January 17, 2013
EFSTRATIOS HADJIKONSTANTINOU, PLAINTIFF-APPELLANT,
GEORGIA HADJIKONSTANTINOU, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-154-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2012
Before Judges Yannotti and Espinosa.
Plaintiff's notice of appeal states that he appeals from two post-judgment orders in this heavily litigated matrimonial action, dated July 1, 2011 and August 23, 2011. However, plaintiff raises arguments in his brief and appendix regarding orders dated October 23, 2009, December 11, 2009, and an order dated August 19, 2011, which denied his motion to stay the July 1, 2011 order. None of these orders were identified in the notice of appeal and no transcripts have been provided other than the transcripts relating to the orders identified in the notice of appeal. Our review is therefore limited to the orders dated July 1, 2011 and August 23, 2011. See Rule 2:5-1(f)(3)(A) (the notice of appeal "shall designate the judgment, decision, action or rule, or part thereof appealed from[.] . . ."); see also W.H. Indus. v. Fundicao Balancins, Ltda., 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review."); Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2013). For the reasons that follow, we affirm the orders of July 1 and August 23, 2011.
This case has an extensive history of post-judgment motion practice. We summarize only the facts and procedural history relevant to our review.
The parties were married in January 1989 and had three children. Plaintiff filed for divorce in July 2005, and the parties entered into a property settlement agreement (PSA) in January 2007. Although post-judgment motion practice commenced earlier, the motions that led to the orders appealed from began in February 2011, when plaintiff filed a motion seeking enforcement of an earlier order regarding the sale of the marital home.
As part of her cross-motion, defendant sought contribution toward the children's unreimbursed orthodontic and medical expenses; reimbursement for college expenses and a contribution toward future college expenses of the parties' son; and counsel fees. In addition, defendant moved to compel plaintiff to disclose his prior year's tax returns and W-2 so that plaintiff's child support obligation could be modified due to the emancipation of their oldest daughter, who had married. Plaintiff responded by requesting that defendant be compelled to provide financial documents, including documentation of bank accounts in Greece and documentation concerning income-producing property defendant allegedly possessed in Greece, and defendant's Greek tax returns.
In the April 1, 2011 order that resolved these motions,*fn1
the motion judge ordered the parties to submit their 2010
W-2s and income tax returns. The order also directed that plaintiff
and defendant share the cost of their son's college expenses on a
respective 60/40 basis; that defendant provide proof that the
children's orthodontic work was necessary, and that upon such proof,
plaintiff would be responsible for 60% of the cost. After defendant
provided income information and proof regarding the orthodontic
treatment, plaintiff filed a motion to compel the disclosure of
additional financial information,*fn2 contending that
defendant's admitted income was insufficient to support her expenses
At the July 1, 2011 motion hearing, plaintiff argued that his child support obligation should be set at $196 per week, an amount he calculated based on a weekly income of $1795 for himself, and a weekly income of $768 for defendant, plus "add[ing] some income [to defendant's weekly income] that I believe it's there." However, the proofs plaintiff relied upon failed to show the existence of unreported income from Greece. The documents were in Greek and, because they were from 2005 and 2006, did not provide current information.
The July 1, 2011 order disposed of plaintiff's motion to compel the disclosure of additional financial records and defendant's cross-motion with the following provisions:
1. Defendant shall be reimbursed $1482.00 by plaintiff as and for costs she paid for the children's orthodontic treatment within 30 day[s] of the date hereof. In addition plaintiff shall pay the orthodontist directly $78 dollars per month for [K.H.'s] braces and $72.00 per month for [M.H.'s] braces beginning July 2011; and
2. Plaintiff shall pay to defendant $288.00 per week as and for child support for the two unemancipated children of the parties. Said sum is based on $1795.00 income for the plaintiff and $768.00 income for the defendant; and
3. . . . The parties['] son [K.H.] shall continue to be a full time student taking a minimum of 12 credits per semester. If he does not take 12 credits or withdraw[s] from a class child support shall no longer be paid on his behalf; [and]
4. . . . The parties['] son shall provide both parties with his school records, including transcripts and if he fails to do so child support will no longer be paid on his behalf.
Plaintiff's motion to stay the order was denied by order dated August 19, 2011. As part of her cross-motion to that motion, defendant had submitted an application for fees, accompanied by her counsel's certification of services. At oral argument, counsel noted that this was the fourth time the parties had been to court that year and alluded to the nature of the papers plaintiff had submitted. The court acknowledged those facts; directed counsel to submit a separate order with an application for fees by August 23, 2011; and directed defendant to file any opposition by that date as well. As noted, the August 19 order is not a subject of this appeal.
Defendant's counsel submitted the orders and affidavit as directed. In support of the fee application, defense counsel certified that he had spent a total of 4.5 hours, billed at the rate of $350 per hour, on the cross-motion heard on August 19. Defendant failed to submit his opposition by the date directed by the court. In an order, dated August 23, 2011, the court awarded defendant $1575 in counsel fees. Plaintiff filed his objection by letter dated August 24, 2011 and challenges the award in this appeal.
We first address the issues raised by plaintiff's appeal of the July 1 order.
Plaintiff argues that, following defendant's motion for a recalculation of child support based upon the emancipation of one child, both parties made a prima facie showing of changed circumstances. He contends that defendant concealed income from properties she owned in Greece and her business selling Avon products. He argues that the motion judge erred in failing to order full discovery; failing to conduct a plenary hearing; and failing to impute income to defendant. As a result, he submits that the child support award was based upon inaccurate information.
Our standard of review of a family court's decision regarding the modification of support obligations is highly deferential, given the family court's "special jurisdiction and expertise[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). Such deference is appropriate in reviewing post-judgment motions for discretionary decisions where "support can be found for [those decisions] in the record before the court at the time each decision was made." Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002) (citing Rolnick v. Rolnick, 262 N.J. Super. 343, 355-59 (App. Div. 1993)). "We reverse only to 'ensure that there is not a denial of justice' because the family court's 'conclusions are  "clearly mistaken" or "wide of the mark."'" Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
After a movant makes the requisite showing of changed circumstances, "a court may order discovery and hold a hearing to determine the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999) (citing Lepis v. Lepis, 83 N.J. 139, 157-59 (1980)). Significantly, a prima facie showing "must be made before a court will order discovery of an ex-spouse's financial status." Lepis, supra, 83 N.J. at 157 (emphasis added). Therefore, it is only once a prima facie case is established that "tax returns or other financial information should be ordered." Ibid.
Under the PSA, plaintiff was required to pay $230.00 per week in child support until the children became emancipated. The change in circumstances that warranted a review of plaintiff's child support obligation was the emancipation of the parties' oldest daughter due to her marriage, rather than a prima facie showing of a change in the financial circumstances of either party.
In response to this change in circumstances, the motion judge ordered the exchange of the parties' 2010 tax returns and W-2 forms in the order of April 1, 2011. After the exchange of this information, plaintiff sought more discovery, based upon his contention that defendant had additional, unreported income. Plaintiff claimed that defendant had additional income because (1) she spent a significant amount of money on Avon products, (2) pre-2006 Greek bank statements show, according to plaintiff, income from a property defendant owned in Greece, (3) defendant was previously an Avon representative, and (4) defendant's income was insufficient to support her lifestyle. Defendant submitted a certification in which she denied receiving any income from either Avon or Greek properties.
None of plaintiff's contentions constitute evidence that defendant was receiving any additional income in 2011. The bank statements concerning the property in Greece were in Greek and dated several years earlier. Since plaintiff's contentions are supported only by his own speculation, the motion judge did not abuse his discretion in denying his motion for additional discovery. Further, since he failed to "clearly demonstrate the existence of a genuine issue as to a material fact[,]" i.e., that defendant had additional, unreported income, no plenary hearing was necessary. Id. at 159.
Plaintiff also argues that the motion judge erred in failing to impute income to defendant based upon the allegation that she was underemployed. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant's 2010 income taxes showed an adjusted gross income of $37,979. Plaintiff's return showed an adjusted gross income of $93,265. In calculating the child support award, the motion judge employed $768 per week for defendant's income, based on her 2010 tax return, and $1795 per week for plaintiff, based upon his 2010 tax return. Pursuant to the Child Support Guidelines, Sole-Parenting Worksheet, see Pressler & Verniero, supra, Appendix IX-C to R. 5:6A at 2604-06 (2013), plaintiff's resulting obligation was $288.00 per week. Plaintiff's calculation of an obligation of $196 per week was based upon his unproven speculation that defendant had additional, unreported income. Therefore, the court did not err in calculating a child support obligation based upon the income for each parent reflected in their 2010 tax returns.
Plaintiff also challenges the provision in the July 1 order that requires him to pay for orthodontic expenses. He argues that he was not consulted regarding these procedures, as required by the parties' PSA, and that the procedures were cosmetic, rather than necessary.
Under the PSA, both parties were required to contribute to "unreimbursed" medical expenses for the children, with defendant paying the first $250.00. Any expenses beyond that would be shared by both parties with plaintiff paying 52% and defendant paying 48% of the cost. Paragraph 3.3 of the PSA stated that:
Each parent shall have the right to communicate with any physician, therapist or other professional who may examine, treat or submit any reports concerning the children. Each parent shall be entitled to complete information from any such health care provider or mental health care professional attending to the children for any reason whatsoever and shall be provided with copies of any reports (whether oral or written) given by the professional to a parent within [twenty-four] hours of receipt. Where it is not the practice of the physician to supply these reports (oral or written) to both parents, the parent receiving any relevant information shall send a copy of any and all reports or communicate an oral report to the other within [twenty-four] hours of receipt of same.
In response to the requirement in the April 1, 2011 order that she provide proof of the necessity of the orthodontic work, defendant submitted a letter from Clifton Orthodontics, L.L.C. for each child dated March 31, 2011. As to K.H., the letter stated:
Patient was in need of orthodontic treatment due to following problems: A Class III Maloclussion[;] Overjet[; and] Anterior x-bite[.] We have recommended comprehensive orthodontic treatment with upper and lower Invisalign braces. Estimated treatment time is 20-24 months.
The total fee for K.H.'s treatment was $5500. It was expected that insurance would cover $2300 of the total cost, leaving the parties with a cost of $3200.
For M.H., the letter stated:
Patient was in need of orthodontic treatment due to following problems: A Class III Maloclussion[;] Posterior bilateral x-bite[; and] Overbite and overjet[.] We have recommended comprehensive orthodontic treatment with upper and lower braces along with RME (expander) to correct the bite. Estimated treatment time is 24 months.
The total fee for M.H.'s treatment was $4200. It was expected that insurance would contribute $1425 of the total cost, leaving the parties with a cost of $2275.
In Gotlib v. Gotlib, 399 N.J. Super. 295 (App. Div. 2008), we held that a custodial parent's failure to provide notice of medical expenses was insufficient to waive the children's right to receive benefits from the non-custodial parent. Id. at 300, 306. As to plaintiff's argument that he should not be responsible for orthodontic work that was unnecessary, we review the reasonableness of the procedure in light of the following factors:
(1) was the treatment medically necessary;
(2) was the medical treatment . . . an unforeseen emergency . . . ; (3) did the treatment involve elective or cosmetic medical services, and if so, was it in the best interest of the child involved to undergo such treatment; and (4) in cases of elective or cosmetic medical treatment, was the decision economically sound, given the parties' financial resources. [Id. at 307.]
Plaintiff has not provided us with a transcript of the April 1, 2011 hearing, at which the motion judge directed that defendant provide proof that the procedures were necessary. Although the record is incomplete, we are satisfied from the proof submitted that the motion judge did not abuse his discretion in determining that plaintiff was required to contribute to the expenses pursuant to the parties' PSA.
Plaintiff also argues that the court erred in ordering him to pay college tuition for the parties' son. However, the allocation of responsibility for college expenses was made in the April 1 order, which is not a subject of this appeal. The July 1 order merely established that child support payments on behalf of K.H. would cease if he failed to remain a full-time student or failed to provide plaintiff with his school records.
We next turn to plaintiff's appeal of the August 23 order that directed him to pay defendant $1575 in counsel fees.
Rule 5:3-5(c) grants the court discretion to award counsel fees in support and custody cases subject to R. 4:42-9(b), (c), and (d) and states, in part:
In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (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 Mani v. Mani, 183 N.J. 70, 93-94 (2005). An award of attorney's fees may be made pursuant to this rule in favor of any party, whether or not prevailing, "if deemed to be just."
R. 5:3-5(c). See, e.g., Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).
Neither the August 23 order nor the transcript of the August 19 proceeding include findings by the court regarding the factors relevant to an award of counsel fees. However, the record permits us to assess these factors.
First, we note that the award is limited to the fees incurred for one cross-motion, filed in response to plaintiff's motion to stay the July 1 order. The hearing on the motion came after a contentious history of motion practice, and was the parties' fourth court appearance in a single year. On its face, an award of $1575 for 4.5 hours in preparation for a court appearance is not unreasonable. In his opposition to the fee application, plaintiff did not challenge the amount of time defendant's counsel had expended to provide the legal services or the reasonableness of the amount. Since plaintiff appeared pro se, he had no counsel fees of his own to pay. The July 1 order itself set forth the motion judge's findings regarding the parties' relative incomes, reflecting that plaintiff's weekly income was more than double that of defendant. Defendant's cross motion was in response to plaintiff's motion to stay the order of July 1. This motion was governed by Rule 2:9-5(a), which provides that the trial court "should exercise its discretion" and balance the equities outlined in Crowe v. DeGioia, 90 N.J. 126, 133 (1982), in granting such relief. Pressler & Verniero, supra, comment 1 on R. 2:9-5. His motion failed to present an argument regarding such equities, resting instead upon arguments that the court's decision was erroneous and based upon fraudulent information provided by defendant. Accordingly, the motion lacked merit and defendant prevailed. The record is therefore sufficient to demonstrate that the counsel fee award was not an abuse of discretion.
Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).