IRENE RADZIBABA v. ANDREW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05197-14T4

IRENE RADZIBABA, f/k/a IRENE

BOUCHER,

Plaintiff-Respondent,

v.

ANDREW BOUCHER,

Defendant-Appellant.

_________________________

February 1, 2017

Submitted December 20, 2016 Decided

Before Judges Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-965-11.

Andrew Boucher, appellant pro se.

Irene Radzibaba, respondent pro se.

PER CURIAM

Defendant Andrew Boucher appeals from two provisions in a June 8, 2015 post-divorce order: one reducing his child support $20 per week for his two post-high school, unemancipated children to a new level of $295 per week effective August 31, 2014, and the other denying his request for counsel fees. After reviewing the record in light of the contentions advanced on appeal, we affirm for substantially the same reasons expressed by Judge Steven J. Polansky in his well-reasoned oral decision of June 8, 2015.

Defendant and plaintiff Irene Radzibaba were married in 1987 and had three children. During their seventeen-year marriage, defendant was a vice-president of a bank and plaintiff did not work, although she had a master's degree in tax.

In 2009, the parties, both represented by counsel, signed a Property Settlement Agreement (PSA). Defendant agreed to pay permanent alimony to plaintiff in the amount of $60,000 per year.

The parties agreed to joint legal custody of their three children with plaintiff as the primary caretaker. In addition, defendant agreed to pay $1,365 per month in child support for the three unemanicipated children. The PSA also stated that although "neither party shall be obligated to assist any of their children with college expenses," defendant would pay twenty-five percent of his income received above $195,000 gross per tax year for assisting the children with college expenses.

The PSA also contained a mediation clause stating that

the parties will first attempt to resolve the issues between themselves and, if they are unsuccessful, the parties agree to mediate the issue or issues with the cost of the mediator being shared in proportion to the parties' then current incomes. If mediation is unsuccessful, then either party may file an application with the court to the issue or issues resolved.

The parties divorced in 2011 and soon after began post-divorce mediation and litigation. In 2012, defendant accepted a new job in Phoenix, Arizona for a reduced base salary of $165,000.

In November 2014, the parties appeared1 in court with counsel and agreed their older son would be emancipated, but were unable to agree on child support for the remaining two children. That judge heard argument from both parties' counsel, and continued the motion to another date, requiring the parties to submit written briefs. The subsequent date, in June 2015, Judge Polansky continued the hearing because the prior judge was no longer available. Judge Polansky reviewed the transcript of the earlier portion of the hearing.

After hearing further argument from defense counsel and plaintiff, who was now representing herself, Judge Polansky made his decision, honoring defendant's request to use the statutory factors, N.J.S.A. 2A:34-23(a), rather than the Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A toR. 5:6A at www.gannlaw.com (2017) (Guidelines). Defendant concedes that had he used the Guidelines, Judge Polansky would have obtained a higher child support number. Although plaintiff remained without full-time employment, $40,000 in income was imputed to her for the purpose of calculating child support. Adding alimony to this imputed income, Judge Polansky found plaintiff's income to be more than $100,000. Defendant's 2013 income was approximately $206,000. After reviewing plaintiff's case information statement (CIS) in detail to pull out the costs of the children, Judge Polansky set annual child support for the two children in college2 at approximately $15,000. See R. 5:5-2(a) (requiring that a CIS be filed in all matters involving support).

In reviewing a decision granting or denying an application to modify child support, we must "examine whether, given the facts, the trial judge abused his or her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v. Jacoby, 427 N.J. Super 109, 116 (App. Div. 2012)). We should not disturb the determination unless it is "manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Id. at 326.

A general principle "is that findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015). (quoting Cesare v. Cesare, 154 N.J. 394, 411-12, (1998)). "[B]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Llewelyn v. Shewchuk, 440 N.J. Super. 207, 213 (App. Div. 2015) (quoting Cesare, supra, 154 N.J. at 413). "Accordingly, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, 'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Id. at 213-14 (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)).

Defendant complains not only that the amount of child support represents a windfall to plaintiff, but that the judge improperly did not assess attorney fees against plaintiff despite her bad faith litigation in filing motions before attempting resolution through mediation. Plaintiff alleged that defendant refused to communicate with her, made unilateral decisions, and filed cross-motions without seeking mediation. The primary purpose of an award of attorney's fees is "to permit parties with unequal financial positions to litigate on an equal footing." Gnall v. Gnall, 432 N.J. Super. 129, 165 (App. Div. 2013), rev'd on other grounds 222 N.J. 414 (2015). According to Rule 5:3-5(c), an award of attorney fees is within the court's discretion "if deemed just . . . on any claim for . . . enforcement of agreements between spouses . . . and claims relating to family type matters." Counsel fees may be assessed as a penalty for bad faith litigation. See Mani v. Mani, 183 N.J. 70, 95 (2004).

"An allowance for counsel fees and costs in a family action is discretionary." Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). "On appeal, a decision regarding counsel fees will not be reversed absent a showing of an abuse of discretion involving a clear error in judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011). As long as appropriate factors are considered, "the ultimate decision to award counsel fees rests within the sound discretion of the trial judge." Gotlib v. Gotlib, 399 N.J. Super. 295, 314-315 (2008) (quoting Loro v. Colliano, 354 N.J. Super. 212, 227 (App. Div.), certif. denied, 174 N.J. 544 (2002)).

Judge Polansky first evaluated the financial positions of both parties and, after recognizing plaintiff's superior net worth, and defendant's higher income, found that they both "have the ability to pay their own fees." The judge also evaluated the actions of the parties and determined that both parties "in part acted in bad faith," noting specific instances of poor behavior. After considering these and other factors, he determined not to award counsel fees to either party.

Judge Polansky determined the level of child support and whether or not to assess counsel fees based on the evidence presented to him that he found credible and reasonable, including plaintiff's CIS.

Judge Polansky did not abuse his discretion nor commit a clear error in judgment. His decisions were based on substantial credible evidence.

Affirmed.

1 Defendant appeared by telephone from Arizona.

2 One child was attending a county college and the other a State university.