SUSAN D. BACKMAN v. ALAN C. BACKMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5824-09T1

SUSAN D. BACKMAN, n/k/a

SUSAN D. SEAMAN,

Plaintiff-Respondent,

v.

ALAN C. BACKMAN,

Defendant-Appellant.

_________________________________

October 5, 2011

Submitted September 12, 2011 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-2023-98C.

Ira M. Senoff, L.L.C., attorneys for appellant (Mr. Senoff, of counsel and on the brief; Jeanette Russell, on the brief).

Susan Backman, n/k/a Susan Seaman, respondent pro se.

PER CURIAM

In this post-divorce judgment matrimonial case, defendant-father appeals from a June 21, 2010 order reducing his parenting time, increasing his child support obligations, and awarding counsel fees in the amount of $32,077.50 to plaintiff-mother, now pro se. We affirm.

The parties were married in 1993, had one daughter together, and divorced in 1998.1 After the divorce, the court awarded joint legal custody to the parties and residential custody to the mother. The father agreed to pay $1,000 in child support per month.

Immediately following the divorce, the father contended that he was an unemployed financial analyst. Although he was scheduled in 1998 to earn between $600,000 and $750,000 in a severance payment, he was eventually laid off. He continued to find employment in the financial industry for several years, and in 2004, the court reduced his child support obligation to $600 per month.

The father has remarried and currently lives in New York City. When the parties daughter was a teenager, she visited her father on the weekends in New York City. During this time, his relationship with his daughter became strained. He was unmindful to changes in her personal, academic, and emotional growth as she entered high school, and he was unwilling to discuss alternative arrangements. On six occasions, he brought police to pick her up for visitation. As a result, his daughter resisted spending time with her father and eventually refused to visit him. This led the father to file a motion in aid of litigant s rights.

In the fall of 2007, the father filed a motion to modify his child support payments and to enforce his visitation rights. The mother filed a cross-motion to suspend his parenting time. A Family Part judge entered an interim order dated December 3, 2007, requiring the parties to attend a visitation refusal evaluation by Dr. Mark White, suspending the father's visitation rights until that occurred, and directing the father to pay for the services of Dr. White.2 The parenting time and support obligation issues raised in the cross-motions, therefore, remained outstanding.

Dr. White recommended that a parenting coordinator be selected; the daughter resume visitation with the father after a second therapy session; the father and daughter schedule lost parenting time; and that they immediately resume telephone and e-mail contact.

On September 12, 2008, the court entered an order establishing limited parenting time between the father and daughter from September 2008 to November 2008. The court also appointed a therapist for the daughter, designated a parenting coordinator, and scheduled a plenary hearing.

Between March 2009 and May 2010, the judge conducted several hearings and addressed the father s child support obligations and parenting time with his daughter. The judge listened to the extensive testimony of the parties and interviewed the daughter twice.3

The judge found the father not credible concerning his flexibility in scheduling parenting time and his underemployment. The judge stated that "[the daughter] grasped the situation between . . . [her], her mother and her father. And she understands her father's role. And she has observed on her own that he is essentially trying to live through her." The judge stated that he did not "find in this case that the mother was obstructing, but in fact the things that she said with regard to what her child needed or wanted, [were] in fact a reflection of exactly what the child did need or want at that particular time."

On June 21, 2010, the judge rendered a comprehensive oral opinion in which he reduced visitation between the father and daughter to "at least one day per month," imputed a yearly income of $64,720 to the father because he was "woefully underemployed," increased the father's child support obligation to $185 per week, retroactive to November 3, 2007, and imposed attorney fees in favor of the mother. This appeal followed.

On appeal, the father argues that the judge erred by (1) making findings inconsistent with the testimony; (2) awarding counsel fees; (3) denying his request that the wife contribute to the costs of the court-appointed expert; and (4) increasing his child support obligations, retroactive to November 3, 2007.

We will uphold the factual findings supporting the trial court's decision if they are supported by "adequate, substantial and credible evidence." In re J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations omitted). "Additionally, as a general rule, we must grant deference to the trial court's credibility determinations." Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007); accord Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). However, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." In re J.T., supra, 269 N.J. Super. at 188-89 (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). We must ask ourselves whether the trial court's findings "'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting Snyder, supra, 233 N.J. Super. at 69); accord Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd, 78 N.J. 320 (1978). In other words, were the judge's findings of fact "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[?]" Fagliarone v. Twp. of N. Bergan, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963); accord Weiss v. I. Zapinsky Inc., 65 N.J. Super. 351, 357 (App. Div. 1961).

The judge's findings concerning parenting time and support obligations are supported by sufficient, credible evidence in the record. He listened to testimony from the parties, interviewed the teenage child twice, and made credibility findings. The judge believed the mother and disbelieved the father. The judge found the father untruthful concerning his ability to implement a reasonable visitation schedule, and concluded that he was deliberately underemployed. Here, the judge's findings were not "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone, supra, 78 N.J. Super. at 155.

We reject the father's argument that the judge erred in awarding counsel fees. N.J.S.A. 2A:34-23 authorizes counsel fees to be awarded in matrimonial actions. An award for counsel fees and costs is within the judge's discretion. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004); see also R. 4:42-9(a)(1) ("In a family action, a fee allowance both pendente lite and on final determination may be made pursuant to R. 5:3-5(c).") (emphasis omitted). Rule 5:3-5(c) lists the relevant factors in determining a counsel fee award. Rule 5:3-5(c) states in relevant part:

(c) Award of Attorney Fees. Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for . . . support, alimony, custody, [and] parenting time. . . . In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (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 both during and prior to trial; (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.

The judge analyzed the factors listed in the rule and his findings were supported by substantial, credible evidence. The judge found that the father was underemployed, had lied to the court, acted in bad faith, and that the mother was successful "in all aspect[s] of the litigation."

We find no merit to the father's contention that the judge erred by ordering him to pay the fees for Dr. White.4 Pursuant to Rule 5:3-3(i), the court has discretion to order who pays for the costs of an expert. "The good faith of a party and the extent of fees incurred by both parties are factors to be considered in determining the allocation of fees between parties in matrimonial actions." Platt v. Platt, 384 N.J. Super. 418, 429 (App. Div. 2006) (citing Rule 5:3-5(c)). The applicable standard of review is whether the judge committed an abuse of discretion. Ibid.; Martindell v. Martindell, 21 N.J. 341, 356 (1956). There was no abuse of discretion here.

Finally, we reject the father's contention that the judge erred by compelling him to make support payments retroactively. We discern from the judge s ruling that after he found the father was underemployed and increased his support obligations, he ordered the payments be made retroactively to November 3, 2007, the date when the father had filed his motion in aid of litigant s rights.

A

1 Their daughter was born in September 1993.

2 We denied the father's motion for leave to file an appeal of the December 3, 2007 order, and denied his motion for reconsideration.

3 The interviews occurred on August 5, 2008 and in May 2009.

4 We note that the father has not appealed from the December 3, 2007 order requiring him to pay for Dr. White's evaluation. Rather, he appealed from the June 21, 2010 order reducing his parenting time, increasing his child support obligations, and awarding counsel fees.