CAROLYN WOODRUFF v. ANGELO FALCONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4541-03T14541-03T1

CAROLYN WOODRUFF,

Plaintiff-Appellant,

v.

ANGELO FALCONE,

Defendant-Respondent.

________________________________

 

Submitted December 19, 2005 - Decided January 12, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part, Camden

County, Docket No. FM-4-1911-03.

Klineburger & Nussey, attorneys for appellant

(D. Ryan Nussey, on the brief).

Gerstein & Grayson, attorneys for respondent

(Deena L. Betze and Bruce P. Matez, on the brief).

PER CURIAM

Plaintiff, Carolyn Woodruff, appeals from the March 12, 2004 order of the Family Part awarding defendant, Angelo Falcone, $9000 in counsel fees. We reverse and remand.

We briefly recite the facts and procedural history. The parties were married on December 29, 1987, had two children -

Angelo, Jr. born December 10, 1989, and Alicia, born May 5, 1991, separated on September 1, 2002, and divorced by final judgment (FJD) on September 4, 2003. The FJD incorporated a property settlement agreement (PSA) executed on September 19, 2002, and a consent order of July 24, 2003. For present purposes, the PSA not only resolved all issues of custody, support and equitable distribution, but also provided for a mutual waiver of counsel fees:

The parties agree that each shall bear the expense of his or her own counsel fees for services rendered in connection with the separation of the parties and in the negotiations leading up to and the making of this Agreement. The parties further agree that no additional request for counsel fees shall be addressed to any court should divorce or any other legal proceeding affecting the marriage between the parties subsequently result. The parties specifically agree that no request for counsel fees shall be made by either party so long as there is adherence to the terms of this Agreement.

Another provision of the PSA carves out an exception to this general waiver and provides for the payment of attorney's fees by a party who seeks to modify the terms of support in violation of the agreement:

Both parties recognize that should either attempt to come back to court to modify the terms of this Section of the Agreement, that the other party will suffer substantial and irreparable injury. Accordingly, each party agrees to be responsible in the eventuality that he or she makes any application to the Court in violation of the provisions of this Agreement, for all legal fees incurred by the other in defending said application.

Following execution of the PSA, but prior to entry of the FJD, plaintiff filed two domestic violence complaints against defendant, related criminal complaints alleging trespass and harassment, and a complaint for custody. Both domestic violence matters were ultimately dismissed, and with respect to the second, defendant was awarded $707 in counsel fees on July 22, 2003, for his appearance on July 10, 2004, when plaintiff obtained an adjournment of the matter. Defendant's subsequent motion to consolidate and dismiss the custody and criminal complaints was resolved by consent order of July 24, 2003, wherein plaintiff agreed to dismiss her custody complaint, consolidate the various criminal complaints in the pending divorce action, cooperate in the dismissal of all such charges, and amend the divorce complaint to allege grounds of desertion instead of eighteen months of separation.

The matter proceeded to an uncontested divorce on September 4, 2003 and, as noted, the FJD incorporated both the PSA and the July 24, 2003 consent order without modification or amendment. Unfortunately, this did not end the litigation between the parties. Despite the consent order, plaintiff pursued the criminal complaints against defendant, which were downgraded and relisted in the municipal court. It was only after plaintiff failed to appear twice on scheduled trial dates that the criminal charges were ultimately dismissed.

Only four months after the entry of the FJD, plaintiff also filed a motion seeking an increase in spousal and child support, although she alleged neither changed circumstances nor failure to make timely payments. Later, she filed yet another post-judgment motion seeking to lift civil restraints as they applied to her. In response to these two motions, defendant cross-moved for, among other things, consolidation of the new criminal charges into the divorce litigation and their dismissal, and counsel fees. Plaintiff subsequently withdrew her motion to lift civil restraints and eventually entered into a consent order resolving all issues in both applications save defendant's request for counsel fees.

As to the latter, defendant's counsel submitted a fee certification, pursuant to Rule 4:42-9 and Rule 5:3-5(c), for $17,400 in legal services. This was later amended at the March 12, 2004 hearing to $16,746.18, which included the $707 previously awarded to defendant on July 22, 2003, and remained unpaid. The bulk of the 82 billable hours for which fees were requested were expended on matters that preceded entry of the FJD, and, save for the services rendered on July 10, 2003, for which $707 had already been assessed, pertained to matters for which no counsel fee award was either sought or approved at the time the costs were actually incurred. The remaining twenty-eight billable hours represented work for services provided post-judgment, for which the PSA explicitly provided an exemption from its general waiver of attorneys' fees clause.

After argument on defendant's application for counsel fees, the judge deducted $2600 from the requested amount of $16,746.18 and awarded defendant $9000 of the reduced amount of $14,286.18. The judge concluded:

And Mr. Nussey, you have not been involved in this case from day one, and I don't know if I've been involved from day one, but it just certainly seems that way. I think I heard the first domestic violence. I certainly heard the second domestic violence, and I've heard all the subsequent motions that have occurred here.

The fact that matters are resolved by consent order doesn't mean that there was grounds to file whatever led to the consent order to begin with; okay? The fact that counsel are able to resolve issues doesn't mean that the person bringing the matter before the Court had reason to bring it to the Court to begin with.

In this case I find that time and time again Miss Woodruff brought matters into Court and forced Mr. Falcone to expend money on counsel fees.

On appeal, plaintiff challenges the counsel fee award as an abuse of discretion. We agree in part.

As a threshold matter, we note that the trial judge's decision is bereft of any real findings of fact or conclusions of law. While counsel fee awards in Family Part matters are within the sound discretion of the trial court, Rule 4:42-9(a)(1); Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000); Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998), and ordinarily we defer to its findings except "in the clearest case of abuse of discretion," Yueh, supra, 329 N.J. Super. at 466 (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)); see also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), we, nonetheless, cannot undertake meaningful appellate review in the absence of a statement of findings and conclusions. R. 1:6-2; R. 1:7-4; Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003). This obligation of the motion judge is a significant one, for it permits us to perform our review in light of the expression of reasons articulated by the motion judge. Without such a statement, our ability to determine whether the judge mistakenly exercised his or discretion, failed to consider relevant principles of law, or reached a conclusion that is not supported by the evidence is significantly impaired.

Moreover, although the discretion vested in the trial court is broad, Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992), it "is not unfettered." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990); see also Brennan v. Brennan, 187 N.J. Super. 351, 357-55 (App. Div. 1982); R. 4:42-9. Indeed, Rule 5:3-5(c), which governs the award of attorneys' fees in family matters and incorporates the requirements of Rule 4:42-9 therein, expressly enumerates the factors a court is to consider in determining the amount of the fee award:

(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).]

Aside from the suggestion of a lack of good faith on plaintiff's part, there is no mention in this case of any of the other factors set forth in Rule 5:3-5(c) or any indication they were appropriately applied in weighing the issue of counsel fees. Also lacking is any critical "review [of] the nature and extent of the services rendered, the complexity and difficulty of the issues determined, and the reasonableness and necessity of the time spent by counsel in rendering the legal services." Chestone v. Chestone, 322 N.J. Super. 250, 257 (App. Div. 1999).

Perhaps the most glaring deficit in this case is the court's failure to consider the parties' own PSA, which expressly and absolutely waives their right to seek counsel fees incurred up until the execution of the agreement on September 19, 2002, and even thereafter, conditioned only on their continued "adherence to the terms of this Agreement." On this score, we note that "matrimonial agreements, . . . which are fair and just, fall within the category of contracts enforceable in equity," Petersen v. Petersen, 85 N.J. 638, 642 (1981) subject, however to "Rule 4:50-1 considerations as well as considerations of unconscionability, fraud or overreaching." Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995) (citing Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995)), certif. denied, 142 N.J. 455 (1995); and see Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div.), certif. denied, 137 N.J. 165 (1994); Morris v. Morris, 263 N.J. Super. 237, 241-44 (App. Div. 1993).

Here, the court never explained its refusal to enforce the terms of the parties' PSA, despite its rather clear and unequivocal language of mutual waiver. Instead, the court favorably entertained defendant's fee application filed well after entry of final judgment for services rendered largely in pre-judgment litigation. And this, despite the absence of any finding, as required by the PSA, that plaintiff's pre-judgment litigation, by way of her custody, domestic violence and related criminal complaints, failed to adhere to the express terms of the PSA.

Significantly, the FJD, entered on September 4, 2003, resolved all outstanding issues as of that time, yet made no provision for either the award of counsel fees or the express reservation of any counsel fee issue for future disposition. Indeed, as of the date of the FJD, no claim for counsel fees, other than those partially incurred in defense of plaintiff's second domestic violence complaint and already awarded, was even made. Quite apart from the limitations expressed in the PSA, we view defendant's failure to reserve in the FJD the right to seek counsel fees in futuro as fatal to his belated request pre-judgment counsel fees months after they were incurred and the hearings to which they attach held. See Salch, supra, 290 N.J. Super. at 444-45; see also Coleman v. Fiore Bros., Inc., 113 N.J. 594, 610 (1989). Thus, in our view, any claim for counsel fees incurred during pre-judgment litigation not otherwise covered in the divorce judgment or earlier court orders, and made for the first time well after entry of the final judgment of divorce, should have been barred as effectively waived.

Post-judgment counsel fees, on the other hand, are clearly distinguishable. Indeed, the PSA treats fees incurred post-judgment differently. In such instances, the PSA reverses the presumption that each party is responsible for his or her own fees, and it expressly provides that the party seeking post-judgment modification is responsible for the other's counsel fees in defending any application made "in violation" of the PSA.

Nevertheless, although an award of counsel fees both in defense of plaintiff's post-judgment modification motions, and in affirmative enforcement of the PSA, may have been appropriate and consistent with the parties' express agreement, there is no specific finding in this regard. Equally absent from this record is any indication as to what portion of the $9000 counsel fee award was for defending against plaintiff's post-judgment activity whether or not in violation of the PSA, or in affirmatively enforcing its terms. Therefore, even if so inclined, we are unable to independently measure the propriety of the ultimate counsel fee award against the parties' own agreed-upon requirements. The Family Part's failure to consider the PSA and to distinguish between pre- and post-judgment litigation requires us to reverse the order entered and remand for further proceedings.

We emphasize, however, that we do not reject as out of hand the judge's consideration of plaintiff's apparent lack of good faith. As noted, this is indeed a relevant consideration. R. 5:3-5(c). But it is only one of many factors in the mix of considerations to be taken into account in determining the propriety and amount of a counsel fee award. Ibid.; Williams v. Williams, 59 N.J. 229, 233 (1971); Rosenberg v. Rosenberg, 286 N.J. Super. 58, 65 (App. Div. 1995). Included are "any other factor[s] bearing on the fairness of [the] award." Rule 5:3-5(c). In this case, that necessarily includes consideration of the parties' PSA, which was not part of the weighing process below, and which, on remand, must be properly considered.

 
Reversed and remanded.

We note the additional concern that services rendered to defendant in the defense of complaints in the municipal court instituted by plaintiff may not be "services rendered within the framework of proceedings addressed in Rule 4:42-9(a)(1)." Heinl v. Heinl, 287 N.J. Super. 337, 350 (App. Div. 1996).

(continued)

(continued)

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A-4541-03T1

January 12, 2006