On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-507-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded: Resubmitted: May 31, 2011
Before Judges A.A. Rodriguez, C.L. Miniman and LeWinn.
Plaintiff Pamela Donfield (Pamela) appeals from a final order denying her application for counsel fees in prosecuting her action for dissolution of her marriage to defendant Robert Donfield (Robert). Because we find no abuse in the exercise of the judge's discretion in denying an award of counsel fees, we now affirm.
The parties were married in 1997; three daughters were born of the marriage. Pamela, who has a college degree, left the workforce when their first child was born and remained a homemaker and the primary caretaker until she filed a Complaint for Divorce in October 2008. The divorce was acrimonious, and the parties had numerous disagreements over parenting time for Robert, his alleged alcohol use and his gambling, alleged domestic violence, and assorted financial matters.
The parties attended mediation but were not able to resolve their disagreements. They then consulted a custody expert, Dr. Amie Wolf-Mehlman, who wrote an evaluation and recommended a resolution of the parenting-time issues. Still, the matter was not resolved. The parties also hired competing experts to evaluate Robert's alleged alcohol dependency. The parties ultimately agreed by consent judgment to a resolution of the parenting-time dispute, with Robert receiving thirty-six percent of overnight parenting time plus additional dinner visitations.
Following more than a year of discovery, motions, orders, expert reports, and mediation, the parties were divorced on February 11, 2010. At that time, the judgment of divorce was from bed and board (JOD) and incorporated the parties' property settlement agreement (PSA). On June 11, 2010, the JOD was converted to an absolute divorce.
Pursuant to the PSA, $200,000*fn1 was determined to be Robert's annual earned income; $25,000 in earned income was imputed to Pamela for the first three years, and $50,000 was imputed to her thereafter. The parties agreed that Robert would pay limited-duration alimony and child support. Alimony was set at $57,750 per year for three years and then $50,000 per year for seven years. The parties also agreed that, if Robert earned between $230,000 and $275,000 in a given year, the alimony payments would increase. Child support was initially set at approximately $1040 per month. The parties agreed that if Robert's income exceeded $200,000 in any given year, the child support payments would be recalculated.
Further, the parties agreed to the equitable distribution of their property. Each would have an opportunity to buy out the other's interest in the marital home, which was valued at $825,000 and encumbered by a mortgage and two home-equity lines of credit. Expert fees were paid out of the home-equity line of credit; Robert was responsible for paying two-thirds of this debt. The consent judgment resolving the custody and parenting time issues was incorporated by reference into the PSA. However, Pamela and Robert did not agree about the payment of attorneys' fees. They merely agreed in the PSA to submit certifications of services to the Family Part judge responsible for their divorce, "who shall determine the issue."
In the subsequent certifications in support of their respective applications for fees, both parties and their attorneys asserted that the other party engaged in bad faith and harassment, which resulted in driving up the costs of counsel and expert fees. Pamela urged that Robert delayed their divorce and drove up legal fees with futile attempts to reconcile and a refusal to acknowledge or deal with his alcohol use and his gambling. Pamela claimed that Robert's bad-faith conduct included baseless custody claims; failure to comply with the recommendations of substance-abuse and custody experts; his refusal to settle the custody and ...