August 10, 2012
IVO OLIVEIRA, PLAINTIFF-RESPONDENT,
MAUREEN CICIO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-1488-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2012
Before Judges Lihotz and Waugh.
Defendant Maureen Cicio appeals from orders of the Family Part awarding $16,531 in counsel fees to plaintiff Ivo Oliveira. We affirm as modified.
We discern the following facts and procedural history from the record on appeal.
Oliveira and Cicio met in 2000. They dated on and off for several years, during which time they never lived together. They have a son, who was born in 2003. Since 2005, the parties have shared joint legal custody of their son, with Cicio as the parent of primary residence.
There have been numerous disputes between the parties concerning parenting, with each alleging that the other has acted in bad faith. Cicio asserts that Oliveira has engaged in continuous motion practice solely to "financially ruin" her. Oliveira claims that Cicio has sought to alienate their son from him and has obstructed parenting coordination.
On July 29, 2010, Oliveira filed a motion for enforcement of litigant's rights and additional relief, including increased parenting time. On August 25, Cicio filed a cross-motion in which she requested, in part, that the current parenting time schedule remain intact.
On September 7 and 28, the parties appeared in court, both represented by counsel, and agreed to a consent order. The order provided that the parties would use Ann Ordway, an attorney, as their parenting coordinator. They further agreed that Oliveira would be responsible for 66.6% of Ordway's retainer fee and Cicio would be responsible for the remainder. The parties received Ordway's retainer agreement on October 13.
Oliveira paid his portion, but Cicio did not pay hers, citing financial difficulties.
On November 23, Oliveira filed a motion to enforce the consent order. Cicio filed a cross-motion in which she sought to modify the consent order so that Oliveira would be solely responsible for the cost of the parenting coordinator. In support of her motion, Cicio filed a case information statement (CIS). Oliveira filed a reply certification on January 24. The Family Part judge held oral argument on January 31. Cicio argued that she could not afford to pay her share of Ordway's fee because her financial obligations exceeded her income. Cicio claimed that her circumstances had recently changed because she had to pay for a necessary boiler repair, and that a tenant residing in one of two properties she owned failed to pay rent.
Cicio requested that the judge review her bank statement, but he declined to do. Instead, the judge relied on Cicio's recently filed CIS, which reported a gross salary of more than $83,000, with additional rental income in excess of $21,000. He noted that Cicio received more than $100,000 in income and concluded that, based on the income and expenses reported in Cicio's CIS, she could afford to pay her share of Ordway's fee, which was $1670. Noting that Cicio had not asserted inability to pay her share of the fee until after Oliveira filed his motion to enforce the consent order, the judge concluded: "[Cicio] hasn't done a thing . . . because she doesn't want to. That's the bottom line . . . . She does not care. She wants to disobey and then be stubborn about it. That's the . . . impression that I get . . . ."
At the end of the hearing, the judge ordered Cicio to pay her share of Ordway's fee. He also awarded Oliveira attorney's fees in the amount of $8436. In computing the fee allowance, the judge went through each of the applicable factors. He found that "each party has an ability to pay and contribute to the fees of the other party," that Cicio acted in "patently bad faith in refusing to comply with the [consent] order," that Oliveira acted in good faith, that Oliveira incurred $8436 in fees, that Cicio was previously ordered or had agreed to pay Oliveira fees in the amount of $1700, but had not yet paid, that the results obtained were favorable to Oliveira, and that Oliveira incurred fees in seeking to enforce a previous court order.
In calculating the fee award, the trial judge considered the reasonableness of Oliveira's attorney's hourly rate, the time and labor required, the lack of payment received by Oliveira's attorney, and actual costs incurred. The judge ordered Cicio to pay Ordway's fee prior to paying Oliveira's attorney's fees. He told Cicio that he would sanction her $100 per day, for each day between February 14 and March 3 that she did not pay Ordway.*fn1 An implementing order was entered on January 31.
Cicio did not pay Ordway's fee or Oliveira's attorney fees, despite the fact that Ordway offered a payment plan. In late February, Cicio, then acting pro se, filed a motion for reconsideration of the September 28 and January 31 orders. Cicio provided a certification, with exhibits, in which she stated that her student loans were in forbearance as a result of her financial situation, that she made unanticipated, but necessary boiler repairs during the winter, repairs to her home's roof, necessary repairs to her rental property, that she could no longer afford her attorney, and that she borrowed $7000 to pay living expenses and the aforementioned repairs. One of the exhibits was an uncertified statement from a certified public accountant to the effect that Cicio's monthly expenditures exceeded her income. Oliveira filed a cross-motion on March 14, seeking to enforce the same orders, and requesting attorney's fees.
The trial judge heard oral argument on March 28. Cicio requested that, instead of Ordway, the judge allow the parties to use one of two other individuals who were willing to provide parent coordinating services for free. The judge rejected that request. The judge found that Cicio's motion to reconsider the September order was time barred. The judge denied her motion with regard to reconsideration of the January order, finding that there was no legal basis for reconsideration because he had rejected the same arguments in January, that she presented no new evidence, and that her circumstances had not changed. The judge determined that Cicio had failed to comply with the September and January orders. He ordered Cicio to pay her share of Ordway's fees within fourteen days. The judge also converted his previous order for attorney's fees in the amount of $8436 into a judgment against Cicio.
At oral argument, the judge also considered Oliveira's request for $5306 in attorney's fees for the motions at issue. After reciting applicable law, the judge found that Cicio had no legal basis for her current motion, Oliveira had acted in good faith, Cicio was previously ordered to pay attorney's fees, which she had not yet paid, and Oliveira incurred additional legal fees in order to enforce compliance with prior orders. Cicio argued that Oliveira's attorney billed an unreasonable amount of hours; however, after considering the applicable factors, the judge concluded that the time and billing rate were reasonable.
As suggested by the judge during an earlier hearing, Oliveira agreed to advance Cicio's share of Ordway's fee, if her payment obligation were converted to a judgment against her. The judge memorialized this arrangement in his supplemental order. The judge subsequently awarded counsel fees in the amount of $2789 for the most recent motions. This appeal followed.
On appeal, Cicio argues that the trial judge erred in finding that she acted in bad faith and in awarding fees. She further argues that even if fees were warranted, the judge's award was excessive. Oliveira argues that the orders should be affirmed.*fn2
We accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). "'[J]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
A judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
An allowance for counsel fees is permitted in a Family Part action, and governed by Rule 5:3-5(c) and Rule 4:42-9.*fn3 To determine whether and to what extent such an award is appropriate, the court must consider:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
See also Williams v. Williams, 59 N.J. 229, 233 (1971).
The assessment of counsel fees is discretionary. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
In this case, the judge, who was familiar with the parties and their prior motion practice, cited the relevant court rule and case law. He carefully explained his reasons for imposing counsel fees. We are satisfied that those reasons are supported by the record on appeal. Based upon our review of the record, we find no abuse of discretion with respect to the judge's determination to award fees.
Nevertheless, we find that an award of more than $16,000 in counsel fees is excessive under the circumstances of this case. For that reason, we reduce the award to $12,000. That amount is sufficient to offset a significant percentage of the additional expenses incurred by Oliveira as a result of Cicio's repeated failure to comply with the judge's orders without being unduly punitive in light of Cicio's financial situation. Consequently, we affirm the orders on appeal as modified.
Affirmed as modified.