June 13, 2013
KATHLEEN CROGHAN, Plaintiff-Respondent,
JOSEPH CROGHAN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 24, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2578-04.
Joseph Croghan, appellant, argued the cause pro se.
Judith L. Rosenthal argued the cause for respondent.
Before Judges Axelrad, Sapp-Peterson and Haas.
In this opinion we address several post-judgment matrimonial orders in two appeals by defendant Joseph Croghan that were calendared back-to-back. The first appeal (A-2389-11T4) involves portions of an October 21, 2011 order that denied defendant's motion to modify his alimony and child support obligations based on changed circumstances, terminated his support obligation for his daughter retroactive to the June 27, 2011 filing date of his cross-motion instead of the August 31, 2010 court-ordered emancipation date, directed him to withdraw funds from his retirement account to pay outstanding financial obligations, awarded plaintiff Kathleen Croghan a $2500 counsel fee, and a December 20, 2011 order that denied reconsideration and awarded another $2500 counsel fee to plaintiff.
The second appeal (A-5590-11T4) involves a May 15, 2012 order allocating a $14, 000 payment to alimony and child support arrears rather than just to child support arrears and future child support payments as requested by defendant, awarding plaintiff a $1402.20 counsel fee to plaintiff, and denying his cross-motion involving issues pertaining to the parties' son.
We affirm both appeals.
The parties have a litigious history. We recite only those facts and procedural history relevant to these appeals. We further note that as detailed in plaintiff's brief, defendant included in his brief and appendix significant facts and documentation that were not provided to the trial court and are thus inappropriate for consideration on appeal. R. 2:5-4. Accordingly, much of our recitation of defendant's submissions to and the facts and evidence before the trial court in connection with the challenged orders has been gleaned from the July 14, 2011 transcript, the court's opinions, and plaintiff's certifications in opposition to defendant's motions.
The parties were married in l982 and divorced in 2005. Their daughter was born in l988 and their son was born in l995. Pursuant to the final judgment of divorce (FJD), defendant was obligated to pay plaintiff $2500 per month in permanent alimony. The parties were granted joint legal custody of both children, with plaintiff being the parent of primary residence. Defendant was obligated to pay her $1150 per month in child support, with periodic cost of living increases through each child's emancipation.
On June 14, 2010, defendant filed a motion that sought, in part, to have their daughter declared emancipated effective May 14, 2010, the date of her college graduation, and to "recalculate" child support to reflect only their son. On September 2, 2010, Judge James Troiano entered an order that declared the parties' daughter emancipated as of August 31, 2010. He denied defendant's request to reduce alimony without prejudice based on a failure of proof. The order further required the parties to "exchange income information, including, but not limited to an updated case information statement [CIS], 2009 W-2s, 1099s, tax returns and the parties' three most recent pay stubs within 30 days of the date of this Order for the purposes of recalculating child support for [their son], the remaining unemancipated child."
On May 26, 2011, plaintiff filed a motion to enforce litigant's rights regarding a September 2, 2010 order, in part compelling defendant to pay alimony and child support arrearages of about $5000, reimburse her for insurance premiums and unreimbursed medical expenses, provide a current CIS, and for counsel fees. On June 27, 2011, defendant, again represented by counsel, filed opposition and a cross-motion seeking, in part, to reduce child support due to the emancipation of the parties' daughter, to modify alimony, and to require plaintiff to file an updated CIS.
On July 14, 2011, Judge Troiano took testimony from the parties, heard oral argument, ruled on several issues, and reserved decision on others. He directed the parties to submit supplemental financial information to him. By letter of July 22, 2011, plaintiff's counsel complied, submitting plaintiff's July 2011 CIS, 2009 and 2010 federal income tax returns, July 2005 CIS with page one of her federal income tax return; documentation regarding medical treatment and expenses relating to their son; and defendant's March 2005 CIS. There is nothing in the record reflecting that defendant submitted his financial information to the court or provided anything other than one tax return to plaintiff.
On October 21, 2011, Judge Troiano issued a letter opinion and order that is the subject of the first appeal. He denied defendant's cross-motion except to the extent he provided that if defendant's child support for the parties' son were reduced, he only would be entitled to a credit as of June 27, 2011. He further provided that:
Unless the parties can reach an agreement as to the amount of child support for their son, then for purposes of determining income for defendant, it shall be a result of annualizing the income he received until such time as he left his employment with Brinks. Plaintiff's income shall be as set forth in her latest [CIS] which the court has found to be consistent with her past earnings. The parties shall utilize the Child Support Guidelines and defendant shall not receive any credit for overnight parenting time unless he is presenting exercising same with [his son].
The judge granted plaintiff's motion to enforce litigant's rights and directed defendant to withdraw funds from his retirement account to pay plaintiff $25, 097.79, comprising $20, 712 for alimony and child support arrearages, $1, 357.79 for their son's unreimbursed medical expenses, $1482 for other expenses not at issue in this appeal, and $2500 toward plaintiff's counsel fees on the motions, and to create "a temporary fund to insure future payments for six months[.]"
Defense counsel moved for reconsideration. By order of December 20, 2011, Judge Troiano denied the motion and granted plaintiff's request for counsel fees for defending the motion, awarding her another $2500. This appeal ensued.
On April 1, 1993, defendant and three friends formed an equal partnership, the Retirement & Recreational Club (RRC), "to conduct the business of buying, selling and leasing real property[, ]" plus "contracting work" for hire. The partnership agreement was the "umbrella agreement to govern" other entities that its members had formed or would form to conduct such activities. RRC delegated the management of all properties in which it or related entities held an interest to ERA Statewide Realty (ERA).
As of April 20, 2004, defendant requested an immediate buyout of his interest in the RRC, and RRC estimated his buy-out payment at $35, 000. The buyout did not affect the status of properties held in the name of defendant, Viking Property Development (Viking), or Kroner Contracting (Kroner); as per the agreement, those properties would be kept in their respective names until the remaining partners chose to sell those assets. In his July 26, 2004 case information statement, defendant listed the following separate business partnerships: Kroner, Viking, Superior Properties (Superior), and "Rental Properties, " noting that as of April 20, 2004, he "[s]old interest in operation to partners based on previous [buyout] agreement to raise cash to live when forced out of marital home[.]"
At the August 15, 2005 hearing during which the parties agreed to the terms of the divorce judgment, defendant testified that he was a licensed C.P.A., but he was unsure whether he had maintained the license. He further stated that he was presently unemployed, but his typical annual income was approximately $120, 000, which excluded certain unusual job bonuses and other items that he had received in 2004. Nowhere in the record, however, did defendant represent that the alimony and support payments were conditioned on resumption of this income level.
Pertinent to this appeal, the FJD provided that defendant retained whatever right, title, and interest he held in the partnerships contained within the RRC (Kroner, Superior, and Viking). It further granted plaintiff full ownership of defendant's accounting practice.
Defendant married Donalyn Croghan on November 19, 2005. They were divorced on October 27, 2011. Defendant was granted sole "interest in his various retirement accounts and pensions" as well as RRC, and was not obligated to pay her alimony.
By order of January 31, 2008, defendant's accounting license was suspended for failing to provide proof of completion of continuing professional education and documentation of employment through December 31, 2005. In response, defendant provided his work history through his current position, and advised that he did not use his CPA certificate as a source of income.
As set forth in Judge Troiano's letter opinion of October 21, 2011, defendant certified in his August 2006 CIS that he was employed by Driscoll Foods and earning about $125, 000 annually. "Apparently, he was still a principal in Kroner." His social security statements reflected Medicare wages in 2007 of about $123, 700. In 2009, defendant and his wife Donalyn reported wages of about $175, 000, "business income through Kroner, " and rental income. When the court emancipated the parties' daughter in September 2010, defendant was not employed. The court, however, denied defendant's motion to reduce alimony then noting, in part, defendant's reported ownership of Kroner and the $174, 461 income he received from Kroner that year but failed to disclose and report, and which plaintiff and her attorney discovered.
In November 2010, defendant became a senior vice president of finance at Brinks Security, earning about $160, 000 annually. The judge found defendant terminated that employment on April 7, 2011 and did not provide "a reasonable explanation for same[, ]" although the judge noted that was about the time defendant filed for divorce from Donalyn. Plaintiff had presented to the court an April 6, 2011 e-mail from defendant to her stating, "I just left my job due to the stress of not being able to see [our son] . . . I can not be effective and now I'm unemployed" and contrasted it with his March 26, 2011 e-mail, in which he bragged about his job's rewards.
Defendant only submitted an August 17, 2011 letter from his treating cardiologist, Dr. James Quinn, stating that following multi-vessel coronary bypass surgery on May 4, 2011, defendant "continue[d] to suffer from highly dangerous ischemic heart disease[, ]" and recommended defendant avoid "any physical activity until the situation has been clarified and remedy made." In particular, he "should avoid any stressful situations or lifestyle changes and should not attempt [to] seek alternative employment as this may be quite dangerous." Defendant was directed "to remain on multiple medications until the problem was clarified."
The judge further referenced defendant's June 1, 2011 CIS, in which he stated he was unemployed, listing gross earned income of $50, 485 for the year to date, with no unearned income, and valuing his pension at $500, 000. In the CIS, defendant further certified that he had "income from construction business" but not in 20ll due to heart problems, listed no income from Kroner, and noted without further explanation that Kroner and RRC were in litigation.
In analyzing the limited medical information submitted by defendant, Judge Troiano accepted defendant's heart condition and bypass surgery, and found "for a temporary and indefinite period of time, [defendant] was not able to work at stressful or physically strenuous jobs." Thus, defendant was similarly unemployed as he was at the time of the FJD. The judge noted, however, that the letter did not say that defendant could not look for appropriate employment when his health condition stabilized and he was able to return to work. Nor did it say that he was unable to collect income from Kroner. The evidence reflected that "Kroner was still operating and producing income" and that defendant had been able to obtain summer employment there during the time of the hearing for the parties' son and his friend.
Though sympathetic to defendant's medical condition, noting defendant's lack of proof that his "health issues are anything other than temporary" and the evidence as to his status at the time of the FJD, his current income and assets, Judge Troiano concluded that defendant did not carry his burden of proving a significant change in circumstances from the time of the divorce to warrant a hearing to modify or terminate alimony. Though of no moment because of defendant's failure to meet his burden of proof, the judge incidentally noted that based on the additional income information provided by plaintiff, her income and financial situation remained constant from the FJD to the present. After analyzing defendant's assets, the judge further concluded that defendant was fully capable of meeting his alimony and support obligations and there were sufficient retirement assets from which to pay the significant arrears and current responsibilities for six months until his health improved and he could return to employment.
The court also directed that defendant would receive a reduction in child support and credit for his daughter's emancipation effective June 27, 2011, the filing date of his cross-motion. As previously stated, the court ordered the parties to exchange financial information and renegotiate child support for the parties' son as of that date based on annualized income defendant received until such time as he left Brinks, or seek assistance from the court to recalculate child support.
The court awarded plaintiff a $2500 counsel fee to enforce the September 2010 order, noting defendant did not comply with the "comprehensive" order and the motion became a "necessity." Moreover, in his cross-motion, defendant relied on the same arguments to modify alimony that had been rejected in September 2010, again not meeting his burden. Judge Troiano additionally found defendant did not deal with plaintiff in good faith in withholding alimony payments.
Pursuant to the court's direction, on October 26, 2011, plaintiff herself wrote to defendant's attorney with a proposal regarding child support based on defendant's annualized income. Defendant failed to provide any evidence to us that he or his counsel responded to this proposal.
Defendant moved for reconsideration, again represented by counsel, on the grounds that the prior order was entered based on false statements in wife's May 26, 2011 certification, "a number of factors arising from the original Motion that ultimately left the Court unable to properly take into account to full set of circumstances" when rendering its decision, and "new evidence" regarding defendant's health, his income and the valuation of his home. He submitted a variety of documents in support of the motion, those post-dating the July 2011 hearing including: unsigned November 1, 2011 thyroid ultrasound from Dr. Mamta Shah; October 31 (undated but presumably 2011) letter from Dr. Quinn stating that defendant was suffering with "persistent chest pain[, ]" a "repeat cardiac catheterization shows occlusion of the vein graft[, ]" he "continues to have intractable angina with minimal exertion[, ]" his "prognosis for improvement is very guarded" and "[l]ifelong disability is quite likely"; Clara Maas Medical Center New Jersey Hospital Care Assistance Program card reflecting date approved, October 27, 2011, effective May 3, 2011 through May 2, 2012; August 9, 2011 email from defendant to Manta Customer Service and Manta's response; New Jersey Department of Treasury online statement showing plaintiff as principal of Property Preservation, Inc. printed October 28, 2011 (originally filed August 2010); portions of a lease for defendant's Hamburg property dated September 29, 2011; October 26, 2011 retainer agreement against ERA, RRC and others; October 26, 2011 certification by former treasurer of ERA stating that Kroner no longer receives income from properties managed by ERA and disputing that the checks sent to defendant, obtained by plaintiff and her attorney, was not income and was not money disbursed to him; and an October 28, 2011 certification from a former coworker at Brinks who was terminated on April 7, 2011 and claimed defendant and another employee were "involuntarily terminated."
Plaintiff filed opposition with documentation. She cross-moved for counsel fees. She argued the reconsideration motion was brought in bad faith because defendant's certification failed to supply any new evidence, apart from the undated doctor's letter that failed to explicitly state that defendant was currently disabled and a hearsay statement from former Brinks employee who provided no specifics. Plaintiff emphasized that the bulk of defendant's arguments about his income and assets had either been previously made or the information and documentation was accessible to defendant at the time he filed his prior cross-motion.
Judge Troiano denied reconsideration, basically finding defendant was seeking a second bite of the apple and failed to satisfy the requirements of Rule 4:49-2. The judge awarded plaintiff another $2500 counsel fee for having to defend the motion, adopting the reasoning set forth in her certification and finding her fee request to be reasonable.
This appeal ensued. On appeal, defendant argues the court erred in: (1) not terminating his child support obligation for the parties' daughter retroactive to the court-ordered date of emancipation of August 31, 2010, rather than the filing date of his cross-motion of June 27, 2011; (2) not ordering a plenary hearing and in failing to find changed circumstances of a significant decrease in his ability to pay support based on his health and finances and of a significant increase in plaintiff's income; (3) ordering him to pay support arrearages out of assets that had already been subject to equitable distribution; and (4) denying reconsideration. As part of these arguments, defendant also challenges several of the court's factual findings and conclusions, including the statement that defendant claimed to sell his interest in Kroner; assumptions about defendant's CPA license; viewing defendant's illness as temporary; assessing income to Kroner based on illegally obtained information and incorrectly assuming defendant had the ability to earn income from Kroner while he was recuperating from his illness; and assuming defendant voluntarily left Brinks because of his pending divorce from Donalyn. Defendant also challenges the two counsel fee awards, rulings regarding unreimbursed medical expenses, parenting time and their son's therapist.
At oral argument, defendant requested the following relief: recalculation of child support as of August 2010 and a decrease in support for his son because he had less time with him because of the judge's erroneous rulings about parenting time, a hearing to reduce alimony based on changed circumstances based on his reduced income and plaintiff's increased income and his medical condition, and reversal of the counsel fee orders. Based on our review of the record and applicable law, we are not persuaded by any of these arguments and affirm substantially for the reasons stated by the trial court.
We further note that at oral argument, defendant insisted he was penalized by the trial judge for being self-represented throughout the litigation. The record clearly reflects that defendant was represented by counsel during every proceeding that is the subject of this appeal. Giving defendant the benefit of the doubt, perhaps he was referring to the second appeal. Defendant was apparently self-represented during the March 9, 2012 court proceeding and filed his own papers in opposition to plaintiff's motion and in support of his cross-motion that resulted in the May 25, 2012 order, entered on the papers. Nevertheless, that record clearly reflects that defendant was given respect and treated fairly by the court during those proceedings.
The October 21, 2011 order was based on documentary and testimonial evidence. The standards governing our review of a bench trial are well-settled. We recognize the special expertise of judges hearing matters in the Family Part and accept their findings "when 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. of Am., 65 N.J. 474, 484 (1974)). We review the "trial court's interpretation of the law and the legal consequences that flow from established facts" de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Nevertheless, we reverse the factual findings or legal conclusions 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[, ]'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), or when we determine the court has palpably abused its discretion, Cesare, supra, 154 N.J. at 412.
Had defendant submitted his financial information at the time he made the motion to emancipate his daughter, the court could have terminated defendant's support obligation for her as of August 31, 2010, and recalculated child support for the parties' son. Defendant, however, did not. He also disregarded the mandate of the September 2, 2010 order to exchange the enumerated financial information within thirty days "for the purposes of recalculating child support" for the parties' son, with which plaintiff complied. We can only assume defendant did not want to provide proof of his substantially increased earnings at Brinks ($160, 000/year), the job he obtained within about two months of the order. Instead, only after he left that position and plaintiff filed her enforcement motion did defendant file a cross-motion to recalculate child support. Even at that point, defendant failed to submit to the court and plaintiff the required financial information. In fact, defendant fails to demonstrate that he or his attorney responded to plaintiff's October 2011 proposal regarding child support based on his annualized income or that at any time he provided updated CISs and tax returns to recalculate child support.
Under all the circumstances, we discern no abuse of discretion in Judge Troiano's ruling limiting the retroactive support adjustment to the filing date of defendant's cross-motion rather than the date of emancipation. As defendant failed to present an updated CIS and tax returns as required by Rules 5:5-2 to -4, the court had no basis to recalculate child support for the parties' remaining unemancipated child. As defendant acknowledged at our oral argument, the court's task was not simply halving the support obligation. See Pressler & Verniero, Current N.J. Court Rules, Child Support Guidelines, Appendix IX-A(24) (providing that if the guidelines are used to calculate child support for two or more children, "the emancipation of a child shall not result in a proportionate reduction of the support order"). Defendant is not precluded from filing a motion before the trial court after receipt of this opinion to recalculate his support obligation for his son, retroactive to June 27, 2011, with submission of the appropriate financial documentation as required by the prior order and Court Rules.
Support obligations, whether in a "consensual agreement" or in a final judgment, can be modified to reflect "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 148 (1980). For alimony, "the general considerations are the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id. at 152. While the "'changed circumstances' are not limited in scope to events that were unforeseeable at the time of divorce[, ]" they must be "continuing, " as well as unanticipated and unaddressed by the agreement or judgment. Id. at 152-53. In addition, they may not be "only temporary, " or changes that "are expected but have not yet occurred." Id. at 151.
"The party seeking modification has the burden of showing such 'changed circumstances' sufficient to justify it." Id. at 157. A plenary hearing is necessary when a party can "clearly demonstrate the existence of a genuine issue as to a material fact[.]" Id. at 159. Courts are "free to exercise their discretion to prevent unnecessary duplication of proofs and arguments."
Defendant claims the court erred in failing to find a significant change in his ability to pay support. He argues that his loss of income in 2005 from losing his job was mitigated by substantial payments for severance and accrued benefits, whereas he received no such benefits upon his termination in April 2011. At the time of his divorce he was also just weeks away from his marriage to Donalyn, who had income and health benefits to share with him, but he lost that upon their divorce, which was finalized less than one week after the October 21, 2011 order. He also claims the recent poor economy and his turn to poor health have rendered the prospect that he would return to work purely speculative, as corroborated by his steadily declining earnings since 2009. Defendant urges that a plenary hearing was needed for the court to address all those questions of disputed fact. We disagree.
In finding defendant failed to present a prima facie case of changed circumstances warranting an evidentiary hearing and supporting his Lepis claim, Judge Troiano primarily focused on defendant's unemployment at various times, including at the time of the FJD when he agreed to the payment of the permanent alimony and child support figures; the amount of income defendant declared from Kroner at various times; defendant's lack of candor respecting Kroner and plaintiff's proof of his income through checks mistakenly sent to her address; the dearth of proof defendant submitted to demonstrate that his medical condition was other than temporary and significantly affected his ability to earn income; and his significant assets.
Defendant was not forthcoming in providing to the court the requisite financial information that would have disclosed all his income and properties. Instead, he provided selective information and documentation, most likely using the strategy that he would supplement the record on reconsideration with additional supplemental facts and documents, and argue that the judge did not have a complete picture. We are satisfied the record supports Judge Troiano's credibility assessments, factual findings, and legal conclusions respecting defendant's finances and ability to pay the permanent alimony agreed upon in the FJD, as well as assessment of plaintiff's earnings.
In particular, defendant claims that the court erred in determining his income from Kroner, arguing that the court accepted plaintiff's misrepresentations about Kroner's work and income and disregarded its expenses. He explains the apparent income to Kroner as a by-product of its being used to pass funds from one ERA account to another. He further argues that the court should have disregarded all evidence of Kroner's income because plaintiff obtained it by trickery outside an authorized post-judgment discovery process.
These arguments are also unavailing. Judge Troiano did not rely on any particular amount of income from Kroner. He simply observed that Kroner could not have contributed to a putative worsening of defendant's circumstances, because it was generating some income greater than zero, compared to an absence of disclosed income from it at the time of the divorce. Defendant does not deny that Kroner was engaged in some business activity during the period preceding the order, and he does not assert that it was operating at a loss.
Defendant next asserts error in the court's finding of voluntary termination of his employment at Brinks in April 2011 as a tactic in his divorce from Donalyn. Judge Troiano did not rely on whatever suspicion he might have had about the voluntariness of defendant's termination from Brinks in April 2011. Furthermore, defendant has presented no evidence to suggest that involuntary termination would have made him less likely to find suitable subsequent employment than if his termination were voluntary. A finding about voluntariness would therefore have had no role in the determination of how temporary his unemployment was likely to be.
Moreover, the record did not compel the court to view defendant's condition as other than temporary. In support of his cross-motion, defendant merely presented the one-page letter from Dr. Quinn that noted that his chest pains, severe hypertension and ischemia prevented him from working at physical or stressful jobs. He did not present a certification from Dr. Quinn or another medical expert opining to a reasonable degree of medical certainty that he was permanently disabled from accounting or executive work, or that his medical condition precluded him from receiving income from other sources.
Defendant next challenges the court's determination that he could continue paying support because of the value of certain assets that were equitably distributed to him. He argues that he had no equity in the Hamburg property and no rental income from it before October 1, 2011, and that the Fairmount property had a low value and no rental income. Defendant urges that his only remaining resource was his pension, and the court failed to recognize that New Jersey statutes and case law prohibit levies on equitably distributed pensions to satisfy a support obligation.
These arguments are unpersuasive. Judge Troiano observed that defendant had recently certified to "a retirement benefit consisting of $500, 000" and "minimal" debt. Because defendant also owned the Hamburg and Fairmount properties, the judge deemed his assets "significant."
Alimony awards interact with equitable distribution, because the court "shall consider" the effect on alimony of "[t]he equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair[.]" N.J.S.A. 2A:34-23(b)(10). However, the Legislature has enacted only one provision that dictates the interaction of alimony and equitable distribution: "When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony." N.J.S.A. 2A:34-23(b). That provision codified the holding in D'Oro v. D'Oro, 187 N.J.Super. 377 (Ch. Div. 1982), aff'd o.b., 193 N.J.Super. 385 (App. Div. 1984). See Innes v. Innes, 117 N.J. 496, 503 (1990).
Those authorities only prevent double counting at the time alimony is set. This issue does not implicate the amount of permanent alimony that defendant agreed to pay in 2005. It implicates only the finding that defendant was able to pay his alimony arrearages and child support arrearages in October 2011, due in part to the continuing value of his assets.
That distinction is already recognized in our case law. In Walles v. Walles, 295 N.J.Super. 498, 515-16 (App. Div. 1996), we upheld the ruling of a trial judge directing payment of alimony and child support arrears from the defendant's pension. We noted the difference between determining alimony and enforcing it, explaining that "[t]he judge was not using defendant's pension to determine his income for the purpose of establishing alimony; he merely considered defendant's pension as an asset available to defendant which defendant might use to satisfy past due alimony and child support obligations." Id. at 516. Similarly, defendant here had had significant support and alimony arrears, and other monetary obligations under prior orders that he was not voluntarily paying. Judge Troiano was well within his authority to utilize defendant's pension for enforcement purposes. As for the Hamburg and Fairmount properties, the court did not value them other than to note defendant's continuing ownership.
Defendant's challenges to denial of his reconsideration motion are similarly without merit. His brief acknowledges the high threshold for reconsideration and essentially rehashes his challenges to the October order.
The standard of review for the denial of reconsideration is whether the trial court abused its discretion. Triffin v. Johnston, 359 N.J.Super. 543, 550 (App. Div. 2003); Marinelli v. Mitts & Merrill, 303 N.J.Super. 61, 77 (App. Div. 1997). Reconsideration is appropriate for "that narrow corridor" of cases in which "the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, " or has obviously disregarded "or failed to appreciate the significance of probative, competent evidence." Fusco v. Bd. of Educ. of Newark, 349 N.J.Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). See also Cummings v. Bahr, 295 N.J.Super. 374, 384 (App. Div. 1996).
A party may not obtain reconsideration on the basis of information that it could have provided earlier but overlooked. Fusco, supra, 349 N.J.Super. at 463; Morey v. Borough of Wildwood Crest, 18
N.J.Tax. 335, 341 (App. Div. 1999), certif. denied, 163 N.J. 80 (2000). In addition, "the magnitude of the error cited must be a game-changer for reconsideration to be appropriate." Palombi v. Palombi, 414 N.J.Super. 274, 289 (App. Div. 2010). Any other premise for being "disappointed with a judicial determination" is instead grounds for appeal. D'Atria, supra, 242 N.J.Super. at 401.
The bulk of defendant's submissions on reconsideration substantially pre-dated his initial cross-motion or were available to him prior to that date with due diligence. Reconsideration is intended to bring to the court's attention new evidence or matters or controlling decisions that the court might have overlooked or to which it might have erred. R. 4:49-2. It is not intended to be a second bite of the apple to rectify insufficient proofs, present arguments that could or should have been presented during the initial motion, or to respond to deficiencies noted by the court during argument or in its decision. That is essentially what defendant did and, as such, Judge Troiano properly denied his motion. The only updated information was the October letter from Dr. Quinn, which was still insufficient to warrant reconsideration or a plenary hearing.
We turn now to defendant's challenge to the counsel fee awards. Rule 5:3-5(c) permits the court, in its discretion, to award attorneys fees. Gotlib v. Gotlib, 399 N.J.Super. 295, 314-15 (App. Div. 2008); see also R. 4:42-9(a) ("No fee for legal services shall be allowed in the taxed costs or otherwise, except (1) In a family action, a fee allowance . . . on final determination may be made pursuant to R. 5:35-5(c)"). "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).
In Mani v. Mani, 183 N.J. 70, 94-95 (2005), the Court summarized Rules 5:3-5(c) and 4:42-9(b) as follows:
In a nutshell, in awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees.
We discern no abuse of discretion here. Our record contains a certification from plaintiff's counsel dated May 23, 2011 in support of her motion for counsel fees in connection with the enforcement motion, detailing the Rule 5:3-5(c) factors and attaching an itemized invoice for fees and costs totaling $2466.85. Plaintiff's counsel fees were clearly significantly higher in view of the July 2011 hearing. Considering the significant arrears and the necessity of plaintiff's enforcement motion, as well as defendant's essential renewal of his prior Lepis application on cross-appeal, again unsuccessful, and failure to provide appropriate financial information, the judge was well within his discretion in awarding plaintiff a $2500 counsel fee.
On reconsideration, plaintiff's counsel again submitted a detailed affidavit and an invoice reflecting total fees and costs of $2626.35. Defendant's motion for reconsideration was without merit and unnecessarily required a defense by plaintiff. Judge Troiano expressly found persuasive and adopted in his order the rationale expressed by plaintiff's counsel in her affidavit. We discern no basis to second-guess that ruling.
Defendant's arguments regarding parenting time involving his son and challenges to his son's therapist are either moot or without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
During oral argument on March 9, 2012, defendant apparently tendered a $27, 000 check to the court that was given to him by his parents, and Judge Troiano ordered that $14, 000 be paid to plaintiff on account of outstanding child support and alimony arrears and the balance be retained by him for his living expenses. Later that day defendant faxed a letter to the court requesting the payment be applied only to child support, and the surplus be applied to future child support payments, claiming the money had been earmarked by his parents for child support because plaintiff allegedly told their son he was a "deadbeat dad." Plaintiff moved for reconsideration to correct a mathematical error in the total arrears and sought a revision of the allocation of the $14, 000 payment to 70% child support and 30% alimony.
On March 29, 2012, plaintiff's counsel issued an information subpoena to locate assets in an attempt to satisfy the October 21, 2011 and December 20, 2011 orders. Defendant filed opposition and a cross-motion seeking, in part, to allocate the entire payment to child support; recalculate child support following the parties' daughter's emancipation on August 31, 2010 before an order is sent to probation; requesting the parties' son be mandated to visit with him, attend therapy with a new therapist, participate in drug testing, and for DYFS to monitor the order and report to the court monthly. Plaintiff filed an additional certification and submitted a detailed certification by her attorney and invoice for services reflecting total fees and costs of $1402.20 in support of her motion for counsel fees.
On May 25, 2012, Judge Troiano issued an order and written opinion, revising distribution of the $14, 000 evenly between child support and alimony, and reflecting the total arrears after crediting that payment to $22, 705. He denied father's cross-motion in its entirety and awarded plaintiff the entire counsel fee certified to by her counsel. This appeal ensued.
On appeal, defendant argues:
TRIAL COURT ABUSED ITS DISCRETION BY NOT APPLYING $14, 000 PAYMENT TO CHILD SUPPORT AS DIRECT BY DEFENDANT.
TRIAL COURT ERRED BY NOT SANCTIONING PLAINTIFF'S ATTORNEY FOR UNAUTHORIZED POST-DIVORCE DISCOVERY.
TRIAL COURT ERRED BY NOT RULING ON CHILD-RELATED ISSUES.
TRIAL COURT ERRED BY NOT HOLDING A PLENARY HEARING TO RESOLVE THE REIMBURSEMENT OF COUNSEL FEES TO DEFEND LITIGATION OVER THE SALE OF IT-FIGURES AND TO RESOLVE THE REIMBURSEMENT OF $20, 000 NOTE PAYABLE.
COURT ABUSED DISCRETION BY AWARDING $1402.20 IN COUNSEL FEES TO PLAINTIFF.
Based on our review of the record and applicable law, we are not persuaded by any of these arguments and affirm.
"[T]he enforcement, collection, modification and extinguishment of unpaid arrearages in alimony and child support payments are matters addressed to the sound discretion of the court." Mastropole v. Mastropole, 181 N.J.Super. 130, 141 (App. Div. 1981)). As the judge noted, defendant provided no written proof that the gift from his parents was conditioned in any way. Although plaintiff's position as to the allocation of the $14, 000 payment was more consistent with the ratio of payments ordered on a monthly basis, the judge directed an equal allocation "[i]n the interest of fairness[.]" We discern no abuse of discretion in this ruling.
Defendant's apparent reliance on Welch v. Welch, 401 N.J.Super. 438, 444 (Ch. Div. 2008) for his challenge to plaintiff's counsel's use of the information subpoena is misplaced. There an attorney improperly issued a subpoena duces tecum for police records in a custody matter without leave of court as required by Rule 5:5-1. Id. at 442. However, in the context of enforcing judgments, a different rule applies. Rule 6:7-2(b) provides that "[a]n information subpoena may be served upon the judgment debtor, without leave of court[.]" "[P]ast-due child support payments are a judgment by operation of law on or after the date due[.]" R. 5:7-5(g). As the information subpoena was properly issued, there is no basis in law to sanction plaintiff's attorney for zealously representing her client in seeking collection of the significant outstanding support and alimony arrears.
Defendant next contends the judge should have ruled on the child-related issues not addressed in the May 25, 2012 opinion. Plaintiff responds that the issues are moot because their son is now eighteen years old.
With the exception of enforcement or correction, "[t]he ordinary effect of the filing of a notice of appeal is to deprive the trial court of jurisdiction to act further in the matter unless directed to do so by an appellate court, or jurisdiction is otherwise reserved by statute or court rule." Manalapan Realty, supra, 140 N.J. at 376; see also Pressler, Current N.J. Court Rules, comment on R. 2:9-1(a) (2013). The trial court correctly declined to rule on many of the issues involving parenting issues and their son's therapist as they were the subject of the consolidated appeal. Moreover, to a large extent, they are now moot. At oral argument before us, defendant advised that their relationship has improved.
Defendant's claims pertaining to the It-Figures litigation are not appropriately addressed in the Family Court litigation. Any defense, including a claim for indemnification based on the PSA and anything related to the note, should have been presented to the It-Figures trial judge, and Judge Troiano correctly declined to entertain the arguments under the entire controversy doctrine. See Rule 4:30A (precluding raising a claim "required to be joined by the entire controversy doctrine"). "The entire controversy doctrine embodies the principle that the adjudication of a legal controversy should occur in one litigation in only one court; accordingly, all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy." Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989). "[T]he entire controversy doctrine applies to family actions." Oliver v. Ambrose, 152 N.J. 383, 397 (1998). "Claims stemming from the same core of facts should be raised in one action." Ibid. "[B]ecause the entire controversy doctrine is an equitable principle, its applicability is left to judicial discretion based on the particular circumstances inherent in a given case." Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 323 (1995).
Lastly, we turn to defendant's challenge to the counsel fee award. In granting plaintiff's request, Judge Troiano noted he reviewed plaintiff's counsel's certification of services, the case law and the appropriate factors under Rule 5:3-5(c) He elaborated:
Plaintiff's attorney has practiced for 23 years She has been involved in this matter for a lengthy period of time Her fee of $25000 per hour is more than reasonable She is reporting approximately 55 hours spent in preparing for this matter which is not atypical for this type of matter Although defendant continues to represent himself plaintiff avails herself of competent legal counsel to advise and represent her She has the right to do so and should not be penalized especially when the relief sought by defendant is to be denied for the reasons stated herein
As previously stated an award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court
Williams v Williams 59 N.J. 229 233 (1971) Where a judge follows the law and "makes appropriate findings of fact a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion"
Yueh v Yueh 329 N.J.Super. 447 466 (App Div 2000) We discern no abuse of discretion in the award or the quantum