Natalya Utlik v. George Utlik

• Court: New Jersey Superior Court Appellate Division
• Decided: February 16, 2024
• Docket: A-0935-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0935-22

NATALYA UTLIK,

Plaintiff-Respondent,

v.

GEORGE UTLIK,

Defendant-Appellant. _______________________

Argued January 30, 2024 – Decided February 16, 2024

Before Judges Smith and Perez Friscia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-0419-13.

Matheu D. Nunn argued the cause for appellant (Einhorn, Barbarito, Frost & Botwinick, PC, attorneys; Matheu D. Nunn, Jessie M. Mills and Emily Zurich Deyring, on the briefs).

Matthew Blake Lun argued the cause for respondent (Law Office of Matthew Blake Lun; Francesca Madeline O'Cathain of counsel and on the brief, Amanda M. Yu, on the brief). PER CURIAM

The parties married in 2007, and Angelina, their only child, was born in

2011. The final judgment of divorce (FJOD) was entered on February 28, 2013,

and it incorporated the parties' property settlement agreement (PSA). When

Angelina was born, the parties resided together at defendant's parents' home in

Millstone. Shortly thereafter, they rented an apartment in East Brunswick.

Upon the parties' separation, defendant, the parent of primary residence, and

Angelina returned to live with defendant's parents in Millstone. Under the PSA,

the parties shared equal fifty-fifty parenting time.

After the divorce, the parties co-parented for several years without

litigation. In 2017, plaintiff began to suspect defendant had unilaterally moved

to New York City, where he worked as an attorney, and that Angelina remained

in Millstone with her grandparents. Plaintiff's suspicions were aroused by

comments made by Angelina regarding how little time she spent with defendant,

only seeing him on weekends. In September 2018, plaintiff retained a private

investigative service, Alpha Group Investigations, to ascertain whether

defendant was residing in Millstone during his parenting time. Investigators

determined defendant was leasing a New York City apartment and observed him

A-0935-22 2 there on nine mornings out of sixteen total surveillance days during his parenting

time.

Plaintiff emailed defendant in April 2019, regarding his time spent in

NYC during his parenting time, and suggested they both relocate closer to NYC.

Plaintiff informed him she was relocating to Fanwood, and suggested they enroll

Angelina in a Fanwood elementary school. Defendant claimed he leased an

apartment closer to his employment to utilize when he was not exercising

parenting time. Plaintiff eventually moved to Fanwood and applied to enroll

Angelina in a Fanwood elementary school. She also notified defendant that she

sought a modification of their parenting schedule to have Angelina live with her

Monday through Friday and every other weekend.

In May 2019, plaintiff moved to: modify the custody and parenting time

set forth in the PSA; be designated as parent of primary residence; and reduce

defendant's parenting time to every other weekend. Defendant cross-moved in

June, seeking various forms of relief, including but not limited to: denial of

plaintiff's motion; sole legal custody of Angelina; a reduction in plaintiff's

parenting time to every other weekend; the continued enrollment of Angelina in

Marlboro Preparatory Academy; and an order to enroll Angelina in therapy.

A-0935-22 3 On July 12, 2019, the motion court ordered a plenary hearing on the

parties' applications for modification of custody and parenting time. The court

also ordered the parties to continue parenting time in accordance with the PSA.

After a flurry of pre-trial motions by the parties, they ultimately settled on

December 13, 2021, resolving all outstanding issues except for counsel fees and

the division of certain costs related to Angelina. The parties agreed to submit

these remaining issues to the trial court via certification. Pursuant to the

settlement terms, the parties filed their moving papers in May 2022. The trial

court heard argument on October 5, 2022.

On October 12, 2022, the court entered an order denying without prejudice

both parties' requests for counsel fees and litigation costs. The court made

findings, including: defendant failed to meet his burden for an award of counsel

fees; defendant had the ability to pay his legal fees; each party would have

trouble paying the other's legal fees; and plaintiff did not act in bad faith.

On appeal, defendant argues that the trial court misapplied the law when

it issued its order denying him counsel fees. Defendant argues the trial court

failed to conduct an adequate analysis of the relevant factors because it: placed

disproportionate weight on its determination there was no bad faith; erred in

finding there was no bad faith; and did not address the degree to which fees were

A-0935-22 4 incurred to enforce existing orders. Defendant further argues the trial court's

decision is unsupported by substantial credible evidence in the record.

"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." Satz v.

Satz, 476 N.J. Super. 536, 554 (App. Div. 2023) (quoting Barr v. Barr, 418 N.J.

Super. 18, 46 (App. Div 2011)). "An abuse of discretion occurs when a trial

court makes 'findings inconsistent with or unsupported by competent evidence,'

utilizes 'irrelevant or inappropriate factors,' or 'fail[s] to consider controlling

legal principles.'" Steele v. Steele, 467 N.J. Super. 414, 444 (App. Div. 2021)

(alteration in original) (quoting Elrom v. Elrom, 439 N.J. Super. 424, 434 (App.

Div. 2015)). A trial court's failure to consider the appropriate factors, make the

required findings, and state its conclusions of law constitutes a clear abuse of

discretion. See Saffos v. Avaya Inc., 419 N.J. Super. 244, 270-71 (App. Div.

2011); R. 1:7-4(a).

When evaluating the appropriateness of a fee award, the trial court must

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 . . . ; (4) the extent of the fees incurred by both parties; (5) any fees previously

A-0935-22 5 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.

[Satz, 476 N.J. Super. at 554 (quoting R. 5:3-5(c)).]

In its written opinion, the trial court addressed each relevant factor under

Rule 5:3-5(c). The court first considered Rule 5:3-5(c)(1), the financial

circumstances of the parties. The court made findings based on the evidence in

the record, including: the parties' separation of their income; plaintiff's sales

executive income of $106,378 per year; defendant's senior in-house counsel

income of $190,000 per year plus an annual bonus; plaintiff's outstanding

private debt of $58,041 to her fiancé; and plaintiff's outstanding student loan

debt of $39,500.

Rule 5:3-5(c)(2) requires the court to consider the ability of the parties to

pay their own fees or to contribute to the fees of the other party. The trial court

found plaintiff had paid approximately $188,000 in fees and costs, while

defendant paid $176,845.97. The court next found the parties would have

difficulty contributing to the other's legal fees. The trial court adequately

considered this factor.

A-0935-22 6 Rule 5:3-5(c)(3) requires the court to consider the reasonableness and

good faith of the positions advanced by the parties. The court considered

defendant's arguments, among them that plaintiff: acted in bad faith by

misrepresenting certain facts regarding her relocation to Fanwood; needlessly

prolonged the litigation; and refused to mediate or engage in settlement

negotiations. The court rejected defendant's claims, finding the litigation was

prolonged due to other factors, including: the COVID-19 pandemic; a lengthy

discovery period, including depositions in February 2020 and May 2021;

numerous mediation and settlement conferences; and the retention of best

interest experts.

The court's conclusion that plaintiff did not act in bad faith is supported

by the record. Plaintiff had a basis in fact to file her motion given the findings

by Alpha Group concerning defendant's time spent in New York during his

parenting time. While defendant argues plaintiff's bad faith is established by

her admission that defendant resided in Millstone, we note plaintiff

acknowledged defendant's Millstone residency in December 2021, long after her

initial 2019 motion, and after defendant cancelled his NYC lease.

On this record, we need discuss factors Rule 5:3-5 (c)(4), (c)(5), and (c)(6)

only briefly. The trial court addressed subparagraph (c)(4) by acknowledging

A-0935-22 7 the fees incurred by each party, and noting no fees were previously awarded by

the court, therefore subparagraph (c)(5) is not relevant. As to subparagraph

(c)(6), the court considered the amount of fees each party had previously paid

to their attorneys under Rule 5:3-5 (c)(2).

The court turned to Rule 5:3-5 (c)(7), and considered the results obtained.

The court found the parties negotiated a consent order prior to trial, and that

plaintiff agreed to a twenty-mile geographical proximity between the parties'

residences and Angelina's therapist. The court found defendant conceded

certain issues, including: the contingent allocation of certain parenting time;

Angelina's attendance at the Hun School; and use of a parenting coordinator.

We are unpersuaded by defendant's argument that the court wrongly

attributed equal weight to the parties' results because the consent order reflected

little of plaintiff's initial requested relief. We observe defendant also failed to

achieve much of the relief he sought in his cross-motion. We conclude the trial

court appropriately considered credible evidence in the record and found each

party achieved some measure of relief sought.

Finally, Rule 5:3-5 (c)(8) requires the trial court to consider the degree to

which the parties incurred fees to enforce existing orders or compel discovery.

A-0935-22 8 Defendant contends plaintiff violated the PSA and the final consent order and

argues the court failed to consider plaintiff's violation.

The court noted each party claimed the other was violating the PSA:

Plaintiff further alleges that [d]efendant failed to comply with numerous provisions about joint legal custody, Angelina's health insurance coverage, and co- parenting communication of the [PSA] including paragraphs 3.1, 3.2, 3.3, 3.11, 3.12, 3.14, 7.3, and 7.5. On the other hand, [d]efendant makes similar contentions regarding [p]laintiff's noncompliance with the agreed upon [PSA].

The trial court properly considered the extent to which legal expenses were

incurred to enforce orders, and it concluded that neither side warranted relief.

We comment briefly on defendant's contention during argument that the

trial court's written findings were insufficient, thus warranting remand.

Although the court's Rule 5:5-3(c) analysis could have hewn more closely to the

facts in the record, we conclude its written statement of reasons was adequate

and supported by the record evidence, sufficient to meet the Rule 1:7-4 standard.

We therefore discern no basis to disturb the court's order.

Affirmed.

A-0935-22 9