RAJIV UPPAL v. NEELAM UPPAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RAJIV UPPAL,

Plaintiff-Respondent,

v.

NEELAM UPPAL,

Defendant-Appellant.

______________________________________

November 20, 2014

Submitted October 16, 2014 Decided

Before Judges Fuentes, Ashrafi, and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1660-95.

Neelam Uppal, appellant pro se.

Paras, Apy & Reiss, P.C., attorneys for respondent (Peter C. Paras, of counsel and on the brief).

PER CURIAM

Defendant ex-wife Neelam Uppal appeals from the provision of a post-judgment order that awarded attorney's fees to plaintiff ex-husband Rajiv Uppal. Wife had sought to terminate her child support obligation, and the Family Part initially granted her motion on the ground that the parties' two children were emancipated. But the court later found that wife materially misrepresented facts about the circumstances of the two children. Upon correction of the initial order, the Family Part awarded $2,220 in attorney's fees to husband. We now affirm the court's decision.

The parties, who are both doctors, were married in 1983. Their sons were born in 1987 and 1992. Husband filed for divorce in 1995. A contentious and lengthy divorce trial was conducted in 1997-98 and resulted in a final judgment of divorce entered in 1999. On July 14, 1997, in the middle of the trial, the court transferred sole physical custody of the two boys to husband. The final judgment of divorce, which has not been provided to us on this appeal, continued sole custody with husband, and wife was ordered to pay child support. The parties' relationship after the divorce was allegedly tempestuous, with numerous unsuccessful motions filed by wife.

In January 2013, wife filed a motion to emancipate the two boys as of the dates of their eighteenth birthdays and to terminate retroactively her child support obligation of $185 per week. The motion was returnable on February 22, 2013. According to husband, he was not served with the motion until March 1. On March 15, 2013, the Family Part entered an order marked unopposed by which it emancipated the two boys as of their eighteenth birthdays in 2005 and 2010 and vacated any bench warrants for child support arrears that were issued against wife. The court ordered that emancipation be "without prejudice" to husband filing "documentation that the parties' children should not be emancipated."

Husband retained counsel and filed a motion to vacate disputed parts of the March 15, 2013 order. In his supporting certification, husband declared that the older boy had attended college full-time until his graduation in June 2008 and should not be deemed emancipated until that date, and that the younger boy was still attending college as an undergraduate. Among other relief, he requested reimbursement of his attorney's fees because wife had falsely claimed the boys were financially independent but knew they were not, and because of her history of allegedly frivolous post-divorce litigation.

On June 11, 2013, the Family Part entered a comprehensive order to address husband's motion and wife's response. The court did not accept husband's claim that he had not been properly served with wife's earlier motion, instead indicating that husband had not retrieved the certified mailing of wife's motion in January 2013. Nevertheless, the court granted husband's motion to vacate parts of the March 15 order on the ground that the court had relied on incorrect information. The court changed the emancipation date for the older son to June 2008, and vacated its prior finding of emancipation of the younger son. It directed that wife was to continue paying child support for the younger son in an amount to be calculated in accordance with the factors listed in N.J.S.A. 2A:34-23(a). The court further ordered that the Probation Division was to prepare an accounting and fix the amount of wife's child support arrears. Finally, the court ordered wife to pay attorney's fees to husband because his motion to correct the March 15, 2013 order "was necessary given [wife's] prior request to emancipate the parties' sons earlier than they should have been."

Counsel for husband submitted a certification of attorney services requesting reimbursement of $3,960 in fees and costs. On June 17, 2013, the court granted husband $2,220 to be paid by wife within sixty days. The court found that wife "had made material misrepresentations in her prior motions regarding the emancipation of the parties' children, and therefore she should be responsible for [husband's] counsel fees."

On appeal, wife argues that the court did not give adequate reasons for awarding attorney's fees, failed to consider all relevant factors as required by Rule 5:3-5(c), and in particular failed to determine whether wife had the financial ability to pay the monetary sanction.

We review an order granting attorney's fees only to determine if the trial court abused its discretion. J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012); Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004). "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). In addition, we do not substitute our judgment regarding the amount of attorney's fees for that of the trial court.

Here, although we do not have a full record of the initial motion, it was wife's responsibility as appellant to provide the "parts of the record . . . as are essential to the proper consideration of the issues . . . ." See R. 2:6-1(a)(1)(I). The record we have been provided indicates that wife falsely alleged her sons were employed and financially independent as of their eighteenth birthdays although she knew they attended or were attending college and were still in need of financial support from their parents. In granting attorney's fees to husband, the Family Part did not use the precise words of Rule 5:3-5(c)(3) "reasonableness and good faith of the positions advanced by the parties" but it found that wife "had made material misrepresentations" in her motion. Those words equate to a finding of bad faith on wife's part, hence justifying the reimbursement of some of husband's attorney's fees. See, e.g., Kothari v. Kothari, 255 N.J. Super. 500, 513 (App. Div. 1992).

In N.J.S.A. 2A:34-23, the Legislature directed that courts "shall consider . . . the good or bad faith of either party" when ruling on an application for attorney's fees. Here, the Family Part based its modest attorney's fee award on wife's bad faith in seeking the premature termination of her child support obligation. The court did not abuse its discretion in making that award.

Affirmed.