STEVEN BRENMAN v. LAURA BRENMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2891-10T2

STEVEN BRENMAN,

Plaintiff-Appellant,

v.

LAURA BRENMAN,

Defendant-Respondent.

________________________________

March 29, 2012

Submitted March 19, 2012 - Decided

Before Judges Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1824-04.

Goldstein and Bachman, P.A., attorneys for appellant (David R. Cardamone, on the brief).

Law Office of Timothy F. McGoughran, L.L.C.,

attorneys for respondent (Jay M. McManigal, on the brief).

PER CURIAM

In this post-divorce matrimonial case, plaintiff appeals from a January 11, 2011 order awarding counsel fees in the amount of $10,712.88 to defendant, his ex-wife. On remand, the judge issued an August 9, 2011 amended order reducing the fees to $4,462.28. Plaintiff maintains that the judge abused his discretion and awarded excessive fees. We affirm, but modify the fee award to $1,667.64.

The parties were married in 1990 and divorced in 2007. In November 2008, plaintiff sought a reduction in his alimony and child support obligations. The judge denied the application, however, because plaintiff failed to demonstrate changed circumstances. In November 2009, plaintiff again sought modification of his alimony obligation based on two arguments: that his income was reduced and that defendant was cohabitating. Defendant cross-moved for attorney fees and contended that neither of plaintiff's arguments had merit. Thereafter, plaintiff withdrew his argument that his alimony should be modified because his income was not reduced, but he continued to contend that the alimony should be reduced because defendant cohabitated.

On December 1 and 8, 2010, the judge conducted a plenary hearing on the issue of whether an alimony reduction was warranted because defendant cohabitated. On the second hearing date, he entered an order denying plaintiff's motion for a reduction to his alimony obligation, and granting defendant's application for attorney fees pending certification from defense counsel. The judge also issued an oral opinion setting forth his reasons on the record.

On January 11, 2011, the judge then entered an order awarding attorney fees in the amount of $10,712.88. Plaintiff appealed. Because plaintiff did not provide transcripts of the plenary hearing or the judge's oral decision and it therefore appeared to us that the judge had not made the necessary findings, we ordered a limited remand directing the judge to provide a written statement of his factual findings and legal conclusions.

On August 9, 2011, the judge issued a three-page written statement of reasons. At that time, the judge also recognized that he inadvertently miscalculated the fee award to include fees incurred by defendant to refute plaintiff's claim of cohabitation. The judge observed that he had based the amount of the original fee award on his review of defense counsel's certification, which showed $10,712.88 in fees and costs and "covered all of counsel's work on the motions being decided." (Emphasis in original). Upon remand, the judge explained:

The amount set forth in that Order was unfortunately in error since it did not reflect the Court's intention not to award counsel fees expended in the defense of the cohabitation portion of the motions, including those expenses associated with the plenary hearing concerning the cohabitation motion. If the fees and costs that were associated with only the "change in circumstances" application are considered, they should amount to $4,462.28. This covers the amounts billed by the defendant's counsel from November 30, 2009, when the original "change in circumstances" motion was filed, up to June 24, 2010, when the focus of the motions was changed to that of alleged cohabitation.

Thus, the judge entered an amended order "to reflect that the proper attorney fees award shall be $4,462.28." This appeal followed.

On appeal, plaintiff argues that the judge erred in finding that plaintiff had made his claim of changed financial circumstances in bad faith. Specifically, plaintiff contends that the judge misapplied the applicable factors for consideration of whether an attorney fee award is warranted. In the alternative, plaintiff contends that the award should be further reduced in light of the judge's intention, as elucidated in his statement of reasons, that the award should only apply to fees and costs incurred in the defense of the claim of changed financial circumstances.

An award of counsel fees rests within the sound discretion of the trial court. Van Horn v. Van Horn, 415 N.J. Super. 398, 408 (App. Div. 2010) (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001)); R. 4:42-9(a)(1). We disturb fee determinations "'only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Collier, supra, 167 N.J. at 444 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (internal quotation marks omitted) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Rule 5:3-5(c) permits a court to award attorney fees in post-divorce cases. In determining whether and to what extend a fee award is appropriate, the court must consider:

(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.
 

[Barr, supra, 418 N.J. Super. at 46-47 (quoting R. 5:3-5(c)).]

Further, as our Supreme Court has stated:

In a nutshell, in awarding counsel fees, 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) (emphasis omitted).]

Here, on remand, the judge, in his August 9, 2011 statement of reasons, summarized the findings that supported his December 8, 2010 oral decision.1 Because sufficient findings, based on substantial, credible evidence in the record, support the award of attorney fees, the judge did not abuse his discretion.

The judge considered the Rule 5:3-5(c) factors. He found that plaintiff had "acted in bad faith" by claiming that he had diminished income justifying a reduction in alimony. The judge stated that plaintiff "had made several such claims in the past and each time had failed to offer sufficient proof to back up those claims."

The judge found that the parties' financial circumstances were "unequal," that plaintiff's annual income was $500,000 and defendant's was $120,000. The judge further stated that although "defendant may have been able to pay her own counsel fees, the plaintiff had the ability to pay the counsel fees for both of the parties." The judge considered further prior decisions as to the parties' good and bad faith, and noted that he had previously awarded attorney fees to defendant. The judge found that defendant had "completely succeeded in protecting her right to receive alimony."

The judge then determined that defendant's attorney fees were reasonable and reflected "a rate customarily charged in this vicinage." He also stated that "defendant's attorney had substantial experience and was highly regarded," and that "the time allotted appeared to be what would be necessary for an issue of the type presented."

We conclude, however, that the amount of fees must be reduced further regarding plaintiff's claim of changed financial circumstances. The judge ordered the award of fees for work performed from November 30, 2009 to June 24, 2010, the period from the filing of plaintiff's motion for reduction of alimony to the withdrawal of plaintiff's changed financial circumstances argument, and stated that he was considering "the fees and costs that were associated with only the 'change in [financial] circumstances' application." Given the time period and purpose for which the judge intended the fee award, the $4,462.28 award must be reduced by $1,655.75, which reflects an amount representing legal work performed during the relevant period but not associated with the changed financial circumstances claim. Additionally, it is undisputed that defendant's attorney spent 10.36 hours preparing the cross-motion, half of which, an amount of $1,138.89, should be attributed to the cohabitation argument. As a result, we further reduce the award by an additional $1,138.89. Accordingly, we modify the fee award to $1,667.64. The judge shall issue an amended order consistent with our opinion.2

A

1 On remand, the judge reviewed recordings of the prior proceedings and made direct references in his statement of reasons to portions of his December 8, 2010 oral decision. Plaintiff has not provided transcripts of the plenary hearing or the oral decision. Our court rules require that "if a verbatim record was made of the proceedings before the court . . . from which the appeal is taken, the appellant shall, no later than the time of the filing and service of the notice of appeal, serve a request for preparation of an original and copy of the transcript . . . ." R. 2:5-3(a).

2 If either party seeks appellate fees, then that issue should be presented to the judge pursuant to Rule 2:11-4, concurrent with the issuance of an amended order.