LUCY MESHULAM VS. KFIR MESHULAM (FM-02-1827-10, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 1, 2019
• Docket: A-5579-16T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5579-16T2

LUCY MESHULAM,

Plaintiff-Appellant,

v.

KFIR MESHULAM,

Defendant-Respondent. _____________________________

Argued July 17, 2018 – Decided February 1, 2019

Before Judges Ostrer and Vernoia.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1827-10.

Howard B. Felcher argued the cause for appellant (Law Offices of Howard B. Felcher, PLLC, attorneys; Howard B. Felcher and Sydney S. McQuade, on the briefs).

Respondent has not filed a brief.

The opinion of the court was delivered by

OSTRER, J.A.D. This post-judgment matrimonial matter, pertaining solely to the issue of

attorney's fees, returns to us after a remand. We assume the reader's familiarity

with our prior opinion. Meshulam v. Meshulam, No. A-5751-13 (App. Div.

Aug. 1, 2016) (Meshulam I). To summarize, roughly a year after the parties

divorced, defendant moved to set aside their property settlement agreement

(PSA) on the ground that plaintiff fraudulently concealed an increase in her

income. Although plaintiff responded with an excessive and unwarranted

motion practice, it was ultimately established by a court-appointed forensic

accountant that defendant had not disclosed an increase in his own income. The

parties entered into a consent order that left the PSA largely intact, but referred

the issue of attorney's fees to the court. The court awarded defendant $25,858.76

because it found that plaintiff litigated in bad faith. Plaintiff appealed.

We affirmed the court's finding that plaintiff acted in bad faith, but held

that the trial judge "should have considered whether defendant engaged in bad

faith litigation of his own." Id., slip op. at 25. Defendant failed to serve an

updated case information statement (CIS) as ordered. His counsel justified the

failure by erroneously stating – but we had no reason to think knowingly – that

defendant's income had not materially changed. Although defendant's

undisclosed increase in income did not equal plaintiff's increase, it was

A-5579-16T2 2 nonetheless substantial, resulting in near parity of income. That undermined his

claim that plaintiff should pay child support to him. Ibid. We remanded for the

court to reconsider its attorney's fee award in light of three facts: "(1) plaintiff

was justified in exploring increases in defendant's 2011 and 2012 income; (2)

defendant failed to disclose his own increased income and refused to submit an

updated CIS; and (3) the results obtained" in the ultimate settlement did not

"disproportionately favor either side." Id., slip op. at 26-27.

On remand, the trial court reduced its award to defendant to $18,124.50.

The judge focused on the first of the three facts. She subtracted from the defense

counsel's fees the reasonable fees plaintiff incurred seeking discovery of

defendant's income. The trial judge applied an hourly rate that was below the

rate plaintiff's attorneys charged.

On appeal, plaintiff contends that the trial court failed to consider the other

two facts we directed it to consider: that defendant withheld his own income

(while charging plaintiff with fraud for concealing hers), and misrepresented to

the court that there was no material change justifying an updated CIS; and the

parties' ultimate settlement did not result in an overwhelming victory for either

side.

A-5579-16T2 3 We agree that the trial court did not consider these two facts, although it

was duty bound to do so. Justice Brennan expressed the well-settled principle

that "the trial court is under a peremptory duty to obey in the particular case the

mandate of the appellate court precisely as it is written." Flanigan v. McFeely,

20 N.J. 414, 420 (1956).

However, we decline to remand a second time. The judge who handled

this matter retired shortly after she issued her last order. A remand would

impose a burden on a new trial judge, less familiar with the record than are we,

and add to the delay and costs the parties have already incurred. We choose

instead to exercise original jurisdiction pursuant to Rule 2:10-5, so that we may

put an end to this litigation, which was resolved long ago but for the issue of

fees. See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div. 2009)

(stating that an appellate court may exercise original jurisdiction "to resolve a

single issue to conclude litigation, or to end perpetual or lengthy litigation") .

Although we sparingly exercise the power to make original fact-findings, we

may do so when the record is "free of doubt." Henebema v. Raddi, 452 N.J.

Super. 438, 452 (App. Div. 2017). In particular, to avoid a remand and further

litigation costs, we have exercised original jurisdiction to determine a claim for

A-5579-16T2 4 attorney's fees and costs. DeBrango v. Summit Bancorp, 328 N.J. Super. 219,

230 (App. Div. 2000) (applying the frivolous litigation statute and R.P.C. 1.5).

We recognize that a trial court's award of counsel fees is disturbed only

upon a clear abuse of discretion, and in the rarest of circumstances. J.E.V. v.

K.V., 426 N.J. Super. 475, 492 (App. Div. 2012). Therefore, we accept the trial

court's calculation of defendant's reasonable fees, and its reduction on remand.

We consider only the additional impact on the remaining award of the two facts

that the trial court did not address. They are relevant factors in the award of

fees in a family action. See R. 5:3-5(c)(3) ("the reasonableness and good faith

of the positions advanced by the parties"); R. 5:3-5(c)(7) ("the results

obtained").

We are convinced that defendant filed his motion for relief from the PSA

with unclean hands. While complaining that plaintiff withheld the rise in her

income, defendant withheld the change in his income as well. What's worse,

defendant, through counsel, represented to the court that he experienced no

material change in income, thereby focusing the court's attention on plaintiff's

income and not his own. "The intentional misrepresentation of facts" is evidence

of bad faith. Borzillo v. Borzillo, 259 N.J. Super. 286, 294 (Ch. Div. 1992). On

the other hand, although both parties abused the litigation process, plaintiff was

A-5579-16T2 5 the more egregious offender, both in terms of the magnitude of the undisclosed

income, and the excessive litigation practices. We recognize that she largely

bears the responsibility for that excessive litigation, in that her unreimbursed

fees substantially exceed those incurred by defendant.

As for the results obtained, the consent order represented a partial victory

for defendant. Meshulam I, slip op. at 26. He dropped his claim for

reimbursement of alimony and child support. He also dropped his claim for

plaintiff to pay him child support. Yet, he obtained relief from his obligation to

pay child support to her. He also successfully defended against plaintiff's efforts

to disqualify his attorney and related requests. Id., slip op. at 26. We recognize

that had defendant been forthcoming about his income, he would still have been

entitled to some relief from the terms of the PSA going forward, as defendant

was no longer the principal earner. The parties had reached rough parity in

income.

Based on these facts, we conclude that further reduction in the award is

appropriate to account for defendant's lack of good faith, see R. 5:3-5(c)(3), and

the fact that results obtained constituted only partial success, see R. 5:3-5(c)(7).

The impact of these factors on the ultimate award is not easily quantified. We

A-5579-16T2 6 are guided by principles of fairness, viewing the record as a whole. We therefore

reduce the award of counsel fees to defendant to $7500.

The order of the trial court is so modified.

A-5579-16T2 7