NICOLE N. SHAIN v. DANIEL H. SHAIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NICOLE N. SHAIN, n/k/a

NICOLE N. NEWELL,

Plaintiff-Respondent,

v.

DANIEL H. SHAIN,

Defendant-Appellant.

SubmittedMay 12, 2015 Decided July14, 2015

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FM-17-0219-12.

Daniel H. Shain, appellant pro se.

Virginia Maroulakos Rucinski, attorney for respondent.

PER CURIAM

Defendant appeals from a December 20, 2013 Family Part order denying his request for an award of counsel fees and requiring him to pay a portion of plaintiff's counsel fees following the parties' divorce-related litigation. We affirm.

I.

The parties married in March 2000. They had three children before separating in November 2011, when plaintiff moved out of the marital home in Pennsville and relocated to her native California. She took all three children with her, without defendant's consent.

In April 2012, defendant filed a complaint for custody. Two days later, plaintiff filed a complaint for divorce. The court ordered plaintiff to return the children to New Jersey in July 2012 to spend the summer with defendant. The court also scheduled and held a plenary hearing to determine whether defendant had consented to plaintiff moving the children to California.

Both parties acknowledged that N.J.S.A. 9:2-2 required the consent of both parents for plaintiff to move the children to another state, since the two younger children are New Jersey natives and the youngest had resided in the state for at least five years. After a three-day hearing, the court found that defendant had not consented to plaintiff's relocation with the children. On August 31, 2012, the court entered an order requiring the three children to remain in New Jersey, with the parties sharing joint custody and defendant serving as the parent of primary residence.

A final judgment of divorce was entered on June 3, 2013. The court ordered that the parties' property settlement agreement (PSA), as placed on the record and amplified during hearings on May 31 and June 3, 2013, would become enforceable upon the signing of a supplemental order or an amended final judgment of divorce. The parties agreed that the only issue left unresolved was a request by plaintiff for counsel fees.

Plaintiff filed a motion for counsel fees on July 29, 2013. On September 20, 2013, the trial court entered an order granting in part plaintiff's request that defendant pay all counsel fees and costs incurred as of the date of the order. Specifically, the order required defendant to pay $20,000 in attorneys' fees directly to plaintiff's attorneys, at the rate of $5000 every three months, with the first payment due on January 1, 2014. Defendant did not respond or appear at the motion hearing, and the court entered its order "without prejudice[.]"

Defendant filed a pro se motion for reconsideration of the court's order. The court, satisfied that there had been a miscommunication regarding the date of the hearing, reconsidered the matter on the merits. In a supporting certification, defendant asserted that plaintiff's request for counsel fees was neither reasonable nor "financially realistic[,]" and requested that the court consider the possibility of ordering plaintiff to pay a portion of his fees.

On December 20, 2013, the court entered an order granting, in part, defendant's motion for reconsideration. Specifically, the court modified its previous order by reducing the attorney's fee award to $12,100, payable at the rate of $1100 on January 1, 2014, and $1000 per month thereafter.1 The court denied defendant's requests for counsel fees.

In a written opinion, the court set forth its reasons for the award of counsel fees. The court noted that, based on the evidence presented, plaintiff was "at a clear financial disadvantage" during litigation. Although defendant argued that he had recently earned more money per year than he would in the future due to various federal grants, he provided no proof in support of his argument other than documents corroborating a "gradual increase in his income since 2011[,]" culminating in "year-to-date" income of $158,544.88 through his employment as a college professor. The evidence indicated that plaintiff, in contrast, earned an annual gross income of $22,464, supplemented byalimony inthe amountof $350per week. Defendant assertedthat plaintiff was capable of finding work as a massage therapist that would allow her to earn approximately $80,000 per year. The court rejected this contention as "unlikely and improbable" in light of plaintiff's "deficient resume doing said work."

However, the court acknowledged that, in the September 20 order directing defendant to pay $20,000 of plaintiff's attorney's fees, it had "failed to appreciate the substantial attorney['s] fees" plaintiff incurred as a result of her "unlawful removal of the children." The court specifically noted an August 2012 court finding that plaintiff "did not act in good faith" when she took the children to California. The court thus concluded that plaintiff "should not be reimbursed any legal fees she expended toward[] preparation [for] the August 2012 hearing[,]" and that her reimbursement should come only from fees incurred for the custody hearing and response to defendant's "initial [n]otice of [m]otion filed on April 18, 2012." Based on its review of plaintiff's attorney's invoice, the court concluded this figure to be $15,510.25.

The court then determined that defendant's "pro rata share" of responsibility for the fees was seventy-eight percent, after comparing the parties' respective incomes and accounting for the payment and receipt of alimony. The court also entered an amended judgment of divorce that incorporated the parties' PSA. This appeal followed.

II.

In "claims relating to family type matters[,]" the court may, in its discretion, direct that an award of attorney's fees "be paid by any party to the action[.]" R. 5:3-5(c). When granting such an award, courts should consider the following

(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.

[Ibid.]

As our Supreme Court stated in Mani v. Mani, 183 N.J. 70, 94-95 (2005) (emphasis omitted)

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.

"'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.'" Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). "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.'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

III.

Defendant argues that the December 20, 2013 court order resulted in an unfair arrangement, since it deprived him of sufficient finances to care for the parties' three children. Defendant further argues that he should not have to pay any of plaintiff's counsel fees, asserting that it was plaintiff's fault that the two parties had to pay so much in counsel fees. Defendant argues that instead, plaintiff should have been ordered to pay a portion of his attorney's fees.

We are convinced that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these brief comments.

Defendant's contention that the court failed to properly assess the respective financial circumstances of the parties lacks substantive merit. As of December 20, 2013, defendant's "year-to-date" income was $158,544.88 as a college professor, more than seven times greater than plaintiff's income. Even after payment and receipt of alimony, defendant's income was more than three times greater than plaintiff's income. The record contains no credible evidence to support defendant's claim that the court's order left him with insufficient financial resources to properly care for his three children.

Therecord fullysupports the court's findings that plaintiff was in financial need and that defendant had the capacity to pay for a portion of plaintiff's counsel fees that were unrelated to plaintiff's relocation to California. As the court's findings are supported by the record, we do not perceive the award of counsel fees to plaintiff to be a clear abuse of discretion.

We also reject defendant's argument that plaintiff should reimburse him for counsel fees incurred to return the children to New Jersey. The only issue left open by the PSA was plaintiff's request for counsel fees. As defendant's request for fee-shifting was not left open, the issue was not properly before the court.

1 The order and transcript reflect a total of $12,000, contrary to the court's memorandum of decision. See Taylor v. Int l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (App. Div. 2002) (holding that the court's opinion controls in a conflict with the written order).