ALEXANDER SIMON VS. DIANA M. BORRERO(FM-18-1006-13, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 30, 2017
• Docket: A-3937-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3937-15T2

ALEXANDER SIMON,

Plaintiff-Appellant,

v.

DIANA M. BORRERO, f/k/a DIANA M. SIMON,

Defendant. _________________________________

Submitted May 10, 2017 – Decided June 30, 2017

Before Judges Alvarez and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1006-13.

Alexander Simon, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Alexander Simon appeals from two matrimonial post-

judgment orders: the first requiring the parties to pay off their

respective shares of the children's student loans, to the extent

the loans were incurred to pay for room and board, books and fees; the second granting defendant's request for attorney fees and

costs.1 We affirm.

The parties were divorced on August 9, 2013. Three children

were born of their relationship. Subsequent to the Judgment of

Divorce, the parties have engaged in motion practice to resolve

disputes relative to various issues involving the children,

including responsibility for college expenses. Two orders entered

by the Family Part, which emanated from post-judgment motions,

form the basis for plaintiff's appeal.

On May 18, 2016, plaintiff appealed the February 23 order

requiring the parties to pay off their respective shares of the

children's student loans within ninety days, and the May 3 order

requiring plaintiff to pay a portion of defendant's attorney fees.

At the outset, we note that plaintiff's appeal of the February

23 order is untimely. Pursuant to R. 2:4-1(a), appeals from final

orders shall be taken within forty-five days of their entry.

Plaintiff filed an appeal outside the forty-five-day period and

did not seek a motion to extend time pursuant to R. 2:4-4(a).

Issues not raised by a timely appeal are barred. See Heffner v.

1 Plaintiff's brief noted a third order dated June 29. That order post-dates the Notice of Appeal. Plaintiff has not appealed from that order.

2 A-3937-15T2 Jacobson, 192 N.J. Super. 299 (App. Div. 1983), aff'd, 100 N.J.

550 (1985).

We next address the May 3 order. In their respective motion

and cross-motion, both parties sought reimbursement for attorney

fees and costs. In his statement of reasons, the judge cited to

R. 5:3-5(c). Pursuant to that Rule, the following should be

considered, in addition to the information to be submitted pursuant

to R. 4:42-9, in determining an award of attorney fees:

(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.

One purpose of allowing an attorney fee award is to "prevent

a maliciously motivated party from inflicting economic damage on

an opposing party by forcing expenditures for counsel fees." Kelly

v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992). In exercising

its discretion, the court may also consider the good or bad faith

exercised by the parties. Williams v. Williams, 59 N.J. 229, 233

(1971). Indicia of bad faith may include an unwillingness of a

3 A-3937-15T2 party to enter into meaningful negotiations to settle issues and

intentional non-compliance with court orders. Borzillo v.

Borzillo, 259 N.J. Super. 286, 293 (Ch. Div. 1992).

The judge found that plaintiff refused to communicate with

defendant regarding numerous issues that required cooperation, and

found plaintiff was non-compliant with several provisions of the

February 23 order. The judge noted that many of the issues raised

by the parties would have been resolved had plaintiff engaged in

"good faith communication." Because plaintiff failed to do so,

the judge held that it "will not allow [plaintiff's] bad faith

intransigence to go unsanctioned." After consideration of the

factors set forth in R. 5:3-5(c), defendant was awarded $5000 for

attorney fees. This appeal followed.

An award of attorney fees is a decision that rests within the

discretion of the judge and is thus reviewed for an abuse of that

discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427,

443-44 (2001). "'[F]ee determinations by trial courts will be

disturbed only on the rarest of occasions, and then only because

of a clear abuse of discretion.'" Id. at 444 (quoting Rendine v.

Pantzer, 141 N.J. 292, 317 (1995)). An abuse of discretion occurs

where the trial court decision was "'made without a rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis.'" United States v. Scurry, 193

4 A-3937-15T2 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor,

171 N.J. 561, 571 (2002)).

In light of our deferential standard of review, we find the

attorney fee award did not constitute an abuse of discretion. The

judge properly considered and applied the factors pursuant to R.

5:3-5(c) in his well-reasoned and thorough statement of reasons.

We accord deference to the Family Part's findings of fact due to

that court's special expertise in family matters and, here, to the

judge's familiarity with the parties. Cesare v. Cesare, 154 N.J.

394, 411-413 (1998). In sum, we discern no basis for error.

Affirmed.

5 A-3937-15T2