ANDRIENNE E. MORRIS VS. ASMAR J. CAPERS (FD-02-0898-17, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 23, 2020
• Docket: A-3181-18T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3181-18T2

ANDRIENNE E. MORRIS,

Plaintiff-Appellant,

v.

ASMAR J. CAPERS,

Defendant-Respondent.

Argued telephonically September 15, 2020 - Decided September 23, 2020

Before Judges Yannotti and Natali.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-0898-17.

Philip Petrullo argued the cause for appellant (Russo Petrullo Law Group, LLC, attorneys; Philip Petrullo, on the briefs).

Brian D. Iton argued the cause for respondent.

PER CURIAM Plaintiff appeals from an order entered by the Family Part on December

28, 2018, which granted defendant's motion for the award of attorney's and

expert's fees. Plaintiff also appeals from an order dated March 8, 2019, which

denied her motion for reconsideration. We affirm in part, reverse in part, and

remand for further proceedings.

I.

We briefly summarize the pertinent facts and procedural history of this

dispute. The parties were involved in an intimate relationship but never married,

and in June 2013, a child was born of the relationship. In March 2017, plaintiff

filed a complaint for custody and child support. Defendant filed a counterclaim

for custody and parenting time. In April 2017, the parties appeared before a

child support hearing officer.

Thereafter, the trial court entered an order dated April 5, 2017, which

designated plaintiff as parent of primary residence and required defendant to pay

child support in the amount of $195 per week. The court also referred the issues

raised in defendant's counterclaim to mediation. Mediation was not successful.

Defendant then issued subpoenas to verify the amount of plaintiff's

income, and plaintiff filed a motion to quash the subpoenas. At the hearing on

the motion, plaintiff represented to the court that her only income from all

A-3181-18T2 2 sources was $852.50 per week. The court entered an order dated May 25, 2017,

denying plaintiff's motion to quash the subpoenas based on the court's oral

decision on the record.

In February 2018, defendant filed a motion seeking a downward

modification of child support, sanctions, attorney's fees, increased parenting

time, and other relief. The court entered an order dated May 4, 2018, which

required plaintiff to provide her personal and business tax returns for 2014 to

2017.

Thereafter, the parties exchanged discovery regarding their incomes. In

June 2018, defendant retained an expert to perform a forensic review of

plaintiff's bank statements and tax returns for 2016 and 2017. The court

scheduled the matter for a plenary hearing.

The parties later agreed to the entry of a consent order dated August 31,

2018. Among other things, the order stated that the parties shall continue to

have joint legal custody of the child and plaintiff shall be designated the parent

of primary residence.

The dispute over parenting time was referred to the Bergen Family Center

(BFC), and the parties agreed to the amounts of income that would be imputed

to them for purposes of calculating child support. The order also resolved issues

A-3181-18T2 3 regarding the payment of unreimbursed medical expenses, use of the child tax

exemption, and life insurance. The order stated that the parties had not been

able to resolve the issue regarding reimbursement of childcare and

extracurricular expenses, or the issues of attorney's and expert's fees.

Thereafter, defendant filed a motion seeking the award of attorney's and

expert's fees. Plaintiff opposed the motion and filed a motion seeking

reimbursement of childcare and extracurricular expenses and the award of

attorney's fees.

On December 28, 2018, the judge entered an order granting plaintiff's

motion for reimbursement of childcare and denying plaintiff's request for certain

extracurricular expenses. The judge required plaintiff to pay defendant's

attorney's fees of $39,505.19, and defendant's expert fees of $9,375. In the rider

appended to the order, the judge set forth her reasons for her decision regarding

counsel and expert fees.

The judge reviewed the factors for the award of attorney's fees in Rule

5:3-5(c). The judge noted that the analysis performed by defendant's expert

indicated she earned $160,005 in 2006 and $146,664 in 2017, whereas defendant

earned $83,228 in 2006 and $70,918 in 2017. The court found both parties had

not been candid regarding their respective incomes but determined that

A-3181-18T2 4 plaintiff's actions substantially outweighed those of defendant. The judge stated

that plaintiff had withheld relevant financial information, which required

defendant to file his motion to reduce child support.

The judge also noted that both parties had claimed they were unable to

pay their own fees or contribute to the fees of the other party. The judge stated,

however, that the ability of a party to pay his or her own fees is not relevant

when a party acts in bad faith. The judge found plaintiff acted in bad faith by

misrepresenting the amount of her income and rejected plaintiff's contention that

her failure to disclose all of her income was due solely to advice she received

from her prior counsel.

The judge noted that the court had not previously awarded fees to either

party and the results obtained were reflected in the consent order entered on

August 31, 2018. In addition, the court found that defendant filed his motion to

recalculate child support based on the parties' actual income. The judge stated

that defendant "was required to retain forensic review and analyze [p]laintiff's

business and personal income to determine [p]laintiff's business income and

expenses."

The judge also found that plaintiff's continued reluctance to disclose her

income accurately "contravened the spirit and policy" of having disputes

A-3181-18T2 5 regarding child support resolved in a summary proceeding. The judge stated

that defendant's attorneys had devoted a reasonable amount of time to the

litigation, and the legal services were necessary to expose plaintiff's

misrepresentations. The judge found defendant's attorney's hourly rates were

reasonable, and the fees were incurred to prevent defendant from overpaying

child support, noting that the fee was not contingent and no minimum fee was

charged.

The judge also addressed defendant's request for an award of expert fees,

stating that under the attorney's retainer agreement, defendant was responsible

for the payment of the expert's fees. Furthermore, the expert's agreement set

forth the scope of services and the fee to be charged.

The judge found that, based on the consideration of all of the relevant

facts, plaintiff's motion for an award of attorney's fees would be denied and

defendant's motion for the award of counsel and expert fees would be granted.

The judge further found that plaintiff is capable of paying defendant's attorney's

and expert's fees.

Plaintiff thereafter filed a motion for reconsideration. The judge heard

oral argument and placed her decision on the record stating that plaintiff had not

met the standard for reconsideration. The judge noted that her prior decision

A-3181-18T2 6 was not made on a palpably incorrect or irrational basis and she had considered

all relevant, competent evidence. The judge pointed out the disparity between

the income plaintiff initially reported to the hearing officer and the amounts

reflected in plaintiff's business and personal income tax returns. The judge

entered an order dated March 8, 2019, denying the motion for reconsideration.

This appeal followed.

II.

On appeal, plaintiff argues that the trial court erred by awarding defendant

attorney's and expert's fees. She contends the trial court's decision was based

on incorrect reasoning.

Our review of the trial court's award of attorney's fees is limited. Such

determinations should be reversed on appeal "only on the rarest occasions, and

then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J.

292, 317 (1995). "A trial court decision will constitute an abuse of discre tion

where the decision [was] made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis." Saffos

v. Avaya, Inc., 419 N.J. Super. 244, 271 (App. Div. 2011) (alteration in original)

(citations omitted).

A-3181-18T2 7 N.J.S.A. 2A:34-23 provides that a Family Part judge may award counsel

fees in a matrimonial case where the circumstances of the case render them

reasonable and just. The court conducts its analysis using the factors set forth

by Rule 5:3-5(c). The rule states that 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 an award.

[R. 5:3-5(c).]

Plaintiff argues that the Family Part judge erred by basing the award

primarily on her failure to disclose all of her income. The record shows that in

March 2017, when plaintiff filed her complaint for custody and child support,

she reported she earned gross weekly income of $852.50. In April 2017, at the

child support hearing, plaintiff again testified that her sole income in 2017 was

$852.50 per week.

Moreover, in support of her motion to quash defendant's subpoenas for

her financial records, plaintiff stated in a certification that she had reported her

A-3181-18T2 8 income for child support purposes at $874 per week, based on the paystub she

had provided. She also stated she had been "completely truthful" about her

income.

In May 2018, after defendant filed his motion seeking, among other relief,

a reduction in child support, plaintiff asserted that she had not misrepresented

the amount of her income. Furthermore, in a certification submitted to the trial

court in August 2018, plaintiff stated that her only income was the income

reported on her W-2 form. She asserted that as of March 2017, she had no

independent contracting work or consulting income to report.

The business bank statements that defendant obtained in discovery

showed, however, that in 2016, plaintiff earned about $160,000 in income from

her consulting business. The statements also showed that in 2017, plaintiff

earned about $146,000 in such income. Plaintiff later agreed to the entry of the

consent order, which provided that for purposes of calculating child support, her

annual income was $127,000.

Plaintiff maintains, however, that in March 2017, when she filed her initial

application for custody and child support, she was not represented by counsel.

She asserts that although the financial statement she submitted at that time only

referred to her salary of $852.50 per week, she provided her 2014 tax return

A-3181-18T2 9 which disclosed that she had about $53,000 of income from her consulting

business. Plaintiff claims her only income in March 2018 was the income

reported on her W-2 tax form. She asserts that she had been forthright in

disclosing her income.

The record shows that plaintiff did not retain counsel until defendant

served his subpoenas seeking disclosure of her financial records. She claims her

attorney at that time did not advise her that the rules of court require full and

complete disclosure of all relevant facts and evidence that may lead to the

discovery of relevant information. Plaintiff contends her former attorney did

not advise her that the income from her consulting business was relevant or that

she needed to disclose that income.

We are convinced, however, that there is sufficient credible evidence in

the record to support the judge's finding that while both parties had not been

entirely forthright in disclosing their respective incomes, plaintiff's

misrepresentations substantially outweighed defendant's actions. The record

supports the judge's finding that because plaintiff failed to disclose all of her

income, defendant sought discovery, filed his motion to reduce child support,

and retained a forensic expert to analyze plaintiff's business and personal

A-3181-18T2 10 The judge noted that plaintiff had attempted to shift responsibility to her

former attorney for her failure to fully disclose her income, but plaintiff failed

to disclose her business income in her initial filing while she was self-

represented. Although plaintiff submitted a tax return from 2014 that reported

some business income, she repeatedly asserted that her only income in 2017 was

the income reported on her paystubs and W-2 form. The record shows that

plaintiff's statements regarding her income were not accurate.

Thus, there is sufficient credible evidence in the record for the trial court's

finding that plaintiff knew she was required to disclose all of her income and

acted in bad faith by failing to do so. The court did not err by relying on this

finding as support for the decision to award defendant counsel and expert fees.

III.

Plaintiff further argues that the trial court erred by requiring her to pay all

of defendant's counsel fees and the fees for the forensic expert. She contends

the trial court awarded attorney's fees for the pursuit of issues upon which she

prevailed and on issues the parties amicably resolved. She further argues that

the amount of attorney's fees incurred was disproportionate to the limited

reduction in child support that defendant obtained by consent.

A-3181-18T2 11 Here, the trial court did not mistakenly exercise its discretion by awarding

defendant attorney's fees for the time defendant's attorney reasonably devoted

to the dispute regarding child support. As noted, in April 2017, when plaintiff

filed her motion for custody and child support, she claimed her only income was

$852.50 per week, or about $44,330 per year.

Defendant thereafter sought discovery concerning plaintiff's income and

sought a reduction in child support. In discovery, defendant obtained records

that showed plaintiff had not disclosed all of her income. He also retained an

expert, who opined that plaintiff's adjusted gross income for 2017 was $145,664,

which included ordinary business income of $134,824.

Plaintiff later stipulated that for purposes of calculating child support, her

income was $127,000 per year. This was substantially higher than the amount

of income she initially reported in March 2017. The judge found that the

resulting modification in child support would save defendant from overpaying

between $81,798 to $113,508, depending upon the results of the parenting time

evaluation. The record supports that finding.

We are convinced, however, that the court erred by awarding all the

attorney's fees defendant incurred in the litigation. The dispute concerning the

amount of child support was not the only matter in dispute. As stated previously,

A-3181-18T2 12 before the scheduled plenary hearing, the parties resolved many issues and their

agreement was reflected in the consent order dated August 31, 2018.

Here, the trial court erred by failing to determine the amount of attorney's

fees defendant incurred for issues on which he prevailed and on those issues on

which plaintiff prevailed. When making an award of attorney's fees, the court

may exclude time "spent litigating claims on which the party did not succeed

and that were distinct in all respects from claims on which the party did

succeed." Rendine, 141 N.J. at 335 (quoting Rode v. Dellarciprete, 892 F.2d

1177, 1183 (3d Cir. 1990)).

Although defendant obtained a favorable result on his motion for a

reduction in child support, plaintiff prevailed on her claim regarding work-

related childcare expenses. She did not, however, prevail on her claim for

reimbursement of extracurricular expenses. Moreover, the court did not

consider whether plaintiff or defendant prevailed on the issues resolved by

settlement. As to those issues, the court should have considered whether either

party achieved "some of the benefit" he or she sought in the litigation. R.M. v.

Supreme Court of N.J., 190 N.J. 1, 10 (2007) (quoting Hensley v. Eckerhart, 461

U.S. 424, 433 (1983)).

A-3181-18T2 13 We therefore reverse the award of fees in the amount of $39,505.19 and

remand the matter to the trial court for reconsideration of the amount of the fees

to be awarded. The award should be limited to attorney's fees for litigating

issues on which defendant prevailed.

We also conclude the trial court did not err by awarding defendant the fees

charged by the forensic accountant. The judge found that defendant "was

required to retain forensic expert review" to analyze plaintiff's financial records

and determine the amount of plaintiff's "business income and expenses." There

is sufficient credible evidence in the record to support the court's finding that

plaintiff should bear this expense.

On appeal, plaintiff further argues that the award of counsel and expert

fees is contrary to public policy, which favors settlement of disputes; the award

is inconsistent with the applicable court rules; the court failed to make

appropriate findings of fact and conclusions of law; and the court erred by

denying her motion for reconsideration. In view of our decision remanding the

matter to the trial court for further review of the amount of attorney's fees to be

awarded, we need not address these arguments.

Affirmed in part, reversed in part, remanded to the trial court for further

proceedings in accordance with this opinion. We do not retain jurisdiction.

A-3181-18T2 14