CHERYL CORIN-BONDER v. IRVIN BONDER

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1262-08T31262-08T3

CHERYL CORIN-BONDER,

Plaintiff-Appellant,

v.

IRVIN BONDER,

Defendant-Respondent.

________________________________________________________________

 

Argued May 13, 2009 - Decided

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Morris County, Docket No. FM-14-1062-06.

Barry A. Kozyra argued the cause for appellant (Kozyra & Hartz, LLC, attorneys; Mr. Kozyra, of counsel; Betsy W. Bresnick and Mr. Kozyra, on the brief).

C. William Bowkley, Jr., argued the cause for respondent.

PER CURIAM

Plaintiff Cheryl Corin-Bonder appeals from the July 30, 2008 final judgment of divorce (JOD) in which the trial judge, after a seven-day trial, denied her application for attorney's fees and expert costs. She also appeals from the August 19, 2008 denial of her motion for reconsideration. In particular, plaintiff argues that the denial of her counsel fee request must be reversed because the judge prevented her from submitting the certification of services required by Rule 4:42-9(b); and erroneously concluded that plaintiff was not entitled to counsel fees because defendant Irvin Bonder's "position" in the litigation was neither "unreasonable" nor "lack[ing] good faith."

While we agree that a certification of services was never presented to the trial judge, we disagree with plaintiff's contention that she had no opportunity to do so. Moreover, we discern from the judge's written opinion a conclusion that no matter how reasonable plaintiff's attorney's fee request might have been, the judge would nonetheless have denied that request in light of the respective financial position of the parties at the conclusion of the litigation. On the issue of bad faith, the record is so sparse as to make it impossible for us to evaluate the judge's conclusion that defendant did not act in bad faith, and consequently we have no basis upon which to reject the judge's findings on that issue. We affirm.

I.

The parties married on June 29, 1980, separated on December 31, 2005, and began divorce proceedings with plaintiff's filing of her complaint on March 8, 2006. Plaintiff is a teacher, and defendant is a urologist. The pendente lite phase of the proceedings was acrimonious, which we discuss later in this opinion.

The divorce trial began on April 2, 2008. On the second day of trial, April 4, 2008, the parties settled, and placed on the record, most of the issues presented, including alimony, child support, life insurance, equitable distribution of plaintiff's interest in defendant's medical practice, certain expenses associated with plaintiff's automobile, and college tuition expenses for the parties' two daughters, one of whom is currently finishing her junior year at a private preparatory school, and the other finishing her junior year at Johns Hopkins University.

Trial continued for five additional days, ending on June 16, 2008, and was limited to the two remaining issues: allocation of marital debt and plaintiff's request that defendant be ordered to pay her counsel fees. In a comprehensive written opinion of July 30, 2008, Judge Weisenbeck apportioned the $134,499.24 marital debt, by imposing 36.3% of the responsibility upon plaintiff, $48,829.88, and 63.7% upon defendant, $85,669.36. In the course of his July 30, 2008 opinion, Judge Weisenbeck reviewed in considerable detail the pendente lite proceedings, because the pendente lite orders had a significant impact on the parties' relative financial positions at the time the trial began on April 2, 2008. As Judge Weisenbeck noted, the judge who was then assigned to the matter entered a pendente lite support order on March 15, 2007, which required defendant to pay all of plaintiff's Schedule A and B expenses, all of her life insurance premiums, all medical expenses, and, retroactive to January 6, 2007, pay plaintiff $5,000 per month for her Schedule C expenses.

In his July 30, 2008 opinion, Judge Weisenbeck described the devastating impact of the March 31, 2007 pendente lite order on defendant:

Defendant testified that his expenses, including all of plaintiff's Schedule A and B expenses, the $5,000 per month Schedule C award, and payments for educational expenses for the children, totaled about $330,000 (excluding the 2007 tax liability paid in 2008). Thus, defendant's expenditures, which included his own expenses of $30,000 for the year, exceeded his net income by some $110,000. To meet this shortfall, in 2007, defendant borrowed $70,000 from his pension fund, $15,000 from his father and $25,000 from his brother.[]

The judge accepted as truthful defendant's testimony that because of the March 15, 2007 order "[defendant] was reduced to taking home leftovers from business lunches, neglecting dental care for two cracked teeth, and drastically limiting his clothing purchases to one pair of shoes at a discount retailer and one tie and one shirt."

The same March 31, 2007 pendente lite order also directed the parties to obtain a $125,000 home equity loan to pay for the parties' then-existing counsel fees and expert fees. Thus, at the time the spring 2008 trial began, substantially all of plaintiff's attorney's fees and expert fees through March 2007 had already been paid.

At the time of final judgment, the court denied further counsel fees to either party. After listing the Rule 5:3-5(c) criteria, the judge denied plaintiff's counsel fee request. He reasoned:

After careful consideration of the aforementioned factors, the Court finds that plaintiff is not in financial need sufficient to warrant an Order for counsel fees. See Chestone v. Chestone, 322 N.J. Super. 250 (App. Div. 1999). Indeed, plaintiff will have some $295,000.00 after accounting for her apportioned marital debt and personal debt, including family loans. Defendant, on the other hand, is in a clear negative financial position, having been assessed marital debt alone which well exceeds the interim balance of $47,627.21 from the closing on the marital home. Moreover, the Court finds that neither party's position was unreasonable or lacked good faith. Accordingly, the parties' respective request[s] for an award of counsel fees is denied.

Even though, at the time of the parties' divorce, defendant's annual gross income of approximately $300,000 vastly exceeded plaintiff's $48,000, the judge concluded that an award of counsel fees to plaintiff was nonetheless unwarranted. It is evident from the judge's opinion that he was aware plaintiff left the marriage with nearly $300,000 of cash assets and defendant left the marriage $110,000 in debt. Thus, at the end of the marriage, plaintiff had $410,000 more money available to her than defendant had available to him.

In her motion for reconsideration, plaintiff argued that if forced to pay her remaining counsel fees and expert costs, she would be required to dissipate a substantial portion of the settlement she had achieved, and thereby substantially erode the post-judgment standard of living that her negotiated settlement would have created. She also contended in her motion for reconsideration that at the close of testimony, the parties had each reserved the right to submit their attorneys' certification of services once the judge rendered his decision, and the judge had understood and accepted that agreement. She maintained that by merely telephoning the attorneys and informally asking each what the counsel fees were as of that time, the judge had unfairly and improperly prevented her from submitting the agreed-upon certification. She also pointed out that the answer her lawyer provided to the judge's inquiry about counsel fees did not include the counsel fees she still owed to her first attorney. Last, plaintiff argued that because Judge Weisenbeck was not the judge handling the pendente lite phase of the proceedings, he was unaware of defendant's bad faith and the extent to which such bad faith had markedly increased her attorney's fees.

In his October 10, 2008 written opinion denying plaintiff's motion for reconsideration, Judge Weisenbeck began by rejecting plaintiff's contention that she had been unfairly denied the opportunity to present her attorney's certification of services. The judge reasoned:

Plaintiff objects to the court's denial of her fee award because she was denied her opportunity to submit an affidavit of services pursuant to R. 4:42-9(b). That Rule, however, principally provides that the affidavit address the facts (enumerated by RPC 1.5(a)), i.e. the time and labor required. The court, at its request, was in fact provided with a total amount of fees charged by both counsel.

Next, the judge addressed, and rejected, plaintiff's argument that defendant's repeated instances of bad faith during the pendente lite phase of the litigation had unfairly inflated her attorney's fees:

As to the issue of defendant's "repeated violations of pendente orders," the court notes that it has already determined that "the $5,000 per month Schedule C pendente lite order was excessive, especially in light of defendant's other financial responsibilities." Thus, defendant's inability to comply with the terms of the pendente lite order is not evidence of bad faith. Moreover, the court is unaware of what discovery defendant refused to provide. The only discovery issue previously brought to the court's attention is reflected, in minor part, in the June 29, 2007 order, at paragraph 8 (regarding disclosure of account statements). The court notes, however, that plaintiff was awarded $7,000 in counsel fees for that application.

Finally, plaintiff suggests that defendant should pay her fees because he negotiated in bad faith. Yet, this position is belied by the trial testimony, which reflected that after the March 15, 2007 hearing, plaintiff's then[-]counsel believed that the parties were close to a settlement and agreed to allow defendant to continue paying a reduced monthly pendente lite amount "so long as settlement discussions continued in good faith." Here, the "bad faith" identified by plaintiff is defendant's failure to fully and/or timely meet his (excessive) pendente lite obligations and his unwillingness to settle prior to trial.

Having presided over this trial, the court is not convinced that either side's positions concerning the myriad issues presented were in bad faith. Moreover, plaintiff has failed to articulate any additional facts to support her claim of "bad faith," notwithstanding her two certifications filed in support of her motion for reconsideration and in her extensive proposed findings of fact and conclusions of law, submitted pre-trial, which specifically addressed the issue of counsel fees. Thus, plaintiff's motion for reconsideration in this regard is denied.

[Internal citations omitted.]

On appeal, plaintiff advances the same arguments concerning the denial of counsel fees that she presented in her motion for reconsideration. Defendant, for his part, maintains that plaintiff's argument -- that the judge should have permitted her to submit a certification of services for counsel fees -- "elevat[es] form over substance." Defendant contends the counsel fee certification would have added nothing to the required analysis of a counsel fee request. In particular, he maintains that where, as here, the moving party is financially able to pay her own fees, the adverse party is financially unable to contribute to payment of those fees, and has himself not acted in bad faith, the amount of money expended on legal fees, as set forth in a certification of services, becomes irrelevant. He argues that the judge had already made findings of fact that would have resulted in denying plaintiff's request for attorney's fees even if the certification of services had been submitted. Thus, requiring the parties to submit a certification of attorney's fees would have added nothing to the analysis, but would instead have unnecessarily increased the parties' legal fees in light of the time necessary to prepare the required certifications.

II.

N.J.S.A. 2A:34-23 authorizes an award of counsel fees in a matrimonial action and further requires the judge to "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good faith or bad faith of either party." Rule 5:3-5(c) essentially tracks the statutory factors and permits the court, in its discretion, to award counsel fees.

Thus, as we held in Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999), in considering whether to award counsel fees in a matrimonial matter, the judge must determine whether "(1) the party requesting the award [is] in financial need; (2) the party against whom the award is to be assessed [has] the financial ability to pay; and (3) where the first two factors have been established, [whether the party seeking the award acted in] good faith . . . in instituting or defending the action."

Our review of orders granting and denying counsel fees is deferential. Id. at 258-59. Because counsel fees are "discretionary with the trial court," we will not disturb such orders absent an abuse of discretion. Id. at 258. Moreover, because the trial judge had the benefit of observing the parties testifying, we defer to the judge's findings of fact so long as those findings are supported by adequate, substantial and credible evidence. Id. at 259.

With these principles in mind, we turn to an analysis of plaintiff's claims. We begin by addressing plaintiff's complaint that because the parties had specifically reserved the right to submit a certification of services, the judge lacked authority to decide the counsel fee issue without considering her attorney's certification and without analyzing the actual extent of the counsel fees she had incurred. While we have no quarrel with her contention that the parties indeed reserved that right, we find no fault with Judge Weisenbeck's determination that the counsel fee issue presented here could be decided without the necessity of reviewing the attorneys' certifications of services. We also agree with defendant's contention that plaintiff had ample opportunity between June 16, 2008, when the trial ended, and July 30, 2008, when the judge issued his opinion, to submit the certification had she chosen to do so.

In fact, in light of the judge's findings concerning the enormous disparity in the parties' post-judgment assets and the similarity of their income, his decision to dispense with the submission of those certifications reflects good common sense and a practical response to the record before him. Although the judge did not say so explicitly, we discern from his comprehensive written opinion a conclusion that no matter how reasonable plaintiff's legal fees were, no counsel fee award would have been made in light of plaintiff's ability to pay her own fees, defendant's inability to contribute to those fees and defendant's lack of bad faith.

As is apparent, Judge Weisenbeck wisely sought to avoid the very situation we described in Chestone, where we observed that judges should avoid requiring the parties to spend "more money in attorneys' fees to determine what those fees should have been in the first place." Id. at 260. Under the circumstances presented here, we endorse Judge Weisenbeck's decision to dispense with the certifications of services because, as is evident from the judge's analysis of Rule 5:3-5(c) factors, an award of counsel fees to plaintiff was not appropriate regardless of the actual dollar amount she had expended. Thus, we reject as meritless plaintiff's contention that the judge committed reversible error when he denied her counsel fee request without considering her attorney's certification of services.

III.

We turn next to plaintiff's contention that the judge ignored unmistakable evidence of defendant's bad faith and consequently erred when he denied her request for counsel fees. If, during the 2008 trial, plaintiff presented evidence of defendant's bad faith that the judge has ignored, we have no way to evaluate that evidence because plaintiff has not provided transcripts of those six days of trial. Consequently, we are left with nothing other than plaintiff's unsupported claims that defendant ignored discovery orders and was delinquent in his payment of child support.

We recognize that plaintiff has provided copies of two orders, from June 29 and September 20, 2007, in an effort to demonstrate defendant's bad faith. However, we have been provided with no record that would enable us to evaluate these two orders and the events that underlie them. We are not prepared to accept plaintiff's unsupported characterization of the events that led to the issuance of these two orders. Moreover, Judge Weisenbeck, who heard the parties' testimony for a period of six days during the 2008 trial and who made comprehensive and well-supported findings of fact in both of his written opinions, has concluded that the pendente lite order was "excessive" and that defendant cannot therefore be faulted for being in arrears on payment of those orders. Judge Weisenbeck specifically rejected plaintiff's claim that defendant acted in bad faith. The judge made that finding at the time he entered the JOD on July 30, 2008, and again in his October 10, 2008 written opinion on the parties' motions for reconsideration. Judge Weisenbeck commented in the latter opinion, that "plaintiff has failed to articulate any additional facts to support her claim of 'bad faith,' notwithstanding her two certifications filed in support of her motion for reconsideration and in her extensive proposed findings of fact and conclusions of law . . . which specifically addressed the issue of counsel fees." Plaintiff has presented nothing that causes us to question Judge Weisenbeck's findings on this issue. Consequently, we accept his determination that defendant did not act in bad faith. As such, we reject as meritless plaintiff's contention that the judge ignored evidence of defendant's bad faith.

We are satisfied that plaintiff's remaining arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We are satisfied that Judge Weisenbeck's written opinions of July 30, 2008 and October 10, 2008 thoroughly considered the factors relevant to an award of counsel fees and that the judge's reasons for denying plaintiff's request are the product of a thorough analysis of the governing legal principles.

Affirmed.

 

The marital debt included credit card balances, pool expenses, past due tuition, fees for preparation of the parties' income tax returns, summer camp payments, synagogue membership, life insurance premiums, mortgage installments, a home equity loan, homeowner's association assessments, snow removal, a maintenance contract on home computers, home repairs and cleaning expenses, and reimbursement for past health insurance premiums.

The Case Information Statement (CIS) required by Rule 5:5-2 lists shelter expenses as Schedule A, transportation expenses as Schedule B, and personal expenses as Schedule C. Pressler, Current N.J. Court Rules, Appendix V, "Family Part Case Information Statement," (2009).

Defendant comments in his brief that the judge "misstated somewhat" the extent of the loans taken by defendant, and describes them in his brief as $90,000 in loans from his family, a $50,000 pension loan, and a $20,000 hardship withdrawal from his retirement fund, for a total of $160,000; however, because defendant has not filed a cross-appeal, we do not consider this relatively minor discrepancy to be material.

Plaintiff has not disputed the judge's findings on this issue.

Rule 5:3-5(c) provides that the court may, in its discretion, make an award of attorney's fees to the parties in matrimonial actions upon consideration of the financial circumstances of the parties, their ability to pay their own fees or contribute to the fees of the other party, the good faith of each, the extent of fees incurred and any fees previously awarded or paid, the results obtained, and the degree to which fees were incurred to enforce existing orders or to compel discovery.

The judge observed that if defendant's payment of alimony and child support were considered, the parties' resulting incomes were roughly equal. In fact, Judge Weisenbeck commented that during the next five years, before defendant's child support obligations have come to an end, defendant will not enjoy the same lifestyle as plaintiff.

(continued)

(continued)

2

A-1262-08T3

June 11, 2009

 


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