VIKRAMSREEHARI MULLACHERY v. PRICILA MULLACHERY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2790-13T1

VIKRAMSREEHARI MULLACHERY,

Plaintiff-Respondent,

v.

PRICILA MULLACHERY,

Defendant-Appellant.

_____________________________________

July 16, 2015

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-0145-13.

Victoria V. Bach, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant appeals the portion of a January 17, 2014 post-judgment matrimonial order denying her application for counsel fees. She argues the trial court used improper standards in determining the appropriateness of awarding attorney's fees, failed to make the necessary findings to deny the request, and failed to acknowledge plaintiff's contractual obligations to pay attorney's fees. We have reviewed these arguments in light of the record and applicable law, and we affirm.

The parties entered into a matrimonial settlement agreement (the Agreement) that was incorporated by reference into the July 24, 2013 judgment of divorce. Defendant filed a post-judgment motion to enforce litigant's rights on November 17, 2013, alleging plaintiff violated the terms of the Agreement because he was in arrears of child support and alimony and owed $9,000 in attorney fees. Defendant requested oral argument on the issues of child support arrears and attorney's fees, and requested payment of the attorney's fees associated with the present litigation.

On December 31, 2013, plaintiff filed a cross-motion asserting defendant violated their parenting plan and requesting attorney's fees. On January 7, 2014, defendant filed a reply in further support of her post-judgment motion.

On January 17, 2014, following oral argument, the Family Part judge issued an order: (1) denying defendant's motion to hold plaintiff in violation of litigant's rights for his failure to pay child support and alimony pursuant to the Agreement; (2) acknowledging that plaintiff violated the terms of the Agreement by failing to pay $9,000 in attorney's fees and granting a judgment of $9,000 plus interest against him; (3) denying defendant's request for attorney's fees on the ground plaintiff is in arrears because of an improper credit applied by the Probation Department; (4) denying plaintiff's cross-motion based on the ground that defendant did not act willfully or unreasonably; and (5) denying plaintiff's attorney's fees based on the grounds that his non-compliance with the Agreement necessitated the filing of defendant's motion.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court[,]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); see alsoCesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104; see alsoRova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Furthermore, the assessment of counsel fees lies within the sound discretion of the trial court, "and will not be reversed except upon a showing of an abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). An award of counsel fees is permitted "to any party accorded relief following the filing of a motion in aid of litigant's rights, R. 1:10-3, or to any party in a divorce action, R. 5:3-5(c), subject to the provisions of Rule 4:42-9." Barr, supra, 418 N.J. Super. at 46. When determining whether and to what extent a counsel fee award is appropriate, a 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.

[R. 5:3-5(c).]

Defendant argues the Family Part judge failed to consider these relevant factors when determining an award of counsel fees. However, the record does not support her claim. The judge clearly stated she did not "find any bad faith on [plaintiff's] part," pursuant to Rule 5:3-5(c)(3). The judge relied on plaintiff's consistent payment history to support her finding. The judge further found that the improper adjustment made by the Probation Department was responsible for plaintiff's arrears and, therefore, denied defendant's motion to hold plaintiff in violation of litigant's rights. The judge repeatedly cited this fact as a basis for her decision not to award attorney's fees. See R. 5:3-5(c)(7). The judge also considered that it was "[defendant's] request for oral argument," an appearance that was optional and not mandatory, contributing to attorney costs. See R. 5:3-5(c)(9). We defer to the Family Part judge's findings of fact. See E.P., supra, 196 N.J. at 104.

Defendant incorrectly relies on Loro v. Colliano, 354 N.J. Super. 212 (App. Div. 2000), where we remanded an order when the trial judge made no findings regarding any factors set forth in Rule 5:3-5(c). The present matter is dissimilar from Colliano. Here, the Family Part judge made factual findings relative to defendant's request for attorney's fees, namely: (1) plaintiff had not acted in bad faith; (2) plaintiff was not in violation of litigant's rights because the arrears were due to an adjustment made by the Probation Department; and (3) plaintiff was responsible for the additional costs associated with her request for oral argument.
Finally, despite defendant's assertion that Section 62 of the Agreement requires plaintiff to pay counsel fees, the Agreement does not so mandate. The relevant provision of the Agreement states, "[a]ny violation of the Husband's obligation to submit timely payments under this agreement may subject the Husband to sanctions, counsel fees, or such other appropriate measures for the enforcement of the terms herein." (Emphasis added).

"When examining the terms of a[n] . . . agreement, we are guided by the rules of contract construction." Globe Motor Co. v. Igdalev, 436 N.J. Super. 594, 601 (App. Div. 2014). See alsoThompson v. City of Atl. City, 190 N.J. 359, 379 (2007). "The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.), certif. denied, 127 N.J. 548 (1991). The parties' intention as expressed is "'revealed by the language used, taken as an entirety; and, in the quest for the intention, the situation of the parties, the attendant circumstances, and the objects they were thereby striving to attain . . . .'" Id. at 602 (alteration in original) (quoting Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super. 324, 339 (App. Div.), certif. denied, 188 N.J. 353 (2006)).

Here, the plain language of the relevant provision clearly states that plaintiff "may" be subject to counsel fees, allowing for judicial discretion in the matter. The judge was correct in not determining a contractual obligation to impose attorney's fees on plaintiff. As such, we discern no error in the judge's determination.

Affirmed.