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NOT FOR PUBLICATION WITHOUT THE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.

August 21, 2014

 

 

Before Judges Sapp-Peterson, Lihotz and Hoffman.

 

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

 

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

 

Michael J. Sprague, attorney for respondent.

PER CURIAM

Defendant Edward Callaham appeals from the entry of a default final judgment of divorce based on the complaint filed by his wife, plaintiff Deana Callaham, following his failure to appear on the last day of a six-day trial; he further challenges the resulting order for alimony and child support, claiming the judge inappropriately imputed income. For the reasons that follow, we affirm.

I.

We discern the following facts and procedural history from the record on appeal. The parties married in 2004. Together they have three children, an eight-year-old girl and five-year-old twin boys. Just prior to their marriage in June 2004, the parties jointly purchased a residence in Paramus, New Jersey (former marital residence or FMR).

While married, defendant operated his own business as an information technology (IT) consultant and worked as an independent contractor for other companies; his earnings were reported as a nonemployee on federal form 1099s. Plaintiff is a registered dietician and part-owner of a three gym franchise; in 2008, plaintiff's franchise was no longer profitable and she began working at Woodcrest Health Care Center (Woodcrest) where she earned $37 per hour. For about half of 2009, defendant was unable to find any IT work.

According to plaintiff, defendant was out of work for two years and depleted their cash reserves, eventually causing their home to go into foreclosure, the shut off of their utilities and the family to rely on food stamps. Plaintiff was unable to accept a full-time position during this time because defendant refused to stay home and watch the children.

As a result of the filing of the foreclosure action, in March 2010 the parties decided to move out of the FMR and rent another residence located in Paramus. The parties were able to rent the FMR in the Fall of 2010 to a tenant at $3000 per month. At the end of November 2010, defendant moved out of the Paramus residence and moved into an apartment in Hoboken. The parties also filed for bankruptcy in 2010.

Defendant claims his employment and subsequent income in 2009, 2010, 2011, and early 2012 were sporadic. However, the record includes five 1099 statements in 2009 from various energy companies totaling $132,078.33;1 yet, defendant never provided a federal or state tax return reflecting the net income he earned nor proof of the business expenses he claimed caused him to suffer a net loss for the year. Notably, these payments were either made directly to defendant or his company.

As 2009 closed and 2010 began, defendant established his own IT consulting business, Innovative Computer Resources (ICR).

In 2010, defendant and his company received $52,793.17 in payments from three different energy companies.2 However, in a January 18, 2011 certification, submitted in opposition to plaintiff's pendente lite motion, defendant claimed that he did not earn any income from energy companies in 2010, stating: "I received one[-]time commissions in 2009." He then admitted to having received $10,000 in 2010 commissions. On June 10, 2010, defendant signed a contract with Freedom to do IT consulting work for Standard & Poor's. From June through December 2010, Freedom paid defendant's company $105,640.00 for defendant's IT services. Thus, in 2010, defendant and his company had a gross income of at least $158,433.17 coming from energy companies and Freedom.

For 2010, defendant produced a Schedule C3 for ICR which listed total gross income of $157,942. However, in response to a subpoena, defendant's accountant produced a Schedule C for 2010 which listed total gross income of $170,833. The amount of business expenses claimed on the two Schedule C forms differed as well. The Schedule C for ICR initially produced by defendant claimed $49,068 in business expenses, resulting in a net profit of $108,874, while the Schedule C produced by the accountant claimed $155,037 in business expenses, resulting in a net profit of $15,796.

On December 13, 2010, plaintiff filed a complaint for divorce claiming irreconcilable differences, along with an order to show cause for emergent financial relief. In plaintiff's certification, plaintiff asserted defendant earned $200,000 per year as an IT consultant.4 She also alleged he had only paid a small amount of support to her since they separated.5 Plaintiff maintained she required immediate financial relief in order to pay for a number of family expenses that had accumulated and gone unpaid, such as food, rent, internet and phone services, children's doctor bills, and school bills.6 Additionally, plaintiff argued "[d]efendant has been secretive in regard to his many business dealings[,]" and further listed "defendant's total gross income from his consulting job is . . . $16,720.00 a month, which works out to gross annual income of $200,640.00." Plaintiff sought to compel defendant to pay her $1,891 per week in unallocated support.

In January 2011, defendant filed an answer and counterclaim for divorce, also based upon irreconcilable differences. Defendant also filed a motion seeking the denial of plaintiff's emergent application for financial relief. In his supporting certification, he accused plaintiff of "deliberately [making] false statements in attempt to influence the [c]ourt against [him]."

During the first half of 2011, defendant continued to receive commissions from energy companies, although in a January 18, 2011 certification, he claimed those payments had ended. Defendant also continued to work at Standard & Poor's pursuant to a second contract with Freedom, which commenced in January 2011.

On January 21, 2011, Judge William R. DeLorenzo, Jr. heard oral argument on the cross-applications. On February 3, 2011, the judge issued a written decision finding it "appropriate to require the [d]efendant to pay to the [p]laintiff $4000 per month or $930 per week in unallocated support[,]" noting defendant's CIS from December 15, 2010 reflected expenses of $13,297 per month or $159,564 per year. Additionally, the judge made the factual finding that in early 2011, plaintiff earned approximately $33,500 per year ($26,000 from Woodcrest and $7500 from selling skin products).7 Defendant's CIS dated January 17, 2011, on the other hand, reflected a gross income of $105,640. Thus, the judge determined plaintiff "will have approximately $35,000 less 20% taxes [or] $2333 per month in income from Woodcrest and her skin care business plus $3000 per month to meet [her present standard of living] of $13[,]297 per month leaving a short fall of $7964 per month." Judge DeLorenzo also noted defendant produced a new 2011 contract with Standard & Poor's which reflected an hourly rate of $65 per hour for a 32.5 hour work week which would generate $109,850 per year.

When defendant failed to make the support payments ordered by the court, plaintiff moved for enforcement and on June 10, 2011, an order was entered confirming defendant's unallocated support obligation of $930 per week and requiring an additional payment of $20 per week toward accumulated arrears of $4410. The following month, plaintiff again sought enforcement of defendant's support obligations and defendant cross-moved to modify his pendent lite support obligation. On August 1, 2011, defendant started working for Star Tek, Inc. at annual salary of $68,000.

Based on this development, defendant requested a substantial decrease in his pendente lite support obligation, claiming he could not afford to pay $930 per week on this salary; however, prior to this new job defendant had not complied with his pendente lite support obligations, and was further non-compliant with a court order requiring him to pay plaintiff $5000. Defendant argued that his annual gross income should be limited to $68,000, a position he maintained throughout the trial.

Based upon the parties' conflicting certifications, the judge entered an order on August 19, staying any further enforcement of the support order until a hearing scheduled for August 29, 2011. This hearing was adjourned until September 15, 2011, but the record does not indicate a hearing occurred on that date. Instead, the matter came before a different judge on September 20, 2011, on a probation enforcement calendar, which resulted in an October 5, 2011 order staying enforcement of defendant's support obligation until further order of the court. This was likely entered in anticipation that the parties' divorce trial would commence within a few months.

Thereafter, defendant filed an order to show cause seeking exclusive occupancy of their FMR, which Judge DeLorenzo granted on December 13, 2011.

In defendant's case information statement (CIS) dated August 26, 2011, and signed on September 9, 2011, defendant identified two bank accounts, both of which were listed as "closed." He also represented that his company Green Rock Power (GRP) owed him $26,000. However, in 2011, defendant's business bank accounts received $17,582.80 in deposits from various energy companies. Additionally, Liberty Power Holdings, LLC (Liberty Power) provided proof that it paid ICR, defendant's company, $25,595.83 in commissions between January 1 and July 6, 2011. However, defendant's business bank records disclosed only $14,549.92 in deposits during that timeframe. Therefore, defendant failed to account for $11,045.91 of the deposit from Liberty Power. Defendant, through GRP, had other bank accounts, with Chase Bank and Bank of America, in which he deposited checks. Although defendant never voluntarily produced any records for these or any other accounts, plaintiff successfully subpoenaed records from TD Bank, Chase Bank, and Bank of America.

In further support of the claim that defendant was earning additional income, plaintiff subpoenaed documents from Ness U.S. (Ness) regarding its relationship with defendant. A major component of defendant's argument on appeal concerns these documents, which include a Vendor Agreement between GRP and Ness. These records also include invoices from GRP for defendant's services and payments to GRP. Ness was billed $16,200 for defendant's services in June and July 2011, the two months during which defendant claimed, in an August 9, 2011 certification, he "had no source of income whatsoever." Although, defendant argues these documents were improperly admitted, the Bank of America records, specifically the deposit receipts, corroborate the fact that Ness was writing checks to GRP and GRP was depositing them.

Therefore, even without relying on the Vendor Agreement, the related invoices, checks and deposits into GRP's Bank of America account provide a documented paper trail of substantial income defendant received for his IT services from June 2011 through at least January 2012. Despite this evidence, defendant repeatedly told the court that his income was limited to his salaried position with Star Tek, Inc. Notably, on February 27, 2012, defendant testified concerning his relationship, or alleged lack thereof, with Ness. The following is an excerpt from the cross-examination of defendant regarding the checks made out to GRP, and the subsequent deposits of these checks in an account at Bank of America:

Q: . . . [Y]ou've had a chance to look at these documents that we got from Ness USA, correct?

 

A: I'm unsure of where you got these documents from.

 

Q: . . . So, the cover letter here that indicates the letterhead of Ness and it's from Rocco Cozza . . . you don't believe that's a legitimate document.

 

A: I think that we would have to have Mr. Rocco Cozza here.

 

. . . .

 

Q: [This is] a Ness check and it's written to Green Rock Power, correct?

 

A: Correct.

 

Q: And, the address of Green Rock Power is the apartment you rented in Hoboken, correct?

 

A: That is correct.

 

Q: And, the check is dated July 14, 2011?

 

A: I don t see that.

 

Q: At the top of the page on the left.

 

A: I still don t see that.

 

Q: Top of the page on the left.

 

A: I don t see it on the check.

 

. . . .

 

Q: . . . And did you receive this check?

 

A: I believe so.

 

Q: And, what did you do with it?

 

A: I don t recall.

 

. . . .

 

Q: Why did Ness write you a check in July 14, 2011 for $5400?

 

A: An agreement that we have.

 

Q: Pursuant to what, what was the agreement?

 

A: It's for different loans that we acquired through them.

 

. . . .

 

Q: . . . And, this is an invoice from Green Rock Power, is that correct?

 

A: I'm unsure. I haven t - - this is my first time seeing this.8

Defendant further testified that the $60,000 in Ness checks deposited into GRP's bank account were loans, although he did not know how the loans came about and he never had contact with anyone from Ness. He could not provide any information regarding promissory notes related to the alleged loans.

On April 19, 2012, the final scheduled date of the trial, defendant failed to appear. By this time, a bench warrant had been issued because defendant failed to make his support payments. Through his attorney, defendant claimed he was in Indiana attending to his mother, who was ill. Additionally, defendant telephoned the court on the morning of the hearing to advise the court he was unable to appear because there was an active warrant for his arrest. Judge DeLorenzo was not convinced by defendant's reason for failing to appear and proceeded to enter default and allowed plaintiff to complete the trial.

Almost three weeks later, defendant filed a motion "pursuant to [Rule] 4:49-2" for an order "granting reconsideration and vacating the default judgment," even though the default judgment had not been entered, at that point. While the intent of the application was clearly to vacate the entry of default under Rule 4:43-3, defendant's supporting certification failed to provide details or documentation regarding his failure to appear for the last day of the trial. On May 17, 2012, the trial court entered an order denying all relief requested by defendant.

On May 30, 2012, Judge DeLorenzo entered a final judgment of divorce.9 The judge also provided a twenty-two page written decision setting forth his findings of fact and conclusions of law, "[a]fter reviewing the documents admitted into evidence and after having an opportunity to assess the credibility of the parties, who both testified," and additional witnesses. The judge evaluated the credibility of each of the witnesses and found plaintiff "testified in a straight forward manner without hesitation" whereas defendant "did not answer all the questions relating to his work and related income in a straight forward manner. The [d]efendant attempted to avoid answering questions and testified as to no memory as to facts sought by [p]laintiff's counsel. The [c]ourt finds that the [d]efendant's lack of memory was feigned." Notably, the court did not "accept the [d]efendant's testimony as to his financial situation." The court further found defendant "attempted to avoid answering financial questions and, in the end, simply testified that he could not remember or did not have financial information such as confirmation that his cash flow as set forth in the bank records subpoenaed by the [p]laintiff represented anything other than income."

Next, the court addressed the issue of alimony. Plaintiff conceded she should receive limited duration alimony (LDA) rather than a permanent alimony, and requested $900 per week for four years. The court considered the factors set forth in N.J.S.A. 2A:34-23(b) and found that LDA of $560 per week for four years was fair and appropriate. In setting this amount, the court accepted plaintiff's "position as to imputation of $61,500" to her, and an estimated $29,880 per year of work-related child care costs. Notably, the court imputed $150,000 to defendant.

Regarding an award of counsel fees, the trial court considered the plaintiff's need based upon her imputed income of $61,568 per year, her work-related child care of $29,880 per year, and defendant's imputed income of $150,000 per year. The court then determined plaintiff's need for a "contribution to her attorney fees which were exacerbated by the [d]efendant's failure to be candid in discovery and at trial." The court concluded that given defendant's income he has the ability to contribute to plaintiff's attorneys fees, even if he cannot pay the fees now, "he will be able to pay attorney fees in the future given an earning capacity of at least $150,000 per year." The court ordered defendant to pay plaintiff $60,796.54 in counsel fees, and added this amount to defendant's child support arrears. This appeal followed.

On appeal, defendant contends the trial court abused its discretion when it entered default after he failed to appear for continuation of the trial on April 19, 2012. He further argues the court mistakenly exercised its discretion by admitting into evidence documents that lacked proper evidential foundation and by improperly adding the counsel fee award to defendant's child support arrears. Finally, defendant argues the court abused its discretion by improperly imputing his income, resulting in the imposition of excessive alimony and child support.

II.

Our review of the trial court's factual findings is limited and we are generally bound by the trial court's findings of fact when "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[D]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (citations and internal quotation marks omitted).

Moreover, Family Part judges have a special expertise, we will "not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Cesare, supra, 154 N.J. at 413). Accordingly, we will only disturb the trial judge's decision if there is "a denial of justice because the family court's conclusions are clearly mistaken or wide of the mark." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (citation and internal quotation marks omitted). Nevertheless, a trial judge's legal decisions are subject to a plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

A.

We first address defendant's claim the trial court abused its discretion in entering the default against him instead of accepting his excuse for failing to appear on April 19, 2012, a date scheduled well in advance, when defendant knew he was to return for further cross-examination. We disagree.

Our rules prescribe a two-step default process, and there is a significant difference between the burdens imposed at each stage. When nothing more than an entry of default pursuant to Rule 4:43-1 has occurred, relief from that default may be granted on a showing of good cause. Rule 4:43-3; Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:43-3 (2012) (stating that "[t]he required good-cause showing for setting aside an entry of default pursuant to this rule is clearly a less stringent standard than that imposed by R. 4:50-1 for setting aside a default judgment"). When the matter has proceeded to the second stage and the court has entered a default judgment pursuant to Rule 4:43-2, the party seeking to vacate the judgment must meet the standard of Rule 4:50-1. Here, defendant did not move to vacate the entry of the default judgment and does not argue that Rule 4:50-1 has any application. We therefore limit our consideration to defendant's claim the trial court abused its discretion when it refused to vacate the default entered against him, which raises the issue whether defendant established "good cause" under Rule 4:43-3 in his post-trial motion.

Defendant principally relies upon the holding in Connors v. Sexton Studios, 270 N.J. Super. 390, 393 (App. Div. 1994). There, we reversed the trial court's dismissal of the plaintiff's complaint for arriving late. Id. at 395. The trial court dismissed the case because the plaintiff arrived a few minutes late for a hearing due to traffic and his inability to find parking. Id. at 392. However, on appeal, we noted "dismissal with prejudice, should not be invoked except in the case of egregious conduct on the part of" appellant. Id. at 393. We reversed the trial court because the judge never determined whether "there was 'just excuse' for plaintiff's late appearance, or whether plaintiff failed 'to give reasonable attention to the matter.'" Id. at 394. Notably, the trial judge told the plaintiff, in effect, that no reasonable excuse would justify arriving late for court, even though the plaintiff's explanation was uncontroverted. Id. at 395.

The case under review is clearly distinguishable from Connors. Here, defendant's whereabouts on April 19 and the reason for his failure to appear in court remain uncertain. Indeed, defendant's attorney first learned of defendant's intention not to appear in court on April 19, when the attorney's office called him the day before to remind him of the continuation of the trial the following day. Only then did defendant inform his attorney that he was in Indiana caring for his ill mother and had been there for the past week. Additionally, in defendant's post-trial certification, he stated that he had left New Jersey "a week prior to the court date;" yet, confusingly, defendant's attorney advised the court on April 19 that he had met with defendant "approximately one week" before the resumption of the trial. Defendant further failed to provide his attorney or the court with proof that he was in Indiana or that his mother was ill, even though according to his explanation, he had a week to provide documentation and forewarning. In fact, on April 19, defendant's counsel made clear he had no confirmation of defendant's whereabouts.

Furthermore, defendant was aware his presence was required on April 19, because plaintiff's counsel was in the middle of his cross-examination of defendant when the court adjourned on February 27, 2012. According to defendant's counsel, defendant was "advised that the case would be going forward with or without him."

Finally, defendant telephoned the court the morning of the hearing to advise the court he would not appear. At that time, he neither provided the court with any proof he was out of state nor that his mother was actually ill. Rather, he told the court staff that he was not appearing because of an active warrant for his arrest.

After entering the default on April 19, Judge DeLorenzo made it clear that if defendant could verify his claims, the court would consider such proofs upon the filing of the appropriate motion, obviously referring to an application under Rule 4:43-3, to vacate the entry of default. Between the entry of default and the filing of his motion for reconsideration, defendant had almost three weeks to assemble proof he was in Indiana assisting his ill mother on April 19. Yet, when he filed his motion, defendant failed to provide the court with any documentation to support his claims as to his whereabouts on April 19 or his family circumstances. The court should not vacate a default where the moving party utterly fails to make an adequate showing of good cause. Jugan v. Pollen, 253 N.J. Super. 123, 135 (App. Div. 1992).

In this case, approaching the conclusion of a six-day trial, defendant had an obligation "to keep the court and counsel aware of his whereabouts." Fineberg v. Fineberg, 309 N.J. Super. 205, 217-18 (App. Div. 1998) (citing In re Nackson, 221 N.J. Super. 187, 198 (App. Div. 1987), aff'd, 114 N.J. 527 (1989)). His right to present his case "carries with it the commensurate obligation to cooperate with the court, counsel and other litigants." Id. at 218. Defendant did not provide a justifiable excuse for failing to comply with this obligation. He never explained why he failed to communicate to his counsel his need for a postponement. We are satisfied, therefore, the trial court did not abuse its discretion when it entered the default and thereafter rejected defendant's request to vacate it.

Defendant also claims the court abused its discretion in denying his motion for reconsideration. The contention similarly lacks merit. We review the Chancery Division's denial of a motion for reconsideration under an abuse of discretion standard. Davis v. Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010), aff'd in part, rev'd in part on other grounds, 209 N.J. 269 (2012). Reconsideration is a matter within the sound discretion of the trial court. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). A motion for reconsideration is only granted under certain narrow circumstances, "in which either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). Neither circumstance was present here, and, accordingly, there was no abuse of discretion. The judge properly denied the motion for reconsideration.

B.

Defendant asserts the trial court abused its discretion in accepting and relying upon one specific document in its decision because it lacked appropriate evidential foundation. Accordingly, defendant argues we should vacate the amended final judgment of divorce to the trial court for the continuation of the trial with an appropriate direction to conduct all required evidentiary hearings. We disagree.

A trial court's evidentiary rulings are generally reviewed under the abuse of discretion standard. State v. Darby, 174 N.J. 509, 518 (2002). An evidentiary ruling involving an application of a legal standard, however, is reviewed de novo. Ibid.

Generally, when questions of admissibility of evidence arise, the court generally has an obligation to conduct a hearing to create a record of the decision to admit disputed evidence. N.J.R.E. 104(a). Furthermore, a business record may be admitted if the trial court finds the writing was made in the regular course of business, it was prepared within a short time of the act, condition, or event being described, and the source of information and method and circumstances of its preparation justify allowing it into evidence. Feldman v. Lederle Laboratories, 132 N.J. 339, 354 (1993) (citing State v. Matulewicz, 101 N.J. 27, 29 (1985). However, pursuant to Rule 2:10-2, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" The test for "whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict." State v. Bankston, 63 N.J. 263, 273 (1973).

Specifically, defendant asserts plaintiff's trial Exhibit 33 (P-33), was improperly admitted into evidence over defendant's objection and without a proper Rule 104 hearing; defendant further asserts there was no proper determination the records were business records under the hearsay rule. On the fifth day of trial, defendant objected to the Ness records plaintiff obtained by subpoena because the signature on the document is not defendant's signature. This piece of evidence, according to defendant, "purported to be contracts that [d]efendant allegedly entered into for consulting services in 2010 and 2011, as well as checks issued to [d]efendant."

However, this argument fails because according to the trial record, all parties agreed the documents, including the cover letter from the general counsel and the contract, were business records. Defense counsel never objected to the document being considered a business record when asked by the court.

Defendant further asserts that before these documents could have been properly admitted into evidence, a hearing needed to occur. Ness' general counsel produced all the records in question on February 16, 2012. The records consisted of a June 21, 2011 Vendor Agreement between Ness and GRP for IT services. In addition to the agreement, P-33 included copies of GRP invoices to Ness for services defendant rendered, timecards reflecting the days and hours defendant worked, Ness Checks to GRP, a Probation Department employment verification form, and an e-mail confirming defendant's compensation.

Following defendant's objection, Judge DeLorenzo noted the record did not need to be certified and admitted the document "into evidence conditionally under [Rule] 104(b)," "[s]ubject to cross-examination[.]" The court later specified that the contract and probation document were admitted conditioned on a 104(b) hearing; other documents in P-33 were not specifically admitted conditioned on a hearing.

Defendant correctly states the trial court never held a hearing or permitted cross-examination of the evidence; however, he incorrectly argues that no document in P-33 was properly admitted into evidence. This argument improperly misrepresents the record because only the portion of P-33 relating to the vendor agreement and the probation document was conditionally admitted into evidence. As such, defendant has no basis to argue the trial court should not have considered and relied upon the GRP invoices, the Ness time records, and the Ness checks to GRP.

Nevertheless, even accepting defendant's premise that the admission of the evidence was error, we find this to be harmless error because there was ample other evidence Judge DeLorenzo relied upon to deduce defendant's income without relying on this document. By subpoena, plaintiff obtained the other P-33 documents including copies of the Bank of America checking account records for defendant's company, GRP, all of which were admitted into evidence. Notably, these Bank of America records included copies of numerous checks from Ness addressed to GRP, which were subsequently deposited into the GRP account between July 2011 and January 2012. Therefore, the content of the invoices and checks were corroborated by GRP's Bank of America records and defendant's testimony wherein he admitted to depositing Ness checks into his GRP account.10

Furthermore, in its decision, the trial court did not cite to the probation department form, which was conditionally admitted. Moreover, the Vendor Agreement, which was also conditionally admitted, did not contain compensation information upon which the court could have relied in determining defendant's income or earning ability.

Finally, defendant asserts the trial court's reliance on these documents severely prejudiced him; however, the invoices, Ness checks, and Bank of America records provide uncontroverted proof defendant received compensation from Ness between June 2011 and January 2012. Thus, any improper reliance on the Vendor Agreement and the probation document is harmless error.

C.

Defendant appeals from the trial court order requiring him to pay plaintiff $60,796.54 in counsel fees and costs, arguing the trial court abused its discretion in adding the fees to defendant's child support arrears. Specifically, defendant asserts N.J.S.A. 2A:34-23(a), which the court relied upon in adding plaintiff's attorneys fees to defendant, does not provide the trial court with the authority to add the counsel fee award to the child support arrears.

We only overturn a judge's determination on fees "on the 'rarest occasion[s],'" and only for a "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)). Specifically, an "award of counsel fees in matrimonial actions is discretionary with the trial court, [Rule] 4:42-9(a)(1), and an exercise thereof will not be disturbed in the absence of a showing of abuse." Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970).

Pursuant to N.J.S.A. 2A:34-23,

[w]henever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a decision is rendered on the other issue then before the court and shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.

 

Accordingly, trial judges must consider the following guidelines when awarding counsel fees: "The party requesting the award must be in financial need; the party against whom the award is granted must have the financial ability to pay; and, where the first two factors have been established, the party requesting the fees must have acted in good faith in litigation." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 545 (App. Div. 1992) (citing Darmanin v. Darmanin, 224 N.J. Super. 427, 431 (App. Div. 1988); see also N.J.S.A. 2A:34-23.

Moreover, Rule 5:3-5(c) permits a court to award attorneys' fees to any party "on any claim for . . . enforcement of agreements between spouses . . . and claims relating to family type matters." In considering whether and how much to award, the Family Part judge should consider the following nine factors: the parties' financial circumstances, the parties' ability to pay their own fees or contribute to the other party's fees, the reasonableness and good faith of the positions advanced by the parties, the extent of the parties' fees, any fees previously awarded, the amount of fees previously paid to counsel by each party, the results obtained, the degree to which fees were incurred to enforce existing orders, and any other factor bearing on the fairness of an award. Ibid.; Williams v. Williams, 59 N.J. 229, 233-34 (1971). Furthermore, "'where one party acts in bad faith, the relative economic position of the parties has little relevance' because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party." Id. at 461 (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)).

Here, Judge DeLorenzo specifically noted defendant acted in bad faith during discovery and provided evasive and misleading testimony concerning his employment and income. The judge further noted "[p]laintiff provided to the [d]efendant discovery in good faith. The [d]efendant clearly did not reciprocate. . . Defendant hid income [and] . . . paid child support to a child of a prior relationship while claiming to leave no income to support [p]laintiff and the [c]hildren." Additionally, the majority of plaintiff's legal fees were incurred in obtaining a pendente lite support order, seeking enforcement of the order and in obtaining, by subpoena, defendant's business bank account records and the Ness documents. We find there is no reason to disturb Judge DeLorenzo's decision because the record demonstrates the judge carefully considered the parties' respective incomes and ability to pay. Because almost all the attorney's fees incurred by plaintiff related to financial matters, and an unallocated support order was in effect from the inception of the litigation through the entry of final judgment, we discern no mistaken exercise of discretion in the judge's decision to add the attorneys fee award to defendant's child support arrears.

D.

Finally, defendant argues the trial court inappropriately imputed his income, resulting in excessive alimony and child support determinations. We disagree.

"An award of [child] support is within the discretion of the trial court." Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999). "It will not be disturbed unless it is manifestly unreasonable, arbitrary or clearly contrary to reason or to the evidence, or the result of whim or caprice." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976).

"[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). In making an alimony award in divorce actions, courts may award "permanent alimony[,] rehabilitative alimony[,] limited duration alimony or reimbursement alimony to either party" so long as the factors enumerated in N.J.S.A. 2A:34-23(b) are considered.

The fairness of a support award is dependent on the accurate determination of a parent's net income. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2589 (2014) "'The trial court has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)).

Defendant specifically asserts the trial court incorrectly imputed a gross income of $150,000 per year for support purposes. In making this assertion, defendant again argues the trial court improperly relied on alleged inadmissible evidence. Having previously addressed this issue, we find this argument lacks merit. R. 2:11-3(e)(1)(E).

Next, defendant asserts the trial court failed to address and consider his history of unemployment. Defendant faults the trial court for barely addressing this problem and failing to provide an analysis of defendant's work history and the prevailing job markets, the availability of employment in his field with a salary equivalent to the imputed income of $150,000. However, defendant's resume reflects near constant employment in various IT positions starting in August 2009; additionally, the bank records also indicate that defendant has been steadily earned income since 2009.

Affirmed.

 

 

1 According to the 1099 forms received in evidence, defendant or his company, IRC, received, in 2009: $60,230.90 from Liberty Power Holdings, LLC; $1905.75 from North Eastern Energy Services, LLC; $10,000.00 from America Approved Energy; $5000 from America Approved Energy Direct; and $54,941.68 from America Approved.com LLC.

2 According to the 1099 forms received in evidence, defendant or his company, IRC, received, in 2010: $490.11 from North Eastern Energy Services, LLC; $15,486.69 from America Approved Energy Services Direct; and $36,816.37 from Liberty Power Holdings LLC.

3 The Schedule C was an attachment to defendant's 2010 1040 personal income tax return.

4 However, plaintiff did acknowledge during her testimony that defendant had been unemployed for part of 2009 and 2010.

5 Since the parties' separation, the children have resided with plaintiff.

6 Plaintiff certified she received $5100 per month which included her income and the income from renting the FMR. However, the rent for the house she and her children lived in was $4500 per month.

7 Defendant agreed that plaintiff should receive the $3000 per month rent for the Paramus property without prejudice.

8 This colloquy was representative of defendant's claimed lack of knowledge and memory during his trial testimony regarding his employment and income.

9 The judge entered an amended judgment of divorce on June 15, 2012, which clarified the court's award of alimony and set defendant's child support obligation at $690 per week.

10 During his testimony, defendant was not forthright about depositing the checks into his bank account and had to be asked multiple times before giving a committed answer.