N.B. v. J.B.

NOT FOR PUBLICATION WITHOUT THE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-5041-15T2



N.B.,1

        Plaintiff-Respondent,

v.

J.B.,

     Defendant-Appellant.
____________________________

              Argued April 10, 2018 - Decided May 1, 2018

              Before Judges Reisner, Gilson, and Mayer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FM-07-0166-12.

              Janie Byalik argued the cause for appellant
              (Pashman Stein Walder Hayden, P.C., attorneys;
              Janie Byalik on the briefs).

              Angelo Sarno argued the cause for respondent
              (Snyder Sarno D'Aniello Maceri & da Costa LLC,
              attorneys; Angelo Sarno, of counsel and on the
              brief; Lydia S. LaTona, on the brief).

PER CURIAM



1
     We use initials to protect the parties' privacy interests.
      Defendant appeals from Paragraphs 1 and 2 of a Dual Judgment

of Divorce (DJOD) entered on August 4, 2015, and a June 28, 2016

order     denying    his   motion    for    reconsideration       and    awarding

attorney's fees to plaintiff.         We affirm.

      The parties married in 1989 and had two children, who are now

emancipated.        Plaintiff filed for divorce in July 2011.                   The

parties exchanged discovery and attempted to negotiate an amicable

resolution of their divorce, including the payment of alimony.

When settlement discussions failed, the family judge conducted a

four-day trial.       On August 4, 2015, the judge signed a DJOD and

placed her statement of reasons on the record.                 Under the DJOD,

the judge ordered monthly alimony to plaintiff in an amount higher

than plaintiff requested during settlement negotiations, but less

than the amount of pendente lite support previously ordered.

      Plaintiff submitted three case information statements (CIS)

over the course of the litigation.             Each CIS included a marital

lifestyle budget and an individual budget.                  Plaintiff completed

the CIS forms using the family's monthly bills, bank statements,

and   credit   card   statements.          According   to    plaintiff's       trial

testimony, her CIS reflected the marital lifestyle "give or take

some."    Plaintiff testified that after the parties separated, she

reduced      her     lifestyle      expenses     because       she      "had      no

choice . . . you can't spend more than you make."                       Plaintiff

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explained that she was not enjoying the same lifestyle as she had

during the marriage.        According to the testimony, plaintiff was

spending about half as much money as she spent during the marriage.

        Plaintiff's CIS included amounts for past and future dental

work.     Plaintiff testified she "always ha[d] a lot of dental

[expenses]" because she "ha[s] horrible teeth," requiring numerous

dental implants and caps. Plaintiff presented dental bills showing

an outstanding balance, as well as an estimate for future dental

work.     Plaintiff testified the future work included root canals

and crowns, and none of the work was cosmetic. Defendant confirmed

plaintiff "always had a lot of dental work" during the marriage.

Defendant failed to refute the costs for plaintiff's past and

future dental work.

     Defendant's attorney cross-examined plaintiff on her CIS.

However, defendant failed to submit any evidence disputing the

amounts set forth in plaintiff's CIS, and never requested copies

of the documents plaintiff used to create her CIS.                Defendant

testified that plaintiff's expenses on her CIS seemed high, and

he believed plaintiff was living the same lifestyle as she had

during the marriage.

     In the alimony awarded to plaintiff, the judge included

monthly    expenses   for   plaintiff's   dental   work   and   plaintiff's

payment of her son's college expenses until graduation.           The judge

                                    3                               A-5041-15T2
found plaintiff testified credibly regarding her past and future

dental    expenses      and   noted    defendant    acknowledged    plaintiff's

extensive dental work throughout the marriage.                On the inclusion

of plaintiff's payment of her son's college expenses in the alimony

award,    the   judge    determined     plaintiff    was   foregoing    personal

lifestyle expenses to pay for her son's college.                       The judge

recognized      the   financial   constraints       imposed   on   plaintiff    to

contribute to her son's college expenses, and declined to penalize

plaintiff for reducing her lifestyle while her son completed his

education.

     On     August      27,    2015,    defendant     filed    a    motion     for

reconsideration regarding the alimony and requested that plaintiff

pay his attorney's fees.          Plaintiff cross-moved for an award of

attorney's fees.         On June 28, 2016, the judge issued a written

statement of reasons in support of her decision denying the motion

for reconsideration and amplifying her reasoning in support of the

alimony amount awarded.

     In connection with defendant's motion for reconsideration of

the alimony award, the parties presented evidence of their counsel

fees.     Defendant, represented by his former law firm, testified

that he incurred legal fees in excess of $30,000.                      Defendant

submitted a bill purporting to reflect the amount owed for legal

fees.    Defendant testified that he had not paid any legal fees as

                                         4                               A-5041-15T2
of the date of the divorce trial because his counsel was "kind

enough to let [him] float on this, but eventually [defendant would]

have to pay it."    The judge questioned defendant's attorney about

defendant's payment of legal fees and asked defense counsel to

submit bills or invoices reflecting defendant's fees, as well as

evidence that defendant's former firm was carrying a balance owed

by defendant for legal work associated with the divorce action.2

     Plaintiff's counsel submitted a detailed certification, with

invoices, in support of plaintiff's request for attorney's fees.

Plaintiff incurred in excess of $42,000 in attorney's fees and

costs in the divorce action.    Plaintiff paid approximately $39,000

of her legal expenses.    Applying the factors for awarding counsel

fees, 
N.J.S.A. 2A:34-23 and Rule 5:3-5(c), the judge determined

defendant should pay $21,000, representing one-half of the legal

fees incurred by plaintiff.

     Defendant     appeals,   arguing   the   family   judge   erred    in

calculating plaintiff's monthly expenses to determine alimony.

Specifically, defendant challenges the judge's findings related

to plaintiff's dental expenses and their son's college expenses.

Defendant also contests the award of counsel fees to plaintiff.

In addition, defendant seeks to compel plaintiff to elect the


2
   It does not appear that the requested documents were submitted
to the court.

                                   5                             A-5041-15T2
survivor annuity option for her pension and designate him as the

beneficiary.

     We accord deference to the factual findings of the family

judge "[b]ecause of the family courts' special jurisdiction and

expertise in family matters."   Cesare v. Cesare, 
154 N.J. 394, 413

(1998).   We reverse only if the family judge's conclusions are

"clearly mistaken" or "wide of the mark," to "ensure that there

is not a denial of justice."     Parish v. Parish, 
412 N.J. Super.
 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs.

v. E.P., 
196 N.J. 88, 104 (2008)).     We are not bound by the family

judge's "interpretation of the law and the legal consequences that

flow from established facts."        Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 
140 N.J. 366, 378 (1995).

                                I.

     Our review of an alimony award is limited.     On appeal,

           [a] trial court's findings regarding alimony
           should not be vacated unless the court clearly
           abused its discretion, failed to consider all
           of the controlling legal principles, made
           mistaken findings, or reached a conclusion
           that could not reasonably have been reached
           on sufficient credible evidence present in the
           record after considering the proofs as a
           whole. Substantial weight should be given to
           the judge's observations of the parties'
           demeanor and credibility.

           [J.E.V. v. K.V., 
426 N.J. Super. 475, 485
           (App. Div. 2012) (citation omitted).]


                                 6                            A-5041-15T
2 N.J.S.A. 2A:34-23 sets forth factors to be considered in                      the

trial court's award of alimony.      "The goal of alimony is to assist

the    supported   spouse   in    achieving    a     lifestyle     'reasonably

comparable' to the one enjoyed during the marriage."               J.E.V., 
426 N.J. Super. at 485 (quoting Steneken v. Steneken, 
183 N.J. 290,

299 (2005)).

       Defendant   argues   the   family    judge    erred   in    determining

plaintiff's alimony award because: (1) plaintiff's dental expenses

were exaggerated and non-recurring; (2) $1000 of the individual

expenses included in plaintiff's CIS was for plaintiff's portion

of their son's college costs, which the parties were already

ordered to split, and was not a recurring cost; and (3) the judge's

finding that plaintiff "could" use the $1000 tuition money for

vacations, entertainment, and other personal expenses after the

child graduated was not supported by the record.

        Defendant erroneously contends that plaintiff provided no

evidence documenting her dental expenses.              At trial, plaintiff

submitted past due dental bills and estimates for future dental

work   totaling    over   $20,000.       Defendant    failed      to   challenge

plaintiff's trial testimony regarding her dental expenses.                    The

judge deemed plaintiff's testimony on the subject credible and

reasonable.    Defendant failed to present any evidence warranting



                                     7                                   A-5041-15T2
reversal of the judge's credibility and factual findings related

to plaintiff's dental expenses.

     Defendant also argues the judge erred when she included $1000

of their son's college expenses in arriving at plaintiff's monthly

living expenses.         Defendant claims the college expenses were

calculated and allocated between the parties pursuant to Paragraph

11 of the DJOD.        Defendant contends the inclusion of their son's

college expenses in the alimony award results in him paying twice

for the same expense.

     The    judge     explained     she   included    this   expense   "because

plaintiff    is      currently    incurring    that     expense.   The     court

recognized that once the child graduates those expenses will no

longer exist, but acknowledged that there will be other expenses

that plaintiff has forgone to pay for college and may begin to

incur   those     expenses   such    as   vacations,     entertainment,    etc."

Plaintiff testified that had she not spent the money on her son's

college expenses, she would have spent the money on things for

herself.     The judge concluded plaintiff credibly testified that

she had to forego certain lifestyle expenses due to her financial

limitations resulting from the divorce action.

     Based      on    the    judge's      credibility     determinations      and

application of the statutory factors in calculating the alimony

award, we find the alimony awarded was not an abuse of discretion.

                                          8                              A-5041-15T2
The judge made findings based on her evaluation of the parties'

evidence and testimony, and determined plaintiff had a need for,

and defendant had an ability to pay, the monthly alimony amount.

                               II.

     A family judge's assessment of legal fees in a divorce action

is discretionary.   We "will disturb a trial court's determination

on counsel fees only on the 'rarest occasion,' and then only

because of clear abuse of discretion."          Slutsky v. Slutsky, 
451 N.J. Super. 332, 365-66 (App. Div. 2017) (quoting Strahan v.

Strahan, 
402 N.J. Super. 298, 317 (App. Div. 2008)).

     
N.J.S.A.   2A:34-23   authorizes    the    trial   court    to     award

attorney's fees in matrimonial actions.        The court "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."   
N.J.S.A. 2A:34-23.    Rule 5:3-5(c) also provides

guidelines for awarding counsel fees in a matrimonial action.                 A

court

          must consider whether the party requesting the
          fees is in financial need; whether the party
          against whom the fees are sought has the
          ability to pay; the good or bad faith of either
          party in pursuing or defending the action; the
          nature and extent of the services rendered;
          and the reasonableness of the fees.

          [Mani v. Mani, 
183 N.J.    70,    94-95   (2005)
          (emphasis omitted).]


                                 9                                    A-5041-15T2
     Defendant   argues   the   judge    erred   because   she   mistakenly

concluded defendant had not incurred legal fees during the divorce

action.   Defendant also asserts the judge failed to consider his

ability to pay plaintiff's attorney's fees.

     In this case, defendant and his attorney testified that

defendant had not paid any money for his legal representation, and

that defendant's former law firm contemplated a discharge of the

fees owed by defendant.     Defense counsel acknowledged he had not

submitted invoices to the court.        In deciding attorney's fees, the

judge found "[d]efendant claims that his former firm expects [him]

to pay $30,000 for services upon his behalf, but submits no proofs

that the fees have ever been calculated, charged, or documented."

     Defendant also argues the judge erred in awarding attorney's

fees because she failed to account for defendant's financial

situation at the time of the application.        Specifically, defendant

contends that the judge imputed annual income to him four times

greater than defendant's earnings at the time.

     Defendant relies on his self-serving testimony regarding his

ability to pay attorney's fees.           The judge found defendant's

drastic reduction in income during the divorce proceedings was

likely the result of a lack of good-faith effort to secure adequate

employment and that defendant's annual income during the years



                                  10                                A-5041-15T2
preceding the divorce action supported his ability to pay one-half

of plaintiff's attorney's fees.

     In awarding attorney's fees to plaintiff, the judge found

that: (1) defendant had not paid any legal fees during the four

years of the divorce action; (2) defendant submitted no evidence

that he was billed for legal services or would ever have to pay

for legal services related to the divorce action; (3) defendant

acted in bad faith by rejecting a reasonable settlement offer from

plaintiff, forcing plaintiff to expend legal fees associated with

extensive discovery; and (4) plaintiff paid almost $40,000 in

attorney's fees.     The judge found that defendant's free legal

representation   caused   him   to   take   unreasonable   positions   and

protract the litigation, because defendant had "no 'skin in the

game.'"   The judge concluded it would be inequitable for plaintiff

to bear the entire cost of her representation while defendant was

able to litigate the matter for free.        Based on the foregoing, we

find the judge did not abuse her discretion in awarding attorney's

fees to plaintiff.

                                 III.

     For the first time on appeal, defendant seeks to compel

plaintiff to elect the survivor annuity option for her pension and

designate defendant as the beneficiary.          Because this issue was

not presented to the family judge, the issue is not properly before

                                     11                          A-5041-15T2
us.   A trial court "[can] not grant relief on an issue of which

it was unaware."   State v. Stein, 
225 N.J. 582, 586 (2016).     For

that reason, "appellate courts will decline to consider questions

or issues not properly presented to the trial court when an

opportunity for such a presentation is available 'unless the

questions so raised on appeal go to the jurisdiction of the trial

court or concern matters of great public interest.'"     Nieder v.

Royal Indem. Ins. Co., 
62 N.J. 229, 234 (1973) (quoting Reynolds

Offset Co., Inc. v. Summer, 
58 N.J. Super. 542, 548 (App. Div.

1959).   In addition, defendant's statement of facts fails to cite

references in either the trial court transcripts or other documents

regarding the pension issue per Rule 2:6-2(a)(5) (requiring "[a]

concise statement of the facts material to the issues on appeal

supported by references to the appendix and transcript.")

      Affirmed.




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