May 14, 2012
JENNIFER KATONA, PLAINTIFF-RESPONDENT,
JOHN N. GREENE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1655-08W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 16, 2011
Motion to reinstate appeal granted. Reargued March 12, 2012
Before Judges Sabatino and Ashrafi.
Decided April 19, 2011
This appeal in a matrimonial case returns following our remand for reconsideration of counsel fees awarded to plaintiff-wife and more detailed findings of fact and conclusions of law in that regard pursuant to Rules 1:7-4, 4:42-9(a)(1), and 5:3- 5(c). We adopt the recitation of relevant facts and procedural history contained in our prior unpublished opinion. Katona v. Greene, No. A-3210-09 (App. Div. Apr. 19, 2011) (slip op. at 1-3).
On remand, the judge of the Family Part issued a written decision dated June 14, 2011, setting out his findings and conclusions in accordance with the factors listed in Rule 5:3-5(c). The judge also reduced the award of attorney's fees to plaintiff from the prior $24,704.59 to $19,409.17. The judge indicated that the reduced amount is approximately forty percent of the fees charged to plaintiff by her attorneys in the matrimonial action. As reasons for the award, the judge stated that plaintiff-wife was laid off from her job during the pendency of the divorce and no longer had earnings as she did during the marriage. On the other hand, defendant-husband's income had not varied during that time. More important, the judge found that defendant unreasonably prolonged matrimonial litigation that was not complicated and increased expenses when the divorce should have been completed much more promptly and at lesser cost to both parties. The marriage had lasted only five months and involved no children or significant dispute regarding assets or debts.
Defendant argues with some persuasive force that the Family Part's decision still does not fully comply with the requirements of our mandate on remand, that it does not address all the relevant factors listed in Rule 5:3-5(c), and that it fails to take account of defendant's less favorable financial circumstances. Defendant contends, for example, that the court did not consider whether the parties have been able to pay their own attorneys' fees. According to the certifications filed by the parties at the time of application for attorneys' fees, defendant had paid only $2,000 to his own attorneys and still owed a balance of about $8,270, while plaintiff appears to have paid her attorneys their entire fee of approximately $49,000. Plaintiff's ability to pay seems consistent with her much higher personal, non-marital assets and her higher salary during the short duration of the marriage.
Also, the Family Part's decision on remand did not specifically address the time sheets of plaintiff's attorneys and make findings as to the reasonableness of the time expended and the rates charged. Instead, the court stated generally that plaintiff had engaged a law firm that charged higher rates at a time when she was still earning a steady income and should not be penalized because she had lost her employment. Defendant also argues that the court mistakenly attributed excessive motion practice to him when he had only filed one appropriate order to show cause when plaintiff locked him out of the marital home after a business trip.
The Family Part judge noted the belatedly-filed case information statement (CIS) of defendant, in which he declared annual income of about $72,500. There was no dispute that plaintiff lost her job and no longer had the higher level of income that she enjoyed earlier. The judge concluded that defendant was the cause of a portion of plaintiff's litigation expenses and had the ability to pay some of her attorneys' fees.
The judge also found that defendant had failed to cooperate in providing relevant information to facilitate discussions toward resolving the case and had taken an unreasonable position, in particular, demanding a lump sum alimony payment after a marriage of only five months. The judge concluded that defendant had acted in bad faith and prolonged the litigation, thus increasing plaintiff's litigation expenses.
Although the Family Part's decision again omitted some relevant factors and issues listed in Rule 5:3-5(c), our independent review of the record leads us to conclude that the award to plaintiff was within the discretionary authority of the Family Part and is not unjust in the circumstances presented. We do not substitute our judgment regarding the amount of attorneys' fees awarded for that of the trial court. Instead, we review its decision under the deferential abuse of discretion standard. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).
We conclude that the Family Part's balancing of the overall costs of this litigation to place greater responsibility on defendant for his actions during the divorce proceedings was not an abuse of discretion and that the revised fee award should be upheld despite the imperfections in the court's analysis.
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