KIM M. NITZ v. SEAN P. FITZPATRICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0505-05T30505-05T3

KIM M. NITZ,

Plaintiff-Appellant,

v.

SEAN P. FITZPATRICK,

Defendant-Respondent.

______________________________

 

Submitted May 17, 2006 - Decided July 13, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Chancery Division,

Family Part, Bergen County, Docket

No. FM-02-237-01.

Kim M. Nitz, appellant pro se.

Sean Fitzpatrick, respondent pro se.

PER CURIAM

This case involves a particularly acrimonious matrimonial dispute. The issues on appeal concern post-judgment applications to enforce defendant's financial obligations to plaintiff. Specifically, plaintiff Kim M. Nitz appeals the trial court's denial of her application to incarcerate her former husband, defendant Sean P. Fitzpatrick, as a sanction for his failure to pay $10,759.64 ordered by the court on May 13, 2005. Plaintiff also appeals the trial court's denial of her application for defendant to reimburse her for attorneys' fees, in the amount of $3,262.87, incurred in connection with enforcing the May 13, 2005 orders.

Defendant argues that his obligation to plaintiff is limited to $13,247.54, and, that pursuant to a court order dated May 6, 2005, he is paying this indebtedness at a rate of $500 per month. Based on our review of the record, we reject defendant's contention as inaccurate. We are satisfied, however, that the matter needs to be remanded for the trial court to determine defendant's ability to meet his additional financial obligation to plaintiff, for the $10,759.64 owed pursuant to the May 13, 2004 order, and, if necessary, for the court to establish an appropriate payment schedule.

We need not recite the lengthy procedural history of this highly contentious case. Suffice it to say that the financial relief ordered by the court in plaintiff's favor on May 13, 2005, remains outstanding. We leave it to the sound discretion of the trial court to fashion an appropriate sanction after it has obtained a complete and up-to-date accounting of defendant's financial status. The court is authorized, of course, to order defendant's incarceration, if it is satisfied that his refusal to pay is willful. Pasqua v. Council, 186 N.J. 127, 141 (2006); R. 5:3-7(b); R. 1:10-3.

Plaintiff also argues that the trial court erred in denying her application for counsel fees for enforcement of the May 13, 2004 orders. In considering a counsel fee application, the trial court is required to review the financial capacity of each party to conduct the litigation and the good or bad faith of each party. N.J.S.A. 2A:34-23. The award of counsel fees in a matrimonial matter rests in the discretion of the trial court and must be reviewed using the abuse of discretion standard. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); Heinl v. Heinl, 287 N.J. Super. 337, 349-50 (App. Div. 1996). Absent a clear abuse of discretion, a trial court's award of counsel fees should not be disturbed. Packard-Bamberger & Co., supra, 167 N.J. at 443-44.

R. 4:42-9(a)(1) authorizes an award of legal fees and refers to R. 5:3-5, which lists factors to be considered in awarding legal fees in a matrimonial matter. In determining the amount of the fee, the court should 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; (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.

[R. 5:3-5(c).]

To the extent relevant, the court must consider the requesting party's need, the other party's ability to pay, the good and bad faith of each party, and the reasonableness of the positions advanced by them. R. 5:3-5(c). Bad faith includes (1) pursuit of relief to which one knew or should have known that he or she was not reasonably entitled to under the facts or the law, (2) intentional misrepresentation of facts or law and (3) vexatious or wanton acts or acts initiated to oppress one's opponent. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992).

A trial court must give its reasons when deciding an application for attorneys' fees. Clarke v. Clarke, 359 N.J. Super. 562, 572 (App. Div. 2003). A trial court is required to "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right. . . ." R. 1:7-4(a). A trial court may not simply provide naked conclusions, but "must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980); Crews v. Crews, 164 N.J. 11, 20 (2000).

Here, based on the record before us, the trial court summarily denied plaintiff's counsel fees, without articulating any factual findings or conducting the required legal analysis. We are therefore compelled to remand this matter for the court to make the required findings and state, with specificity, the legal basis for its ruling.

Reversed and remanded. We do not retain jurisdiction.

 

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A-0505-05T3

July 13, 2006