KRISTIN O'CONNELL v. ANDREW NATALONI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5614-05T35614-05T3

KRISTIN O'CONNELL,

Plaintiff-Appellant,

v.

ANDREW NATALONI,

Defendant-Respondent.

_______________________________________

 

Argued October 17, 2007 - Decided

Before Judges Payne, Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-5328-86.

Howard B. Leopold argued the cause for appellant (Goodman & Leopold, attorneys; Mr. Leopold, of counsel and on the brief).

Raymond Barto argued the cause for respondent (Kaps & Barto, and Chase & Chase, attorneys; Mr. Barto and Bruce E. Chase, on the brief).

PER CURIAM

In this post-judgment matrimonial action, plaintiff Kristin O'Connell appeals from that portion of the April 10, 2006 order granting her former spouse, defendant Andrew Nataloni's cross-motion for a downward modification of child support and denying her motion to recover all reasonable attorney fees she incurred in connection with her motion to enforce the terms of their Property Settlement Agreement (PSA). Plaintiff contends the trial court erred in ordering a downward modification of defendant's child support obligations, erred in its determination of the amount of imputed income attributable to defendant, failed to take into consideration the financial contributions of defendant's second wife, and awarded plaintiff an insufficient amount of attorney's fees. We affirm the orders in all respects except as to the award of counsel fees.

The parties were married in August 1983. At the time of the marriage, defendant was a third-year resident in obstetrics/gynecology (ob/gyn) at Flushing Hospital and Medical Center in Queens, New York. The only child of the marriage, H.N., was born in June 1984, at the end of defendant's third year of residency. Plaintiff, at the time of the marriage, held two bachelor's degrees and a teaching certificate, and prior to the birth of H.N., had been working for a weight-loss company. The parties reported their joint income for 1984 as approximately $31,400.

During the last ten months of defendant's third year of residency, the parties moved to Bergen County, New Jersey, to accommodate plaintiff's dislike for New York, which increased defendant's commute and negatively impacted on the time he was able to spend with H.N. Subsequently, during the summer of 1985, defendant relocated the family from New Jersey to Riverhead, New York, where defendant had been raised, where his father, also an ob/gyn physician, maintained a practice, and where defendant wanted to begin his practice. Plaintiff remained in Riverhead for a very short period of time before returning to New Jersey with then one-year-old H.N. to live with her parents in Westwood. Plaintiff filed for divorce in September 1985, and in June 1988 the parties entered into a PSA that was incorporated into the Dual Final Judgment of Divorce (JOD) granted by the court on September 14, 1988.

Under the PSA, defendant agreed to pay $9,100 per year in base child support. The agreement contained an "escalator clause" that increased child support annually in accordance with the Consumer Price Index (CPI) but also allowed defendant to contest the CPI increase if his income did not increase consistent with the CPI. Defendant also agreed to promptly pay, "upon demand," the reasonable cost of special lessons and extracurricular activities, including summer camp activities, ballet lessons, music lessons, and swimming lessons. Further, the parties also agreed that child support would continue until H.N. was emancipated, which the agreement defined as the earlier of the following events: (1) H.N.'s marriage after the age of twenty-four years, (2) H.N's death, (3) a more-than-two-year interruption of H.N.'s continued education beyond age eighteen, or (4) H.N.'s thirtieth birthday, except in the event of illness or disability.

The PSA also contained a broad provision regarding educational costs. Article 5.2 provided:

Insofar as the Father shall be financially able, he hereby agrees and undertakes to pay and be responsible for all reasonable educational expenses which shall involve the Child's attendance at pre-school (Nursery), kindergarten, grammar and high school, college, junior college, trade school, art school, music school, ballet and dance school, technical school, professional school (law, medical/etc.), and/or graduate school. The educational expenses refer[r]ed to in this subparagraph shall include but shall not be limited to application and testing fees, review courses for entrance tests, room, board, tuition, university and activity fees, required books, materials and supplies, reasonable transportation and incidental expenses.

Moreover, the parties agreed to share information "regarding the selection of the educational institutions for the Child prior to her graduation from high school[.]"

The PSA also addressed life and health insurance with the parties, agreeing that defendant would maintain a $300,000 life insurance policy for H.N.'s benefit until her emancipation as defined under the PSA, health insurance coverage, and that defendant would pay all of H.N.'s unreimbursed health care expenses. An additional provision of the agreement provided that if either party "shall experience a material change in financial circumstances," that party retained the right to seek from the court "such other and different support provisions" as may be permissible under law. Finally, the parties agreed that in the event there was a violation of the terms of the agreement, "the party at fault will pay entire counsel fees, costs and expenses of the aggrieved party."

In January 1989, defendant married Zeinab Fath-El Bab, an ob/gyn physician who maintained practices in Riverhead and Wading River. A few months later, they purchased a house in Riverhead for approximately $195,000, and were still living in that home at the time of the trial.

On January 6, 2004, nearly sixteen years after the parties entered into the PSA, plaintiff filed a motion seeking to enforce payment of child support arrears, to have all future support monies paid through the Probation Department, and for reasonable attorney's fees. Defendant filed opposition to the motion and cross-moved for modification of several of his obligations under the PSA. After plaintiff and defendant each filed additional papers in reply, the court entered an order on March 26, 2004, for a plenary hearing. Plaintiff moved for reconsideration, and sought, by way of an Order to Show Cause (OTSC), immediate payment of child support arrears, at least as to those sums defendant conceded were owed, as well as reasonable attorney's fees. The court granted reconsideration only as to child support arrears and entered judgment for $25,000 in favor of plaintiff without prejudice to the claims of either party.

The parties were afforded an opportunity to conduct discovery prior to the plenary hearing. The hearing spanned eleven non-consecutive days beginning May 23, 2005, and ending on March 24, 2006. At the outset of the hearing, the parties agreed that up until September 2001, defendant had paid all child support requested, H.N.'s high school tuition at a parochial school had been waived because of plaintiff's employment at the school, and that her college tuition costs at Fordham University (Fordham) were reduced fifty percent due to plaintiff's brother's employment at the university.

According to the exhibits introduced at trial, defendant's total indebtedness to plaintiff was in excess of $60,000, primarily representing child support arrears and H.N.'s college expenses, as well as "other expenses" she incurred on behalf of H.N. over the years, some of which dated back to 1997 and for which she had received no reimbursement from defendant.

Plaintiff explained that early in the divorce, when she tried to stop defendant from exercising overnight parenting time, she took that position only because she thought her own absence from the scene would be "very, very disheartening and disruptive" to H.N. She believed that several psychiatrists concurred in that view, but she "wholly encouraged" non-overnight parenting time. She indicated that H.N. had been used to spending most of her time with her and they were "inseparable," especially because there were some nights during defendant's residency when he did not come home and he did not spend much time with H.N. when he was home. Plaintiff admitted that she had asserted in a case information statement (CIS) dated August 31, 1985: "'It's essential that the Court acknowledges psychiatric instability of the father, and limit access to the child. There's been attempts of kidnaping [sic] by the litigant/defendant, who has been remarkably unstable throughout the marriage.'" Plaintiff also acknowledged that during the divorce proceedings, she believed that because defendant had dual citizenship, there was a risk he could flee to Italy with H.N. Plaintiff had no evidence that she tried to keep defendant informed about H.N.'s school progress, medical issues, or artwork during her schooling; she asserted that this was because defendant showed no interest in H.N.

Defendant testified that he and Fath-El Bab separately maintained their pre-marital assets. Additionally, with respect to his medical practice, he, Fath-El Bab and three other doctors operated on a "time share" basis out of the same Riverhead Medical Arts Building space that defendant had been renting since 1988. Defendant indicated the lease was in his name but that each doctor had use of the entire office during his or her allocated hours and that they all shared the rent and utility expenses. Defendant explained that although they shared the cost of a receptionist and billing person, the practice of each doctor was an independent practice with employees who worked exclusively for the particular doctor. According to defendant, he had been in a similar arrangement when he operated a practice out of the Wading River office, but could not keep up with the expenses.

According to defendant, he and his wife had never combined their medical practices together. He described their professional relationship as being competitors, and testified that they did not refer patients to each other, except that if a minor patient wanted to see a female doctor, defendant would recommend his wife. He explained that they paid professional expenses separately, had separate malpractice insurance policies, and maintained separate credit cards, although his wife paid about $50,000 of his medical malpractice costs in 2004 and 2005 when he "ran out of money."

Defendant testified that his financial circumstances took a downward turn as a result of a number of factors: (1) the shift in demographics in Riverhead due to the closing of Grumman Aircraft, a major employer in the area; (2) the reduction of ob/gyn practitioners in the area, requiring defendant to provide more volunteer services at Suffolk Hospital; (3) the switch in the 1990's from "indemnity" medical insurance that indemnified the patient against having to pay great medical expenses for office visits and hospitalization, to managed healthcare that paid defendant considerably less for patient care; (4) the increase in medical malpractice premiums; (5) unforeseen personal costs reaching a million dollars as a result of illnesses of his father and mother-in-law; and (6) indebtedness he and his wife owed to IRS in excess of $300,000. He also testified that he had been alienated from H.N. from the time the parties became estranged, despite his efforts to the contrary, and that plaintiff failed to consult him about college.

In addition to the parties, H.N., Hans O'Connell, who is plaintiff's brother and also an attorney, and Fath-El Bab testified. H.N., who was twenty at the time of her testimony, described her relationship with defendant as non-existent. She told the court that neither her mother nor anyone else said anything negative about him and that she was very young when she last saw him and would not recognize him had she seen him on the street. In his testimony, O'Connell acknowledged that he was not the attorney of record in plaintiff's divorce action but indicated that he worked closely with her attorney and was significantly involved in drafting the PSA. He also denied that either he or plaintiff ever kept H.N from defendant. Fath-El Bab's testimony described the nature of her business relationship with defendant as well as their finances insofar as maintaining their home, caring for the son born of their marriage, their lifestyle and other family obligations.

Following the plenary hearing, the court rendered its decision in a written opinion dated April 10, 2006. The court found that the PSA was enforceable except as to the child support escalator clause and defendant's obligation to contribute to H.N.'s college expenses. The court rejected defendant's contention that his child support obligation should be reduced because plaintiff had alienated H.N. from him. The court found that "both the [p]laintiff and the [d]efendant made little effort to secure parenting time." The court noted that irrespective of any conduct on the part of plaintiff, "[d]efendant decided not to pursue parenting time through the Court after he was discouraged by the [p]laintiff and her family's actions." Nonetheless, the court was persuaded that defendant had met his "threshold burden of showing that his income has been substantially diminished" by the "economic conditions in the [d]efendant's employment area[,]" warranting a review of his "obligations under the PSA."

Specifically, the court found the testimony regarding the change in Riverhead's economy, the impact upon defendant's practice occasioned by those economic conditions, along with the increase in managed health care and the cost of defendant's medical malpractice insurance premiums credible. The court noted that plaintiff failed to advance any evidence to rebut the testimony that defendant did not have a joint practice with his wife, whose income was substantially higher than his. Although plaintiff introduced as an exhibit a flyer from a golf classic and dinner in which defendant and his wife were described as "'a husband and wife team'" with a "'private practice in Riverhead and Wading River[,]'" the court accepted defendant's testimony that the flyer was issued by the dinner committee without his advance approval.

While the court was satisfied that defendant demonstrated changed circumstances that warranted a review of his obligations under the PSA, the court also found that defendant was underemployed without just cause. Citing Hudson v. Hudson, 315 N.J. Super. 577, 583 (App. Div. 1998), the court recognized that Fath-El Bab had no responsibility for any of defendant's obligations to H.N. or plaintiff. Nonetheless, the court found that "Zeinab's income is relevant in the determination of the financial resources of a divorced parent and the impact of such resources on determining a parent's contribution to college expenses. See [Hudson, supra, 315 N.J. Super. 577]." The court rejected defendant's claimed net income of $34,351 for 2004, and considering Fath-El Bab's net income as representing approximately ten percent of her gross income, the court found that defendant's net income was $60,000 or approximately ten percent of his gross income. The court likewise concluded that plaintiff's reported income for 2005 was approximately $22,000. The court determined that with two college degrees and a teaching certificate, plaintiff had the capacity to earn at least $28,000. In sum, the court concluded that based upon their combined imputed income of $88,000, defendant was responsible for sixty-eight percent of H.N.'s college costs, and plaintiff the remaining percentage of those costs.

Addressing the college costs, the court rejected plaintiff's claimed indebtedness to a benefactor, Rhoda Kalt, who allegedly loaned money to plaintiff for H.N.'s college costs. The court noted that plaintiff failed to include the amount of the loan on her CIS and that during the course of the proceedings, defendant had paid plaintiff in excess of $42,000, none of which was used to retire the loan. Rather, plaintiff testified that a substantial portion of the money was turned over to H.N. after plaintiff paid the tuition that was due. As such, the court found that "[p]laintiff received a contribution from Ms. Kalt with respect to Fordham University which does not require repayment."

Under the "Other Expenses" category of child support for which plaintiff sought reimbursement in excess of $15,000, the court noted that "[p]laintiff conceded that she did not know whether she had previously submitted all, or part, of the documentation . . . to the [d]efendant." The court ordered defendant to reimburse plaintiff $4,220, which the court found represented defendant's sixty-eight percent share of what the court determined was $6,208.84 in "other expenses."

The court denied defendant's application to have H.N. declared emancipated upon her graduation from Fordham. Relying upon Boardman v. Boardman, 314 N.J. Super. 340, 342 (App. Div. 1998), the court reasoned that "[w]hile the parties may agree to an emancipation event in the future, the Court is barred from a prospective determination." Further, the court ordered defendant to secure additional life insurance in order to maintain the $300,000 level agreed upon under the PSA, and directed defendant to "secure Blue Cross or equivalent for [H.N] so that she can secure medical care from a doctor or group in New Jersey, which is her domicile."

As to the escalator clause, the court found that the clause did not "take into account whether the [d]efendant, as the obligor, has enjoyed an increase in net income from year to year consistent with the CPI adjustment specified in the PSA." The court observed that "while the parties may have reasonably anticipated that the [d]efendant's income would increase over a period of time, it has not." To address what it perceived as the unfairness in the clause, the court ordered that the CPI escalator "shall be limited to the lower of either: (1) the CPI formula as provided [in the PSA] or (2) the rate of increase in the [d]efendant's income as reported for federal income tax purposes on a year to year basis." The court noted that plaintiff was free to challenge the net income reported each year.

On the issue of counsel fees, both parties submitted counsel fee applications indicating that they had each incurred in excess of $50,000 in counsel fees. The court noted its discretionary authority under N.J.S.A. 2A:34-23(a), Rule 4:42-9(a)(1), and Rule 5:3-5(c) to award counsel fees incurred "to enforce or collect . . . child support unless the Court finds that (a) a default was substantially justified or (b) an award of counsel fees would be unjust." The court also noted that subject to review by the court, parties are "free to agree as to the payment of counsel fees[,] Center Grove Assoc. v. Hoerr, 146 N.J. Super. 472, 474 (App. Div. 1977)[.]"

The court found that (1) both parties' motions were filed in good faith; (2) the hourly rate and time expended by each party's attorney was reasonable, given their experience and the rate charged by similarly qualified attorneys; (3) plaintiff had a need for counsel fees; and (4) "defendant has a marginal ability to contribute to her costs." The court concluded that "given the fact child support was due and [the] cost for college was due from the [d]efendant and not paid until the present motion[,] that the [d]efendant should contribute $5000 to the counsel fees due."

Thereafter, plaintiff moved for reconsideration, challenging the court's earlier rulings as to counsel fees, H.N.'s college loans, child support arrears, the finding that defendant had demonstrated changed circumstances, its determination of the amount of income to impute to defendant, the court's failure to include Fath-El Bab's income in fixing the amount of college costs payable by defendant, and its decision to fix the sixty-eight percent limitation on defendant's college tuition obligations for all collegiate years rather than as of the date defendant filed his motion seeking modification of his obligations.

In its written statement of reasons incorporated in the June 16, 2006 order denying reconsideration, the court revisited its "lodestar determination" in connection with the counsel fee award. The court explained that "[a] critical element is not just the amount of time actually expended but whether the time spent is reasonable. The [p]laintiff's time records hampered the court in this effort because of the lack of detail. See Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237 (1985)." The court further commented on the lack of detail reflected in the claimed expenses for legal research and trial preparation. Additionally, although the court declined to change the amount of imputed income, it acknowledged that its decision required further analysis and found:

5. Imputation of Income/Change of Circumstances

The Court has reviewed the [p]laintiff's analysis in which [s]he properly states that the Court opinion indicates that Dr. Zeinab Fath El-Bab['s] ("Zeinab") mean income is approximately [13]% of her gross income.

The [p]laintiff properly points out, in [her] analysis dated April 27, 2006 at page [9], the correct ratios based on the raw data.

In reviewing this matter, the Court focused on the data available for Zeinab for the years 2002 and 2003. The Court agrees that the ratios struck by the [p]laintiff are correct based on the raw data. The Court, however, took into account [] the [d]efendant's medical malpractice insurance[,] which is approximately $50,000 in excess of Zeinab. As a result, Zeinab's net income would be, for 2002, $104,532 and $51,316 in 2003 if she paid malpractice insurance at the same level as the [d]efendant. The resulting ratio of net income would then be 16.7% and 9.0% for 2002 and 2003, for an average ratio of 12.5%.

The Court should have, but did not, provide this analysis to the parties in its decision. The parties now have the benefit of the Court's analysis for their review.

As a result, the Court finds that it properly fixed the imputed income of the [d]efendant when the foregoing is considered. In addition, the Court's opinion clearly sets forth the other factors considered.

As a result, the Court finds that the imputed income of $60,000 was appropriate.

Plaintiff filed a Notice of Appeal on June 30, 2006. Plaintiff presents the following points for our consideration on appeal:

POINT I

THE LOWER COURT'S ERRORS IN LAW AND FACTS ARE REVIEWABLE BY THE APPELLATE COURT.

POINT II

THE LOWER COURT INCORRECTLY FOUND THAT DEFENDANT HAD CHANGED CIRCUMSTANCES WARRANTING DOWNWARD MODIFICATION OF THE PSA. IN FACT, DEFENDANT'S FINANCIAL POSITION GREATLY IMPROVED[.]

POINT III

THE LOWER COURT IMPROPERLY REWROTE THE PSA.

POINT IV

ANY OBLIGATIONS THAT ACCRUED PRIOR TO FEBRUARY 2004 CANNOT BE MODIFIED AS A MATTER OF LAW.

POINT V

ZEINAB'S FINANCES SHOULD HAVE BEEN CONSIDERED.

POINT VI

PLAINTIFF IS ENTITLED TO HER REASONABLE ATTORNEYS' FEES.

POINT VII

THE LOWER COURT ERRED BY FINDING THAT DEFENDANT WAS NOT LIABLE FOR ANY OF [H.N.]'S COLLEGE LOANS.

POINT VIII

THE COURT IMPROPERLY MODIFIED THE ESCALATOR CLAUSE.

We have carefully considered the record in light of the arguments advanced by plaintiff in this appeal. We are convinced that with the exception of the counsel fee award, plaintiff's contentions are entirely without merit. R. 2:11-3(e)(1)(E). We therefore affirm substantially for the reasons stated by the trial judge in his well-reasoned written opinion of April 10, 2006 and written statement of reasons dated June 16, 2006. We add the following comments.

Our review of the factual findings of a judge sitting without a jury is quite limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord deference to the judge's factual findings, and our task is to determine whether the findings are supported by substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms, supra, 65 N.J. at 483-84. If the judge's factual findings are supported by the evidence, an appellate court should not disturb them. Rova Farms, supra, 65 N.J. at 484. In particular, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

I.

It is without dispute that "courts possess the equitable authority to modify privately negotiated property settlement agreements." Addesa v. Addesa, 392 N.J. Super. 58, 66 (App. Div. 2007) (citing Conforti v. Guliadis, 128 N.J. 318, 323 (1992)). "While spousal agreements are presumed valid, only those agreements that are 'fair and just' will be enforced." Ibid. (quoting Miller v. Miller, 160 N.J. 408, 418 (1999)). To that end, where changed circumstances demonstrate that it is no longer fair and equitable to enforce its provisions, courts will intervene. Lepis v. Lepis, 83 N.J. 139, 148 (1980).

Here, the court considered the testimony and found that given the proofs regarding changed circumstances, enforcement of the PSA was no longer equitable with regard to the escalator clause and H.N.'s college expenses. The trial judge, as the fact-finder, was free to accept or reject any relevant testimony. Defendant presented substantial testimony about the changing economic and demographic factors in the Riverhead area. Plaintiff did nothing to undermine or refute this testimony, so the court was entitled to rely upon those statements as facts in deciding the case. As the court noted:

The [p]laintiff did not retain a forensic expert to testify as to the [d]efendant's income or whether the [d]efendant has a joint practice with Zeinab and is masking his real income by either diminishing his income, and passing it to Zeinab, or inflating his expenses by assuming responsibility for expenses more properly chargeable to Zeinab.

Moreover, in making this observation, we disagree, as plaintiff argues, that the court shifted the burden of proof. Rather, the court found that the evidence defendant presented was both credible and unrefuted. In pointing out that plaintiff failed to produce evidence, including expert testimony on the subject of defendant's income, the court did not shift the burden of proof but simply highlighted the unrebutted nature of the evidence defendant presented.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms, supra, 65 N.J. at 484. Further, plaintiff acknowledged that for many of the "other expenses" category, some of which dated back to 1997, she could not recall whether she submitted any invoices, and presented no evidence of any indebtedness to H.N.'s benefactor, Rhoda Kalt. Consequently, applying the deferential standard that we accord to a trial judge sitting as a fact-finder, we find no error in the judge's determination that the economic conditions in Riverhead, where defendant maintained his practice, along with a change from an indemnity billing practice to a managed care billing practice, and the defendant's medical malpractice premiums demonstrated changed circumstances that warranted a downward modification of defendant's child support obligations. Nor do we conclude that the judge's findings as to the amount of imputed income attributed to defendant and plaintiff were '"clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Formosa v. Equitable Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979)).

II.

We next turn our attention to the $5,000 counsel fee the court awarded to plaintiff. We are not, on this record, persuaded that the court's decision reflects its consideration of Article 19.3 of the PSA, which expressly provides that "[i]n the event either [party] hereafter commits a violation hereunder, the party at fault will pay entire counsel fees, costs and expenses of the aggrieved party." Plaintiff contends that because defendant defaulted in his support payments, under both N.J.S.A. 2A:34-23(a) and the PSA, plaintiff was entitled to payment of all of her reasonable attorneys' fees.

In its decision, the trial court set out the legal standards for the award of counsel fees, including Rule 4:42-9(a)(1), Rule 5:3-5(c), N.J.S.A. 2A:34-23(a), and numerous cases. Additionally, in its analysis, the court noted that the "[p]arties are, of course, free to agree as to the payment of counsel fees . . . subject to review by the Court that the fees are reasonable[,]" citing Center Grove, supra, 146 N.J. Super. at 474, and Belfer v. Merling, 322 N.J. Super. 124 (App. Div.), certif. denied, 162 N.J. 196 (1999).

When plaintiff filed her January 2004 enforcement motion, she claimed that in excess of $60,000 in child support, tuition and "other expenses" had accrued. It was only through the initiation of the enforcement action that defendant began to make any payments. Plaintiff incurred nearly $57,000 in counsel fees, but defendant was ordered to pay only $5,000. Defendant paid his own attorney $53,000 during the pendency of the proceedings.

The court's decision did not address the PSA's provision regarding counsel fees. It is true that defendant eventually paid plaintiff $42,000 during the course of the legal proceedings, pursuant to interim orders, so that arrearages were no longer an issue to be addressed in the trial court's decision. Plaintiff, however, was justified in pointing out that defendant unilaterally ceased paying child support sometime after September 2001. A that time, H.N. was seventeen years old and defendant was still under an obligation to pay $9,100 in base child support, plus annual increases. Consequently, when plaintiff filed her motion to enforce litigant's rights, defendant's child support arrears alone had risen to over $22,000.

As a general rule, courts strive to enforce contracts as the parties intended. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (citing Henchy v. City of Absecon, 148 F. Supp 2d, 435, 439 (D.N.J. 2001), Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960). Nonetheless, the interpretation and enforcement of divorce agreements are not governed solely by contract law, as ordinarily "'[c]ontract principles have little place in the law of domestic relations." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999). If, however, a court determines that enforcement of a particular provision contained in a PSA is no longer fair and equitable, at a minimum the court must place its reasons for departing from the agreement on the record. R. 1:7-4(a). We have previously noted that "an articulation of reasons is essential to the fair resolution of a case." Schwartz v. Schwartz, 328 N.J. Super. 275, 282 (App. Div. 2000). That was not done here.

It may be that the court tailored the counsel fee award to the amount of fees needed to compel payment of the overdue child support amounts, as distinguished from the fees needed to address the "other expenses[,]" many of which the court viewed as unproven or stale. Plaintiff's motion asserted that defendant owed over $38,000 in tuition, extra-curricular, and medical expenses that plaintiff claimed defendant was responsible to pay. The court found, however, that only $6,208 in "other expenses" were payable by defendant, and it limited defendant's payment obligation to $4,220 or sixty-eight percent of that amount. Hence, the court may have concluded that the PSA's provision for payment of the "entire counsel fees, costs and expenses" applied only to the fees related to the base child support amount plus the fees related to the reduced amount of the "other expenses" it awarded. Alternatively, the court may have determined that defendant's economic situation also required modifying the counsel fee provisions of the PSA. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). We are unable, however, to definitely discern why the court failed to enforce the counsel fee provision of the PSA given defendant's clear violation of its child support obligation provisions.

In summary, the counsel fee award is vacated and remanded for further proceedings consistent with this opinion. The court's orders of April 10, 2006 and June 16, 2006 are affirmed in all other respects.

Affirmed in part, vacated in part and remanded for further proceedings consistent with this opinion.

 

Zeinab Fath-El Bab is incorrectly identified in the plenary hearing transcripts as Zina Fathelbab.

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A-5614-05T3

March 12, 2008