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December 11, 2015

Argued(A-5074-13) November 9,2015 and Arguedtelephonically (A-0844-14)November 12, 2015 Decided

Before Judges O'Connor and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-257-08.

Damiano Marcello Fracasso argued the cause for appellant.

Respondent has not filed a brief.


These appeals, which we have consolidated for decision in a single opinion, challenge the May 23 and October 10, 2014 post-judgment orders that enforced an assessment of attorney's fees for bad faith. We affirm in part and vacate in part.

The parties were divorced in 2008. In their property settlement agreement, defendant David Homa ("father") was ordered to pay child support for the parties' two children. In 2010, he unsuccessfully filed to reduce child support when the parties' older daughter started college. After warning the application likely would not be successful and conducting an evidentiary hearing, the trial court found the application to be "specious," "egregious," an "abomination" and a "waste of time." In a supplemental order on September 25, 2012, $16,248.65 in attorney's fees were assessed against the father, to be paid $400 per month. The trial court found the father's "scorched earth litigation mode," where he litigated over a minimal difference in child support and ultimately offered to settle on terms similar to the mother's original position, caused plaintiff Nancy Homa ("mother") to "incur unnecessary legal fees and costs."

These attorney's fees were paid until October 2013 when the father claimed a lack of ability to pay. This prompted two enforcement applications. The resulting May 23, 2014 and October 10, 2014 orders are the subject of the current appeals.

On May 23, 2014 and again on October 10, 2014, the trial court granted enforcement of its prior attorney's fee order. In the May 23, 2014 order, the court ordered payment of attorney's fees that had accrued from October 2013. Another $2,250 in fees were assessed against the father for bad faith.

In the October 10, 2014 order, an additional $1,000 in bad faith attorney's fees were assessed. The trial court found attorney's fees could be assessed to protect an innocent party, to impose punishment, and where a party has defied a court order not based on neglect or honest mistake. The court characterized the father's conduct as "egregious." The order converted all unpaid attorney's fees to a judgment. Finding "defendant has no intention to pay based on the history to date" and seeking to "avoid piecemeal judgments and piecemeal collections and their attendant costs," the court added the amount of the unpaid attorney's fees to the father's child support arrears because attorney's fees were "incurred in litigation respecting child support and should be properly tacked on in a place where plaintiff and the court can have some comfort level the court order will actually be followed." Finally, the order required disclosure of the amount of fees the father had paid to his own attorney for the 2012 hearing and the 2014 motions and appeal.

In the time between the May and October 2014 enforcement orders, this court affirmed the trial court's first assessment of attorney's fees from September 2012 in an unpublished decision, Homa v. Homa, No. A-0706-12 (App. Div. June 20, 2014), finding the assessment of bad faith attorney's fees was supported by the record. Thereafter, the father's application for reconsideration was denied. Homa v. Homa, No. A-0706-12 (App. Div. July 24, 2014), stay denied, Homa v. Homa, No. A-0844-14 (App. Div. Jan. 5, 2015), certif. denied, Homa v. Homa, 220 N.J. 575 (2015).

Although the first order for attorney's fees had been appealed but not decided by the time the first enforcement application was made, it cannot seriously be questioned the trial court had jurisdiction to hear applications to enforce the prior support order, which had not been stayed. A trial court has continuing jurisdiction to enforce judgments and orders under Rule 1:10-3. "[T]he pendency of an appeal from an order or judgment which has not been stayed has no effect at all on the jurisdiction of the trial court to entertain a proceeding to enforce that order or judgment." Pressler, Current N.J. Court Rules, comment on R. 1:10-3 at 4.5 (2016); see also R. 2:9-1(a). Both the May and October 2014 orders granted motions to enforce litigants' rights for payment of overdue attorney's fees from 2012 but they were not stayed. Because of this, we agree the trial court retained jurisdiction to enforce its prior order.

We also agree the trial court had authority to assess additional attorney's fees. R. 1:10-3 permits an award of attorney's fees at the discretion of the trial court "to be paid by any party to the action to a party accorded relief under this rule." Therefore, because the trial court retained jurisdiction to enforce litigants' rights, it retained the ability to assess additional attorney's fees connected with enforcement, even though there was an appeal pending.

This court finds no abuse of discretion on the part of the Family Part judge in assessing additional attorney's fees here. The assessment of attorney's fees is left to the sound discretion of the trial court, Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd, 208 N.J. 409 (2011), and is reviewed under an abuse of discretion standard. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); Rendine v. Pantzer, 141 N.J. 292, 317 (1995); Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). An award of fees, generally, is not disturbed unless the award was "so wide of the mark as to constitute a mistaken exercise of discretion." Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).

In considering an application for counsel fees, 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 the award.

[R. 5:3.5(c).]

As long as there is support for the determination, the trial court's factual findings will not be disturbed whether or not every factor is discussed. See Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div. 2013) (upholding the trial court's award of attorney's fees because, although not every factor was specifically addressed, "the judge recited the support for her determination"). Deference is given to fact finding, especially because of "the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Here, the fees assessed relate to how this litigation was conducted. Bad faith can be considered for counsel fee purposes, but only as it relates to the conduct of the litigation. Mani v. Mani, 183 N.J. 70, 95 (2005). Conduct that increases litigation costs through recalcitrance, defiance of court orders or misrepresentation will support an award of attorney's fees. Yueh v. Yueh, 329 N.J. Super. 447, 458 (App. Div. 2000); Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (observing that the court could consider conduct that forced unnecessary expenditures for counsel fees). However, attorney's fees are not to be punitive. Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997). Rather, they are to reflect additional and unnecessary costs imposed on the innocent party. Yueh, supra, 329 N.J. Super. at 461.

We affirmed the trial court's September 25, 2012 order awarding counsel fees to the mother of $16,248.65. Homa v. Homa, No. A-0706-12 (App. Div. June 20, 2014) (slip. op at 5). When the father failed to pay the court ordered fees, the mother was forced to expend additional funds to enforce that order. The trial court did not abuse its discretion in awarding additional fees in light of the father's recalcitrance in obeying the order and causing the mother to incur additional fees to enforce it. We are satisfied the trial court, knowledgeable of the history of this litigation and the parties' finances, properly considered the factors in Rule 5:3-5(c) when it ordered the father to pay additional fees.

That the father prevailed on one issue involving emancipation, which the mother was willing to concede, does not change the result here. Fees can be awarded to any party in a matrimonial case whether or not they prevail. R. 5:3-5(c); Reese, supra, 430 N.J. Super. at 586.

Further, the trial court did not abuse its discretion in setting the amount of the fees. The trial court was familiar with the record and certifications of services.1 This court is satisfied the trial court considered relevant factors in downwardly adjusting the requested fees.

There is no support for the argument that attorney's fees cannot be awarded post-judgment for bad faith. N.J.S.A. 2A:34-23 expressly references post-judgment orders in matrimonial cases and the necessary evaluation of the parties' good and bad faith. Fee awards are not limited to cases that are "frivolous," but may be ordered in the court's discretion in cases where a party's conduct increases litigation costs. See Yueh, supra, 329 N.J. Super. at 458.

Therefore, we affirm the trial court's orders awarding attorney's fees. The trial court's statements of reasons provide an adequate explanation and indicate that relevant factors and case law were considered. We are satisfied there is adequate proof the father's failure to adhere to the court's orders was done in bad faith and caused the mother to incur unnecessary costs and counsel fees.

We find no error in the trial court's order adding attorney's fees to the father's child support arrears. This order was based on findings by the court that the father showed "no inclination to pay, but rather [sought] to force the mother to incur additional fees." The court found the fees were incurred in litigation respecting child support and should be "tacked on" to arrears.

"Child support" is defined as

the amount required to be paid under a judgment, decree, or order . . . for the support and maintenance of a child and the parent with whom the child is living, which provides monetary support, health care coverage, any arrearage or reimbursement, and which may include other related costs and fees, interest and penalties, income withholding, attorney's fees and other relief.

[N.J.S.A. 2A:17-56.52 (emphasis added).]

Therefore, child support can include attorney's fees where they are related to the support and maintenance of a child. Ibid.

Here, the record adequately supports and the trial court properly found that the assessment of fees was connected to litigation respecting child support. The issues arose initially from the father's application to modify child support and then the mother's attempts to enforce the September 25, 2012 supplemental order. As such, we find no error in the court's order to include these attorney's fees in the arrears to be collected through the Probation Division. The purpose of the statute, after all, is to be curative and broadly construed. Harris v. Harris, 235 N.J. Super. 434, 443 (Ch. Div. 1989), overruled on other grounds, Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 11 (App. Div. 1991), superseded by statute on other grounds, Mahoney v. Pennell, 285 N.J. Super. 638, 642-43 (App. Div. 1995).

The argument raised by the father about the tax implications of treating attorney's fees as arrears is not properly before us.2 There is nothing in the record showing how the arrears have been treated for tax purposes.

Finally, we do vacate part of the October 10, 2014 order that required disclosure of the amount of fees the father paid to his counsel. We expressly do not base this finding on the attorney-client privilege. Rather, we vacate only because the trial court never explained why it ordered the disclosure of this information.

Affirmed in part; vacated in part. We do not retain jurisdiction.

1 The August 27, 2014 motion to enforce the payment of attorney's fees filed by the mother refers to a certification of services that is missing from the appendix prepared and filed by the father's attorney, as are some of the other exhibits that were referenced in the mother's motion. Of the certifications submitted, they reflect appropriate charges.

2 Without deciding this issue definitively here, we do note there is authority that indicates that child support remains included in the taxable income of the obligor whether the attorney's fees are collected as a judgment in the Law Division or as arrears through the Probation Division. 26 U.S.C.A. 71(c)(1).

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