's counsel requested interrogatories as to the parties' finances. The judge then changed her mind and after hearing representations as to defendant's medical condition said:
Instead of the ability to pay hearing . . . I'm making a ruling under Rule 5:3-5. I do find that the financial circumstances of Mr. Manning -- he is on disability, he lives in Florida, he does not have the ability to pay his own fees. I think this was not brought in good faith, this motion. I'm sorry, I think he had to bring this motion because Ms. Manning was not acting in good faith, and she had to -- he had to incur these fees to enforce and compel her to comply with prior orders.
I'm giving you Counsel fees. Counsel, you can file a motion for reconsideration, or you can appeal my decision.
The judge did not resolve the issue of arrears but set forth the dates of emancipation, ordered that child support "should have been terminated as of that date" and then ordered that "Probation shall adjust its records accordingly." Finally, as to counsel fees, the judge ordered:
Pursuant to R. 5:3-5, this Court rules that Mr. Manning does not have the ability to pay his own fees. This Court finds that Ms.
Manning was not acting in good faith, and Mr. Manning had to incur fees in order to compel her to cooperate. Defendant's attorney's fees and costs shall be paid by Plaintiff.
On plaintiff's application, that portion of the order was stayed pending appeal. This appeal followed.
On appeal, plaintiff asserts that the judge abused her discretion in awarding counsel fees. We agree.
We first set forth our standard of review. "[A] reviewing court will disturb a trial court's award of counsel fees '"only on the rarest of occasions, and then only because of a clear abuse of discretion."' Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372, 386 (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rending v. Panzer, 141 N.J. 292, 317 (1995))).
An clear abuse of discretion occurs when the "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" U.S. v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flag v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)). We "will not interfere unless the trial judge has 'pursue[d] a manifestly unjust course.'" Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 330 (App. Div.) (alteration in original) (quoting Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 36-37 (App. Div. 1998)), certif. denied, 195 N.J. 520 (2008).
Our review of factual findings is also limited. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). Generally, "[a]n appellate court must defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010). Further, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," including matrimonial actions, "appellate courts should accord deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original) (quotations omitted). We will intervene only when the trial judge's factual findings and legal conclusions are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Klumpp v. Borough of Avalon, 202 N.J. 390, 412 (2010) (quotations omitted).
Although we question the judge's findings as to defendant's ability to pay, which were made after the judge had initially determined to hold a hearing on that issue and then reversed herself, we need not address that issue as we conclude that not only did the judge not make a specific award of fees in the order, but the judge's initial finding of bad faith was in error.*fn3
The dispute in question here arose in the context of plaintiff's obligation to advise defendant as to the emancipation of two of the parties' children. Plaintiff failed to do so, prompting defendant to secure the services of counsel. This resulted in two letters requesting the information. The letters were responded to within days, and the lack of compliance with the order was cured. What followed from that was an extended negotiation to arrive at the correct figures reflecting defendant's arrearages and allocation of payments to arrearages as opposed to current support. Included in the negotiations were proposed consent orders submitted by defendant, which were rejected by plaintiff. The basis of the rejection was an absence of agreement as to the arrearage amount. This was an issue of legitimate dispute and disagreement. Ultimately, the ensuing dispute dealt with the quantum of defendant's violation of the order, not plaintiffs.
We do note that plaintiff submitted a certification that was not addressed by counsel indicating that defendant had a conversation with the children and knew of the emancipation. The judge did not comment on that submission but focused on the language of the order that imposed an affirmative obligation on plaintiff to inform defendant in writing of those dates. We do not fault the judge for requiring adherence to the letter of the 2007 order, but in finding bad faith, the issue of defendant's actual knowledge of graduation dates would have been a relevant consideration before the award of fees. Likewise, the unique facts of this case reflect that the emancipation dates do not relieve defendant of all financial responsibilities since even after the adjustment for the emancipation dates, defendant still had a arrearage balance.
The judge's summary statement that plaintiff acted in bad faith by failing to advise defendant of the emancipation dates, and that such action supports an award in excess of $9,000 in counsel fees is not supported by the record and amounts to an abuse of discretion. The award of this amount borders on the punitive, a circumstance that we have previously rejected as a basis for awarding fees. See Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999) (cautioning that a party may not be punished by an award of counsel fees which are grossly disproportionate to the amount in dispute); Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997).
Finally, the judge failed to make a definitive award. In her July 9, 2010 order the judge set forth conclusions that defendant "does not have the ability to pay his own fees"*fn4 ;
plaintiff "was not acting in good faith"; and defendant "had to incur fees in order to compel her to cooperate." The order then provided: "Defendant's attorney's fees and costs shall be paid by Plaintiff." No analysis was conducted as to the discrete elements of the ordered fees but more importantly, the judge did not articulate a fixed amount for the fees.
The order was incomplete.*fn5 An award of counsel fees should include a specific amount ordered. Not only does this provide for a final order but also provides counsel with an enforceable order on its face.
That portion of the July 9, 2010 order awarding defendant counsel fees is reversed.