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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...