PHILIP A. BOVE v. DIANE M. BOVE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5545-07T25545-07T2

PHILIP A. BOVE,

Plaintiff-Respondent,

v.

DIANE M. BOVE,

Defendant-Appellant.

______________________________________________

 

Submitted March 4, 2009 - Decided

Before Judges Stern and Lyons.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1136-98.

Celli, Schlossberg & Friedland, L.L.C., attorneys for appellant (Holly M. Friedland, on the brief).

Lesnevich & Marzano-Lesnevich, attorneys for respondent (Scott Adam Laterra, on the brief).

PER CURIAM

This case arises from a dispute between former spouses, defendant, Diane M. Bove, and plaintiff, Philip A. Bove. Defendant appeals an order requiring her to pay counsel fees for a motion plaintiff filed to compel defendant to allow him to take their daughter on vacation; to confirm that plaintiff would not be liable for any tuition fees for their daughter prior to college; and to set forth what constituted reimbursable "college expenses" as defined in their supplemental judgment of divorce. Defendant also appeals an order denying her motion for reconsideration and compelling her to pay additional counsel fees. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

The parties divorced on June 28, 2001. There were three children born of the marriage, two adult sons, both twenty-one years old, and a daughter, who is sixteen-years old. The parties' supplemental judgment of divorce provided for joint legal custody of the children, with defendant having sole physical custody. Plaintiff was required to create trust funds for the children's college expenses and he agreed to cover eighty percent of the daughter's college tuition.

In a letter dated October 5, 2007, defendant informed plaintiff she was dissatisfied with the school their daughter would be attending the following year. She was attending the local public school, but defendant explained that both she and the daughter felt the public high school "left something to be desired." Defendant informed plaintiff that she was looking into alternative schools, all of which "range[d] in tuition from $11,000-$13,000." She also noted that "there is absolutely no way I can pay towards any of these schools. [. . .] I would, however be able to apply to financial aid, and I understand at least St. Elizabeth does give out financial aid awards." Defendant then expressed that she would be taking their daughter to various open houses and encouraged plaintiff to share his "thoughts on the matter."

Plaintiff responded by letter dated October 12, 2007. Because plaintiff was required to cover eighty percent of his daughter's college tuition, he informed defendant that he would not contribute in any way to tuition prior to college. He also expressed his frustration that defendant would discuss such issues with their daughter without conferring with him first. Under defendant's direction, and despite plaintiff's expressed disapproval, their daughter took the placement exam for St. Elizabeth's High School and defendant paid $500 to reserve a spot for the daughter for the coming school year, though she did not formally enroll. Plaintiff thereafter verbally requested that defendant sign a written statement confirming that she would not seek any contribution for high school tuition from plaintiff. Defendant refused.

In addition to the daughter's scholastic future, there were other matters of contention relating to educational expenses between the parties. Both sons have college trust funds, as required by the judgment of divorce, which were created to cover only "college expenses." At the time the supplemental judgment of divorce was entered, "college expenses" was defined as "tuition, room, board, books, necessary fees and transportation to and from home for vacation." Since the time their sons enrolled in college, defendant had requested reimbursement from the college trust for miscellaneous items such as food, toiletries, over-the-counter medication, and various other items not specified as "college expenses." Defendant contends that plaintiff also used the funds to cover non-college expenses.

Pursuant to the judgment of divorce, plaintiff was permitted to request dates for vacation with the children upon sixty-days notice. The judgment required plaintiff to respond to such requests within fifteen days of their receipt. Pursuant to these terms, plaintiff sent defendant a letter on January 16, 2008, expressing his desire to take their daughter to Cancun, Mexico, for vacation. Plaintiff had scheduled the vacation for April 19, 2008, through April 27, 2008, which coincided with the daughter's school break. Defendant did not respond to this letter.

Plaintiff sent a subsequent letter on February 2, 2008, reiterating his request from January 16, 2008, and also included a consent letter for defendant to sign, permitting their daughter to leave the United States. Defendant responded on February 10, 2008, and advised plaintiff that she had not reached a decision as to whether or not she felt "comfortable" allowing their daughter to leave the country. Plaintiff sent defendant another letter dated February 14, 2008, imploring her to allow their daughter to accompany him on the trip.

Defendant responded by letter, dated February 16, 2008, reiterating her concerns about the daughter leaving the country, especially because defendant herself did not have a passport and therefore would not be able to travel to Mexico to be with her daughter in the event of an emergency. However she stated, "I am willing to proceed ahead with getting her passport . . . . As of today, that is he [sic] best I can tell you."

On February 26, 2008, plaintiff filed a motion seeking an order granting him permission to take his daughter on vacation and compelling defendant to cooperate in securing their daughter's passport. Plaintiff also requested that the court compel defendant to cover any of their daughter's tuition expenses prior to college, should defendant enroll her in a private high school. In addition, plaintiff sought to have the court define "college expenses" so as to prevent defendant from seeking reimbursement for items outside the scope of the trust. He also requested counsel fees. The court bifurcated the motion to ensure that the vacation issue would be heard before it became moot. Defendant filed a certification on March 20, 2008, addressing only the vacation issue. Plaintiff filed a reply on March 25, 2008.

The court held oral argument on March 28, 2008, and entered an order allowing plaintiff to take his daughter on the scheduled vacation. On that same day, defendant submitted her certification in opposition to the remaining requests contained in plaintiff's February 26, 2008, motion. In that certification, defendant argued that she never requested financial contributions from plaintiff for their daughter's tuition. She also noted that plaintiff often withdrew funds from the children's trust accounts for non-college expenses and had never objected to her requests for reimbursement before.

Plaintiff filed his reply on April 2, 2008, in which he stated that if defendant was sincere in not seeking contributions from him for high school tuition, she "should not have any problem directing her counsel to sign the [consent order] confirming that I will not be responsible for these costs, which is being submitted to her counsel simultaneous to the within motion." He also attached a copy of a deed evidencing defendant's recent sale of investment property for $202,500. Plaintiff asserted that those funds should be used to reimburse him for his counsel fees. His attorney also included a certification of services in compliance with Rule 4:42-9(b).

After the court entered its order on March 28, 2008, defendant sent plaintiff a "travel permission document," which was necessary for the daughter to present upon leaving the United States for the vacation in Cancun, Mexico. However, defendant failed to have the document notarized, rendering it incomplete. Plaintiff informed defendant of the defect, and also expressed concern over their daughter having her passport in time for the trip.

On April 3, 2008, defendant's attorney received a draft of the consent order. On April 4, 2008, defendant contacted plaintiff with "some minor language changes" she wanted to address before signing the order. On April 5, 2008, while waiting for plaintiff's response to those proposed changes, defendant mailed plaintiff the notarized permission letter. She also informed him that their daughter had her passport. On April 7, 2008, however, plaintiff notified defendant by letter that the consent order was withdrawn, due to plaintiff's "frustration that [he] has still not been given the notarized permission letter or passport by [defendant]." Plaintiff also stated that his daughter was now refusing to go on the trip.

On April 10, 2008, the trial court informed the parties that plaintiff's motion would be decided on the papers. Both parties objected. On that same day, defendant filed a brief in which she informed the court that plaintiff had withdrawn the consent order, claiming he had not received the notarized permission letter and further notified the court that she had sent plaintiff the permission letter on April 5, 2008. However, defendant did not submit any financial information to supplement or refute plaintiff's claim that she had received $202,500 from the sale of an investment property.

On April 11, 2008, the court entered an order compelling defendant to "cooperate in any and all way[s] necessary, to secure the daughter's passport in time" for her vacation to Mexico. With regard to defendant's use of the trust fund, the court noted that the use of the fund had already been defined by the supplemental judgment of divorce and "defendant should not submit bills which are not part of that definition." The court further ordered that defendant would be exclusively responsible for "any and all costs in connection with . . . [the daughter's] enrollment in and attendance at any private school" and awarded plaintiff $5,000 in counsel fees pursuant to Rule 5:5-5(c)(3), (7) and (9). The court found that defendant "had not [sic] right to make unilateral decisions and then refuse to sign a consent order. She shouldn't submit requests to pay for things not covered. [Plaintiff] has prevailed."

On April 19, 2008, plaintiff left for the vacation to Cancun, Mexico without his daughter, who refused to go. She remained in New Jersey with defendant.

Defendant filed a motion for reconsideration on April 29, 2008, and requested oral argument. In that motion, defendant again explained that she had, in fact, already given plaintiff the notarized permission form required for the daughter's trip to Mexico prior to him withdrawing the consent order. Defendant also noted that "it appears that the court was not aware of the fact that the [consent] Order was withdrawn and drew the exact conclusion suggested by Plaintiff, that the only reason it was still ruling on these issues was because Defendant refused to sign it."

Defendant also reiterated that plaintiff had never objected to her seeking reimbursement from the college trust fund prior to filing his motion and that both parties had made withdrawals from the fund for non-college expenses. Regarding the daughter's enrollment at St. Elizabeth High School, defendant explained that she only reserved their daughter a "seat" so that the opportunity for enrollment would not close. Defendant also argued that the court erred in awarding counsel fees because it failed to make adequate findings regarding bad faith on her part and the parties' mutual ability to pay.

Plaintiff filed a cross-motion, seeking reimbursement for the expenses he incurred in planning the daughter's failed trip to Mexico. He also sought counsel fees associated with his cross-motion. In his certification, plaintiff acknowledged withdrawing the consent order, but asserted that he planned on informing the court of this development at oral argument, which the court never held.

Despite defendant's request for oral argument, the court again opted to decide the motion on the papers. In ruling on defendant's use of the college trust fund, the trial court stated "[d]efendant had no right to anticipate reimbursement even though there may have been the pattern of some reimbursement prior to that date." The court also rejected defendant's argument that it made a mistake of fact in finding that the daughter had been enrolled in a private high school and that defendant refused to sign the consent order. The court held:

there is no evidence of enrollment. However, [the daughter] was clearly accepted and a deposit made. The fact that plaintiff withdrew the consent order mere days before oral argument is really irrelevant. The defendant continued to take actions toward her enrollment in St. Elizabeth's and obviously included the daughter without plaintiff's consent. Decisions of this nature should be made collectively by the parents, if at all possible. If not, an application to the Court can be made. Involving the daughter in the defendant's desire for months knowing that plaintiff had not agreed is not good faith.

The trial court also found that its award of counsel fees was proper. It stated the "Court previously relied upon Subsection (3) of R. 5:3-5(c) and again repeats that reliance. Defendant's position as to St. Elizabeth's was not reasonable and her pursuit of that school encouraging the daughter to do so without resolving the issue of plaintiff's contrary views cannot be viewed in good faith." Moreover, the court further found its award was supported because plaintiff had prevailed on his motion, R. 5:3-5(c)(7), and defendant had "resisted the trip to Mexico without a sufficient basis." R. 5:3-5(c)(9).

In addressing defendant's argument that its award of counsel fees was not appropriate because the court did not consider the parties' ability to pay, the trial court found this argument lacked merit because "defendant herself did not provide any financial information. This factor can only be evaluated when the parties present that information." Moreover, the court noted that "defendant recently sold property and realized a profit and should, therefore, be able to pay these fees."

The trial court then awarded plaintiff an additional $1,000 in counsel fees "because this application for reconsideration lacked merit." The court refused to order defendant to reimburse plaintiff for the daughter's share of the trip to Mexico.

Defendant subsequently filed this appeal and presents the following arguments for our consideration:

POINT ONE

The court erred in awarding counsel fees absent a showing of plaintiff's need for contribution and defendant's ability to pay.

POINT TWO

The court erred in awarding counsel fees in connection with the motion for reconsideration as there was a legitimate basis to believe that errors of fact had been made and the legal argument presented was not without merit.

POINT THREE

The Court erred in deciding defendant's cross-motion and motion for reconsideration on the papers.

We begin by addressing defendant's contention that the court erred in awarding counsel fees on plaintiff's February 26, 2008, motion without determining defendant's ability to pay. In awarding attorney's fees, N.J.S.A. 2A:34-23 requires a court "to consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999). Rule 5:3-5(1)(c) requires that the court must consider whether the party requesting the fees "is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees." Mani v. Mani, 183 N.J. 70, 94-95 (2005). After considering these factors, the trial court may, in its discretion, award counsel fees to any party. R. 5:3-5(1)(c); Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).

As Rule 5:3-5 makes clear, the trial judge must consider the parties' financial circumstances in making an award of counsel fees. The responsibility to provide this information, however, rests solely on the parties. See Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (holding that the parties must provide the court with financial information when counsel fees are to be awarded based upon the parties economic positions). This is illustrated by Rule 5:5-2, which states the duty of the parties to provide a case information statement is so crucial in all contested family actions regarding custody, support, alimony or equitable distribution, that the court may dismiss a party's pleadings when it is not provided.

Here, plaintiff, in his February 26, 2008, motion, requested attorneys fees. In his April 2, 2008, certification, he informed the court that defendant had acquired $202,500 from the sale of investment property. Plaintiff served defendant with this certification prior to the court deciding the motion. Defendant was therefore aware that the trial court had this information and made no effort to file a reply, giving her own version of her ability to pay. The trial court, upon being presented with plaintiff's evidence of the sale, ordered defendant to pay plaintiff $5,000 in counsel fees.

Upon defendant's motion for reconsideration, the trial court addressed defendant's failure to provide any information concerning her ability to pay, despite being on notice that the court was aware of her income from the sale of property. The court noted, "defendant herself did not provide any financial information. [Her ability to pay] can only be evaluated when the parties present that information."

Rule 5:3-5(c) requires the trial court to consider the parties' respective financial information when making an award of counsel fees. The Rule does not require the court to perform its own discovery to determine a party's ability to pay. Here, the court, in its discretion, used the information it had before it to make its determination. Defendant had ample opportunity to provide the court with her own financial information and she failed to do so. The trial court cannot be faulted for failing to consider information that a party never provided. Therefore, we find the trial court did not abuse its discretion when it ordered defendant to pay plaintiff $5,000 in counsel fees, given the financial information before it.

Defendant also argues that the trial court erred in ordering plaintiff to pay an additional $1,000 in counsel fees on her April 29, 2008, motion for reconsideration. The trial court supported its award by finding that defendant's application for reconsideration "lacked merit." Defendant argues that her application was proper, was not made in bad faith, and therefore did not warrant additional counsel fees.

"Reconsideration is a matter to be exercised in the trial court's sound discretion." Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). Such a motion is only appropriate when the court's decision is based on plainly incorrect reasoning or when the court failed to consider evidence or there is good reason for it to reconsider new information. Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1986). In her motion for reconsideration, defendant argued that the trial court had been unaware that plaintiff had withdrawn his consent order when it granted his motion on April 11, 2008. Defendant also asserted that the trial court mistakenly believed she had enrolled the daughter in private school and had failed to understand the way the parties had used the children's college trust fund in the past.

The court, however, in denying defendant's motion for reconsideration, stated, "the Court did not [overlook certain facts]" in reaching its decision. Regarding defendant's concern that the court was unaware that plaintiff had withdrawn the consent order, the court stated, "[t]he fact that the plaintiff withdrew the consent order mere days before oral argument is really irrelevant." The court explained that, while defendant had not formally enrolled the daughter at St. Elizabeth's, defendant had already taken significant steps towards enrollment without consulting plaintiff. Because such behavior was not "in the child's best interests," the fact that defendant did not have an opportunity to sign the consent order was not material to its decision to award counsel fees. The trial court likewise made it clear that it was aware of the parties' previous use of the college trust fund prior to entering its order.

Based on this, the court found that defendant's motion for reconsideration must fail and further held that she had not acted in good faith. Specifically, the court found "[i]nvolving the daughter in the defendant's desire for months knowing the plaintiff had not agreed is not good faith." Regarding defendant's behavior in general, the court stated:

[i]t is defendant who raised the issue of private school and pursued it without resolving plaintiff's concerns. It is defendant who resisted the trip to Mexico without a sufficient basis. It is her conduct which brought plaintiff to the point of having to file a motion and seeking the Court's intervention.

Because the trial court found defendant's actions lacked good faith, and because her motion "lacked merit," the court "awarded an additional sum of $1,000.00 for counsel fees." The court also noted that such an award was appropriate due to defendant's recent sale of her investment property.

Rule 5:3-5(c) states that a court should consider "the reasonableness and good faith of the positions advanced by the parties" when considering a request for counsel fees. In the first instance, if both parties litigate in good faith, fees are not awarded unless the parties economic positions are unequal. Kelly, supra, 262 N.J. Super. at 307. However, where one party acts in bad faith, the relative economic position of the parties has little relevance because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).

Rule 5:3-5 does not require a finding of "bad faith," but instead calls upon the court to consider the "good faith" of the parties' positions. Good faith is defined a "a state of mind consisting in . . . honesty in belief and purpose. . . ." Black's Law Dictionary 701 (7th ed. 1999). Bad faith is the opposite, defined as "[d]ishonesty of belief or purpose." Id. at 134; Kelly, supra, 262 N.J. Super. at 308.

A court clearly possesses the discretion to award attorney's fees, and it is undisputed that good faith and the parties' financial circumstances should be considered in making such an award. Here, the trial court found defendant had not acted with "honesty in belief and purpose" in attempting to enroll the daughter in private school and in complicating plaintiff's attempt to take her on vacation.

The parties have clearly had a contentious relationship since their divorce in 2001 and the trial court found defendant's motives regarding the daughter were not in her "bests interests." It is clear that defendant excluded plaintiff from any discussion about their daughter's educational placement until she had already discussed the issue with the child herself and taken some action in that regard. She also interfered with plaintiff's vacation by failing to notify him in a timely manner as to whether she would permit their daughter to travel.

"Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Here, the trial court's determination that defendant acted without good faith, and had adequate funds to pay $1,000 of plaintiff's counsel fees, is supported by substantial credible evidence, and we refuse to reverse. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, (1974).

Lastly, defendant contends the trial court erred in deciding plaintiff's February 26, 2008, motion and defendant's motion for reconsideration without oral argument. Rule 5:5-4(a) provides that "in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions." Thus, the grant of a request for oral argument of a motion is discretionary; however, there is a strong presumption favoring argument of motions other than calendar matters and routine discovery applications. Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).

 
In this case, while it is clear from the trial court's statement of reasons for denying defendant's motion for reconsideration that it was familiar with the record and it had read the parties' papers, this was a substantive motion for which oral argument should have been granted. However, because the trial court was evidentially aware of the issues and was familiar with the parties' arguments, a remand for oral argument would only increase the expense to the parties and add nothing to the already ample record. Therefore, while we do not agree with the trial court, we see no need to remand the matter at the increased and unnecessary expense to the parties. Accordingly, we affirm the orders under review.

Affirmed.

This excludes summary actions.

Plaintiff requested $9,306.90, the entire cost associated with filing his motion.

(continued)

(continued)

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A-5545-07T2

April 15, 2009