DEANA CALLAHAM v. EDWARD R. CALLAHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEANA CALLAHAM,

Plaintiff-Respondent,

v.

EDWARD R. CALLAHAM,

Defendant-Appellant.

______________________________

September 24, 2014

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1444-11.

Cavalli & McCann, L.L.C., attorneys for appellant (Brian P. McCann, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from an April 10, 2013 order awarding counsel fees to plaintiff's attorney. We reverse the award, remand, and direct the judge to make the requisite findings of fact and conclusions of law pursuant to Rule 1:7-4(a).

In May 2012, the parties obtained a Final Dual Judgment of Divorce (JOD), which the court amended in June 2012. The amended JOD required defendant to pay $560 a week in alimony, and $690 a week in child support for the parties' three children. The judge reached those amounts after imputing income to the parties.

Defendant lost his job and was unable meet his support obligations. As a result, he was arrested and incarcerated. The judge released defendant from incarceration, placed him in the Work Release Program with a GPS ankle-bracelet, and conducted a lengthy ability-to-pay hearing. The judge found that defendant demonstrated his inability to satisfy his support obligations, which she reduced to $156 a week in child support and $20 a week in alimony.

At the end of the hearing, the judge asked plaintiff's counsel to submit a certification of services for counsel fees. The attorney submitted his certification stating that

[t]he defendant's refusal to pay support resulted in the issuance of two arrest warrants in March 2012. After the warrants were issued, defendant failed to appear for continuation of the parties' divorce trial on April 19, 2012. He was absent for eight months until he was arrested in October 2012. From June 2011 to the date of his arrest, defendant sporadically made nominal support payments despite earning six-figure income as determined by [the court] in the divorce case. Thus, defendant necessitated plaintiff's expenditure of counsel fees in this matter in an effort to obtain desperately needed support for herself and her three young children.

Defendant opposed the request arguing that he demonstrated changed circumstances, proved that he was unable to pay the original support obligations, contended that plaintiff prolonged the ability-to-pay hearing unnecessarily, maintained that he was unable to pay his own attorney, let alone plaintiff's counsel, and asserted that plaintiff otherwise failed to show that she was entitled to fees pursuant to Rules 5:3-5(c) and 4:42-9. The judge indicated that she "considered the relevant factors as required by New Jersey Law," and awarded counsel fees "for the reasons set forth in the Certification of Services by [plaintiff's attorney]."

On appeal, defendant argues that the judge (1) abused her discretion by failing to consider the factors enunciated in Rules 5:3-5(c); and (2) erroneously relied on the reasons contained in the certification and failed to make the requisite findings of fact and conclusions of law.

Subject to the provisions of Rule 4:42-9, the Family Part may award counsel fees at its discretion. R. 5:3-5(c). The court should 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.

[Ibid.]

Here, the judge made insufficient findings and conclusions of law. "Simple omnibus references to the rules without sufficient findings to justify a counsel fee award makes meaningful review of such an award impossible, thus necessitating a remand." Loro v. Colliano, 354 N.J. Super. 212, 227-28 (App. Div.) (reversing and remanding where the trial court simply ordered the defendant to pay the plaintiff's counsel fees "[p]er R. 4:42-9(a), R.P.C. 1.5, and R. 5:3-5(a)"), certif. denied, 174 N.J. 544 (2002); see also Barr v. Barr, 418 N.J. Super. 18, 47 (App. Div. 2011) (holding that even where the trial court considered the parties' conduct, defendant's ability to pay, and the actual fees incurred when awarding counsel fees to the plaintiff, remand was nevertheless appropriate because the trial court neglected to "analyze the parties' relative incomes or plaintiff's ability to pay her own counsel fees").

We therefore reverse the award of counsel fees and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.