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Stephanie Decilveo, N/K/A Woolf v. Joseph Decilveo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2012

STEPHANIE DECILVEO, N/K/A WOOLF, PLAINTIFF-APPELLANT,
v.
JOSEPH DECILVEO, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1506-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 20, 201l

Before Judges Payne, Simonelli and Hayden.

In this post-judgment matrimonial matter, plaintiff Stephanie Woolf appeals from the October 29, 2010 Family Part amended order, which denied her motion for enforcement of litigant's rights and attorneys fees and granted defendant Joseph Decilveo's cross-motion for enforcement and attorneys fees. Having reviewed the record in light of the applicable legal principles, we affirm.

I.

From the record on appeal we discern the following pertinent facts. On April 9, 2008, plaintiff and defendant were divorced after twenty-five years of marriage. Under the terms of their property settlement and support agreement (PSSA), incorporated into their judgment of divorce, each party received substantial assets, and defendant agreed to pay plaintiff a minimum of $173,250 per year in alimony as well as a portion of any earned income in excess of $550,000. Each party also agreed to timely exchange all necessary financial and tax information.

In addition, the PSSA provided that defendant would pay child support to plaintiff until the emancipation of the youngest of their four children. In the PSSA, the parties determined defendant would act as custodian of the three unemancipated children's fully-funded trusts. Defendant agreed to establish from the fully-funded trust a separate $10,000 trust account for each child with plaintiff as the custodian and to replenish the funds in the account within eight days of the balance falling below $5,000.

Finally, paragraph seven of the PSSA provided:

In the event that any differences arise out of the interpretation, construction or operation of this Agreement, the parties further specifically agree as follows:

(a) They shall first attempt in good faith to resolve such differences amicably and directly with each other, retaining the right to seek advice of counsel;

(b) If they are unable to resolve any dispute between themselves or with the assistance of counsel, or through mediation, either side may submit same to a Court of competent jurisdiction for resolution.

On January 26, 2010, plaintiff filed a motion for enforcement of litigant's rights with thirty-four specific requests for relief, and defendant filed a cross-motion for enforcement of litigant's rights. On March 19, 2010, the motion judge ordered the parties to contact a mediator within fourteen days, attend mediation, and return to court on June 1, 2010. However, the parties did not attend mediation within the ordered time frame but filed new nearly-identical motions.

On June 23, 2010, Judge McGrogan denied both parties' motions and ordered them to comply with the March 19, 2010 order to attend mediation. Consequently, the parties participated in mediation in July 2010 and reached a comprehensive agreement on the disputed matters. While the mediation settlement was being drafted, an issue arose concerning whether and when additional alimony and child support over the base amount was payable to plaintiff due to payments defendant had received from his new employer in 2010. The parties had not addressed this fresh dispute during the mediation conference.

On August 13, 2010, Judge McGrogan entered the Consent Order, which memorialized the parties' mediation agreement. In the Consent Order, the parties acknowledged that they had addressed and resolved all issues raised in their January and June 2010 motions except for the new issue of supplemental support. The parties settled a number of disputed issues by defendant agreeing to pay plaintiff $40,000 by August 9 or $50,000 if payment was made after that date.

II.

Ten days after the Consent Order was entered, on August 23, 2010, plaintiff filed the instant motion for enforcement of litigant's rights. In her moving papers, plaintiff made thirteen requests for relief. Many of the requests had been included in the two prior motions, including requests to require defendant to become current in alimony and child support, to compel defendant to pay base alimony and child support through the Probation Department, to transfer control of the children's trust accounts to plaintiff, and to restrict defendant's contact with plaintiff. The plaintiff also sought relief for events subsequent to the mediation, including compelling defendant to pay $10,000 for the late wire transfer completion of the $40,000 payment, requiring defendant to replenish the son's college account and to deposit $100 per day from his own funds for every day the balance was below $5,000, and requiring defendant to pay all future bank transfer fees and to reimburse plaintiff $25. Plaintiff also asked the court to order defendant to pay additional alimony and child support based upon extra income he had received during 2010.

In her motion papers, plaintiff maintained that, pursuant to the mediation agreement, defendant owed her an additional $10,000 because she had received the $40,000 payment, due on August 9, one day after the agreed-upon deadline. However, defendant contended that plaintiff's and her counsel's bad faith refusal to cooperate with the transfer directly caused the unnecessary delay in its completion. In support, defendant submitted evidence showing that the funds had been in defense counsel's trust account two weeks before the due date, defendant's attorney notified plaintiff's attorney that the funds were ready and requested, but did not receive, assistance to timely complete the transaction, and the transfer was attempted but not effectuated on the due date because it was rejected by plaintiff's bank.

Next, plaintiff contended that in August 2010 she had been charged a $25 wire transfer fee in violation of previous orders requiring the parties to share equally in all bank fees. In response, defendant pointed out that plaintiff had recently required that the funds be deposited into a new account in a different bank, which resulted in the transfer fee. Additionally, plaintiff asserted that, a few days after the mediation, defendant did not replenish an $1,890 college expense in the parties' son's account within eight days of notice, which allowed the account balance to dip below $5,000.

Defendant then filed a cross-motion in response, opposing the motion and requesting that plaintiff be directed to attend economic mediation and be held in violation of the PSSA for not doing so before filing the motion. He also sought an order sanctioning plaintiff for intentionally disparaging defendant to the children in violation of previous court orders. Defendant reported that, as a result of plaintiff's speaking with her son about the trust account, he sent a text message to defendant, reading: "Don't short my funds. And maybe I'll talk to you." In addition, defendant sought counsel fees and costs.

Judge McGrogan heard limited testimony and oral argument on October 1, 2010 and October 26, 2010. In her October 26, 2010 order, she granted plaintiff's request to have the alimony and child support paid through the Probation Department. Additionally, the judge determined that plaintiff and her attorney acted in bad faith in not cooperating in the transfer of the $40,000 and denied plaintiff's request for an additional $10,000 due to the late transfer. In her written decision, Judge McGrogan wrote:

[W]hen [defendant] and his attorneys tried to comply with the Consent Order to wire funds to [plaintiff], neither [plaintiff] nor her attorneys cooperated with the process. It is clear from the documentation provided that neither [plaintiff] nor her attorneys had any intention to act in good faith to get the funds deposited. [Plaintiff] would have benefited by the less than twenty-four hour delay in receipt of the monies into her account. In fact, she asked this Court to sanction [defendant] due to this delay.

The judge also rejected plaintiff's request to be made custodian of her children's trust accounts because plaintiff had not provided any evidence that the children did not have sufficient money for their education and expenses. The judge denied all of plaintiff's other requests for relief, finding that they either involved matters resolved in the prior mediation and Consent Order, or matters that arose after the mediation and thus, pursuant to the PSSA, should first be mediated.

Furthermore, Judge McGrogan granted defendant's cross-motion to hold plaintiff in violation of the PSSA for failure to attempt mediation prior to filing her motion and directed the parties to attend mediation "to resolve any and all outstanding economic issues between the parties." The judge also found that the son's text message to defendant, which plaintiff acknowledged she knew about, showed that plaintiff was attempting to alienate her son from defendant. Finally, the judge granted defendant's request for counsel fees and costs, ordering plaintiff to pay $8,018 in counsel fees incurred by defendant in opposing plaintiff's motion.

On October 29, 2010, in order to accurately reflect her decision at the October 26 hearing, Judge McGrogan entered an Amended Order, restraining each party from making disparaging remarks about the other in front of the children and restraining plaintiff from "embroiling their son in the parties' contretemps." This appeal followed.

III.

We begin with some well-established principles. In general, a trial court's factual findings will be binding on appeal so long as they are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). The findings should only be disturbed if "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, since the Family Part has special expertise in family matters and has had the opportunity to see and hear the witnesses testify firsthand, its fact-finding should be accorded particular deference on appeal. Id. at 413. However, the Family Part judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" on appeal. Manalapan Realty v. Manalapan Twp. Committee, 140 N.J. 366, 378 (1995).

We also observe that New Jersey has a strong public policy favoring the enforcement of property settlement agreements. Matrimonial settlements are "'entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just" because they are "'essentially consensual and voluntary in character.'" Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Such agreements "are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999). Consequently, we accord "particular leniency to agreements made in the domestic arena, and likewise allow[] judges greater discretion when interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992).

Plaintiff presents the following contentions for our consideration:

POINT I

PLAINTIFF MUST NOT BE PENALIZED FOR REQUESTING ENFORCEMENT OF HER LITIGANT'S RIGHTS; THIS COURT MUST REVERSE THE TRIAL COURT'S FINDINGS IN THIS MATTER AS SAME CONSTITUTE AN ABUSE OF DISCRETION; FAILURE TO ENFORCE HAS THE NET EFFECT OF NULLIFYING THE PARTIES' AGREEMENT.

A. PLAINTIFF IS ENTITLED TO ENFORCEMENT OF THE PARTIES' PSSA AND SUBSEQUENT ORDERS.

B. THE TRIAL COURT'S DETERMINATION OF COUNSEL FEES WAS FURTHER CONTRARY TO THE EVIDENCE BEFORE THE COURT.

C. THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE DEFENDANT'S BAD FAITH IN MAKING ITS DETERMINATION OF COUNSEL FEES.

POINT II

THE TRIAL COURT ERRED IN ALLOWING DEFENDANT TO INTRODUCE INFORMATION, NOT PART OF HIS PAPERS, AND TO TESTIFY WITHOUT ALLOWING PLAINTIFF THE OPPORTUNITY TO RESPOND, AND SUCH ACTION DEMONSTRATES THE TRIAL COURT'S BIAS TOWARD PLAINTIFF.

POINT III

THE TRIAL COURT'S REFUSAL TO ENFORCE THE PARTIES' PSSA IS CONTRARY TO THE PUBLIC POLICY OF THE STATE OF NEW JERSEY.

Upon careful review, we are satisfied that the record contains adequate support for the judge's findings. We are not persuaded by plaintiff's arguments and affirm substantially for the reasons advanced in Judge McGrogan's written decision of October 26, 2010. We add only the following comments.

In their PSSA the parties agreed to resort to the court only if unable to resolve disputes "between themselves, or with the assistance of counsel, or through mediation." Nevertheless, plaintiff, who failed to seek mediation, argues that the judge erred in holding plaintiff in violation of the PSSA. Plaintiff, citing Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010), asserts that the PSSA's "restraints" on her right of immediate access to the courts to have claims adjudicated violated the Due Process Clause of the Fourteenth Amendment. In Parish, we found a trial judge's order requiring the parties to try to settle their disputes by holding a four-way conference before filing post-judgment motions to be an impermissible restraint on a party's due process right of access to the courts. Id. at 51.

In contrast, here the parties voluntarily agreed in their PSSA to attempt to settle their disputes through mediation before filing in court. We find Parish to be inapposite here as it prohibited the court, not the parties, from limiting access to the court.

Moreover, mediation is a recognized and appropriate process for the voluntary resolution of family disputes. See Lerner v. Laufer, 359 N.J. Super. 210, 216 (App. Div.), certif. denied, 177 N.J. 223 (2003); see also R. 1:40-5. Additionally, our Supreme Court has approved voluntary agreements between parties to use alternate methods to settle marital issues. Fawzy v. Fawzy, 199 N.J. 456, 477 (2009); Faherty v. Faherty, 97 N.J. 99, 107 (1984). Consequently, we are satisfied that the judge did not abuse her discretion in requiring the parties to follow their own agreement in the PSSA to mediate prior to filing in court. Additionally, plaintiff requests relief for alimony and child support arrears stemming from the additional income defendant received in January 2010, which the parties had determined not to address during the mediation process. We agree with the trial judge that these unmediated issues were also appropriate for future mediation.

In the Consent Order, the parties agreed that all the issues between the parties contained in the first two sets of motions were deemed resolved. Yet within three weeks of the entry of the Consent Order, plaintiff filed a new motion raising several issues that she had agreed were resolved. We find no abuse of discretion in the judge refusing to hear issues the parties had agreed had been resolved.

Next, plaintiff asserts that Judge McGrogan erred in denying her request for a $10,000 judgment due to defendant's one-day late wire transfer. We reject this claim as the record contains documentation that defendant's counsel had the funds in his trust account and was prepared to wire them to plaintiff on the morning of the due date, but plaintiff and her counsel failed to cooperate. Thus, Judge McGrogan's finding in this regard is supported by "substantial, credible evidence" in the record and, as such, we will not disturb it on appeal. Cesare, supra, 154 N.J. at 411-12.

Finally, plaintiff argues that Judge McGrogan abused her discretion in holding plaintiff responsible for the $8,018 in counsel fees incurred by defendant in opposing plaintiff's enforcement motion and in refusing to award plaintiff counsel fees for bringing her motion. We disagree.

"An allowance for counsel fees is permitted to any party accorded relief following the filing of a motion in aid of litigant's rights, R. 1:10-3, or to any party in a divorce action, R. 5:3-5(c), subject to the provisions of Rule 4:42-9." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). The decision to award counsel fees to the prevailing party is left to the court's sound discretion. Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000). A trial court's determination on counsel fees will only be disturbed "on the 'rarest occasion,' and then only because of clear abuse of discretion." Barr, supra, 418 N.J. Super. at 47 (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)).

We find that Judge McGrogan clearly did not abuse her discretion in ordering plaintiff to pay her own counsel fees as well as pay the $8,018 incurred by defendant in opposing her enforcement motion. Barr, supra, 418 N.J. Super. at 47. Judge McGrogan made detailed findings and considered each of the nine factors enumerated in Rule 5:3-5(c) to decide the issue of counsel fees. After carefully analyzing the factors, Judge McGrogan determined that plaintiff had the ability to pay her own counsel fees and to contribute to defendant's fees, and, most significantly, that plaintiff's enforcement motion was based on an unreasonable position and was pursued in bad faith. Because these findings are supported by the record, we do not perceive Judge McGrogan's award of counsel fees to defendant to be an abuse of discretion.

Plaintiff's remaining contentions are without sufficient merit to warrant a written discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20120123

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