MATTHEW PODOLNICK v. SHERI PODOLNICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5380-04T15380-04T1

MATTHEW PODOLNICK,

Plaintiff-Appellant,

vs.

SHERI PODOLNICK,

Defendant-Respondent.

__________________________________

 

Argued: April 24, 2006 - Decided May 17, 2006

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Morris County, Docket No. FM-14-363-02.

Michael Dube argued the cause for appellant (Sherman, Silverstein, Kohl, Rose & Podolsky, attorneys; Mr. Dube, of counsel and on the brief).

Salvatore A. Simeone argued the cause for respondent (Cutler, Simeone, Townsend, Tomaio & Newmark, attorneys; Mr. Simeone, of counsel and on the brief; Mario A. Ferraro, on the brief).

PER CURIAM

In this post-judgment matrimonial appeal, plaintiff Matthew Podolnick appeals from an order requiring him to pay counsel fees to defendant Sheri Podolnick incurred by her to enforce provisions of the Judgment of Divorce and subsequent orders. We reverse and remand for further consideration of plaintiff's ability to pay counsel fees.

The parties were married on April 9, 1989. The couple have two children: Jacob, born July 25, 1992, and Chaz, born July 5, 1996. Chaz suffers from Spinal Muscular Atrophy, a disorder affecting his motor skills, respiratory system and mobility. The couple divorced on June 17, 1997, and entered into a property settlement agreement on June 19, 1998. Defendant has primary residential custody of the boys. Plaintiff initially had visitation with the boys one night per week, overnight weekend visitation with Jacob every other weekend, overnight visitation with Chaz one weekend per month, and on some holidays.

On one weekend visit, while plaintiff was removing Chaz's body and leg braces, Chaz suffered a fracture to his arm. The incident was investigated for evidence of abuse or neglect, but no such evidence was found and the case was closed.

The relationship between the parties is certainly not amicable, especially as it pertains to issues regarding the children. Motions and cross-motions have been filed to enforce various rights. Plaintiff filed several motions to enforce his right for access to his children. On June 4, 2003, defendant filed a post-judgment motion to enforce litigant's rights against plaintiff for alleged violations of the couple's property settlement agreement. Defendant claimed that plaintiff had been late in making child support payments and in some instances, had provided insufficient checks. Defendant also requested that the court increase plaintiff's child support obligation. Defendant also claimed that plaintiff had not satisfied his obligation for the children's unreimbursed medical costs. Defendant requested an accounting of a trust account containing proceeds from a legal action brought on Chaz's behalf, and proof that he maintained an irrevocable life insurance policy. Finally, defendant requested counsel fees.

In response, plaintiff filed a certification in opposition to defendant's motion and in support of his cross-motion. Plaintiff asked the court to find defendant in contempt of prior court orders; to compel increased visitation with Chaz; to compel defendant to allow plaintiff to use her van to transport Chaz during his visitation time; to compel Chaz to attend therapy with the court-appointed therapeutic monitor; to direct defendant to discontinue unauthorized use of plaintiff's identity with medical providers; to direct the court-appointed therapeutic monitor to report on defendant's progress and conduct as it relates to therapy; to compel defendant to provide an updated Case Information Statement (CIS); to compel defendant to provide an accounting of the settlement money received from the litigation brought on Chaz's behalf; and finally, to make defendant responsible for dental expenses because she violated the settlement agreement by changing dentists.

In his August 15, 2003 order resolving both motions, the motion judge ordered both parties to meet with Dr. Montgomery, the court-appointed therapeutic monitor. Plaintiff was ordered to provide defendant with his tax return and a letter from his employer regarding his compensation. Plaintiff was ordered to reimburse plaintiff for Chaz's summer school expenses, to pay defendant for unreimbursed medical expenses (or to file a motion if he disputed them), to supply defendant with "Explanation of Benefits" forms, to provide defendant with proof of life insurance, and to provide evidence of the disposition of funds received in the lawsuit filed on Chaz's behalf. The judge denied the application for attorney's fees without prejudice, but included a provision allowing defendant to assert fees incurred if there were further applications regarding this matter.

On December 1, 2003, defendant filed another motion. Defendant claimed that plaintiff had failed to make his child support payments in a timely fashion and failed to make retroactive payments. Defendant also requested an in camera review of plaintiff's redacted tax return to ensure plaintiff adequately represented his income. Additionally, defendant alleged that plaintiff failed to obtain the required irrevocable life insurance policy. Defendant requested that the therapeutic monitor be changed. Defendant also claimed that plaintiff failed to pay his share of the children's unreimbursed medical expenses incurred after the previous court order. Finally, defendant requested counsel fees and costs.

Plaintiff responded and filed a cross-motion. Plaintiff requested that Dr. Yucht be appointed as the therapeutic monitor; to compel defendant to cooperate with Dr. Yucht; to compel defendant to pay twenty-five percent of the cost for therapy with Dr. Yucht; to obtain a report from Dr. Montgomery detailing her observations, opinions and conclusions regarding both parents; to compel defendant to pay unreimbursed costs; and finally, to impose sanctions on defendant for making a motion "in bad faith."

Defendant's request for counsel fees and costs was deferred. The motion judge stated that he could not make a decision on the application for fees and asked the parties to submit papers on the issue.

On May 4, 2005, the motion judge ordered plaintiff to pay $6,191.50 to defendant for counsel fees and costs. The order recites that the judge considered Rule 5:3-5(c) and found that several factors supported his decision to award counsel fees to defendant. He determined that as a "successful attorney," plaintiff makes $95,000 and has the ability to pay. He also noted that defendant's positions were reasonable and prevailed. He found that defendant had exhausted her retainer and she had already paid substantial fees. He also determined that prior orders had been entered in defendant's favor and defendant had prevailed on this motion to enforce prior orders. Finally, the judge determined that the amount claimed was reasonable and necessary.

Attorneys fees may be awarded in actions to enforce the terms of interspousal agreements. R. 4:42-99(a)(1) and R. 5:3-5(c). All applications for fees shall be supported by an affidavit of services addressing the factors enumerated by R.P.C. 1.5(a). Those factors concern the reasonableness of the fee and include the time and labor required, the fee customarily charged for similar legal services, the amount of time expended and the results obtained, the experience, and the reputation and ability of the lawyer performing the service. R.P.C. 1.5(a)(1), (3), (4) and (7). In determining the amount of the fee award, the court must consider not only the information required by Rule 4:42-9 and R.P.C. 1.5(a), but also the factors outlined in Rule 5:3-5(c). Those factors include the financial circumstances of the parties, the ability of the parties to pay their own fees and to contribute to the fees of the other, the reasonableness and good faith of the positions advanced by each party, and the extent of the fees incurred. The judge shall also consider whether either party has been required to contribute to the fees of the other party and, if so, the amount of any prior award, the result obtained, whether the fees were incurred to enforce existing orders, and any other factor bearing on the fairness of an award. R. 5:3-5(c).

The decision to award counsel fees is discretionary, Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004), nevertheless the court must consider the factors delineated by rule and give reasons in support of the decision. Clark v. Clark, 359 N.J. Super. 562, 572 (App. Div. 2003). The ability to pay fees incurred by the other party and the need of the other party are paramount considerations. Pullen v. Pullen, 365 N.J. Super. 623, 629 (Ch. Div. 2003).

Here, the judge found that plaintiff earned $95,000 a year as an attorney. He also found that he "has the ability to pay." The judge has not provided any findings in support of this ultimate fact, and we do not discern sufficient information in this record from which the judge could reach that ultimate finding. See Boardman v. Boardman, 314 N.J. Super. 340, 349-50 (App. Div. 1998) (denial of counsel fee remanded in absence of analysis of requisite factors).

Ability to pay is not simply a function of the amount earned and a disparity of income between the parties. Such a determination is also informed by the expenses of the obligor, the existence of other assets and their liquidity. Argila v. Argila, 256 N.J. Super. 484, 494 (App. Div. 1992); Lavene v. Lavene, 148 N.J. Super. 267, 277 (App. Div.), certif. denied, 75 N.J. 28 (1977). Here, plaintiff pays $366 each week in child support. He is also obligated to pay 75% of the children's unreimbursed medical expenses and other expenses for the children, such as summer camp. The judge had plaintiff's redacted federal income tax return but that document provides only a limited amount of information. The limited amount of unearned income reported on that document suggests to us that plaintiff has limited savings. Concentration on plaintiff's gross income also does not account for federal and state income taxes, other mandatory deductions from earned income including Social Security, and his child support obligations. It also does not account for any reasonable obligations incurred by him to provide reasonable shelter and transportation. In short, in most cases ability to pay is dependent on many more factors than simply the gross salary.

We remand, therefore, for further consideration of plaintiff's ability to pay the fees incurred by defendant. This inquiry may be assisted by filing of a CIS by plaintiff. See R. 5:5-2. We perceive no reason for defendant to file a CIS because it is undisputed that defendant's financial means are very limited.

Reversed and remanded. We do not retain jurisdiction.

 

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A-5380-04T1

May 17, 2006