Opinion
DOCKET NO. A-2123-11T3
04-24-2013
NANCY HINZ, f/k/a NANCY OIKONOMOU, Plaintiff-Respondent, v. KOSTAS OIKONOMOU, Defendant-Appellant.
Kostas Oikonomou, appellant pro se. Brian P. Latimer, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1529-94.
Kostas Oikonomou, appellant pro se.
Brian P. Latimer, attorney for respondent. PER CURIAM
Defendant Kostas Oikonomou appeals from the Family Part's November 14, 2011 post-judgment order denying his motion to enforce litigant's rights and granting plaintiff's cross-motion for counsel fees and costs. For the reasons that follow, we affirm.
I.
Plaintiff and defendant married in 1980 and divorced in 1995. They had one child, Melinda, born in 1984. Their divorce judgment incorporated a Property Settlement Agreement (PSA) dated December 12, 1994. In addition to child support, the PSA required defendant to pay for Melinda's college education.
A fictitious name is used to protect the privacy of the child. In 2011, a court in Indiana entered an order of protection against defendant requiring him to "stay away" from Melinda.
After the divorce, plaintiff and Melinda relocated to Minnesota, pursuant to a memorandum of understanding between the parties. Thereafter, disputes arose and defendant stopped paying child support. The parties resolved these differences by way of a March 6, 2003 consent order, which required defendant to pay plaintiff $41,886 in complete satisfaction of both his past and future child support obligations. In return, plaintiff agreed to accept responsibility for all of Melinda's college expenses, and that defendant's lump sum payment would result in Melinda's emancipation.
Over eight years later, defendant filed the subject motion to enforce litigant's rights, requesting that plaintiff pay back the $41,886, which he claimed she squandered in bad faith. He also requested that plaintiff and Melinda pay him compensatory and punitive damages for emotional distress, and that they submit to mental health evaluations. Plaintiff filed a cross-motion seeking attorney's fees and costs.
Defendant sought relief against Melinda even though she was never made a party to the action.
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The Family Part denied defendant's motion in its entirety and awarded plaintiff attorney's fees and costs in the amount of $2,062.50. On appeal, defendant contends that the trial court abused its discretion by dispensing with oral argument, by reaching its determinations without sufficient credible evidence in the record, and by failing to conduct a hearing in light of alleged irreconcilable credibility issues in the record.
II.
New Jersey has a strong public policy favoring the enforcement of PSAs. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). These agreements are approached with the presumption that they are valid and enforceable, and they will be enforced "if they are fair and equitable." Ibid. A court has the equitable authority to modify support obligations set forth in a PSA. Lepis v. Lepis, 83 N.J. 139, 149 (1980). However, only where circumstances arise where enforcement of the agreement becomes inequitable should an exception be made to the strict enforcement of the agreement's terms. Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.), certif. denied, 180 N.J. 354 (2004).
Rule 5:5-4 provides that "the court shall ordinarily grant requests for oral argument on substantive . . . motions." This provision has generally been interpreted to require oral argument "when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J.Super. 8, 14 (App. Div. 1998).
However, the Rule still permits a trial court to exercise its discretion to deny such requests, even in cases involving "substantive" issues. The discretion afforded by Rule 5:5-4(a) is designed to give the judge
the option of dispensing with oral argument . . . when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision. In short, it is the sole purpose of these rules to dispense with what is regarded as unnecessary or unproductive advocacy.See also Palombi v. Palombi, 414 N.J. Super. 274, 286-88 (App. Div. 2010) (trial court properly denied several motions requesting oral argument because each motion either failed to raise a "substantive" issue; failed to timely file opposition papers; or the parties failed to provide an adequate factual basis for the court to make a determination on the issues presented); Kozak v. Kozak, 280 N.J. Super. 272, 275 (Ch. Div. 1994) (denying oral argument where no basis existed to grant the relief sought by defendant), certif. denied, 151 N.J. 73 (1997).
[Fusco v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982).]
III.
We find no mistaken exercise of discretion or misapplication of the law in the trial court's finding that defendant was not entitled to any relief. Viewed broadly, the parties agreed to modify their obligations as set forth in their PSA by entering into a negotiated consent order, which contained trade-offs that were freely and fairly negotiated. Defendant makes no allegations of improprieties, fraud, overreaching, or coercion regarding the negotiation of the consent order. See Konzelman v. Konzelman, 158 N.J. 185, 203 (1999).
Although defendant's motion requested a refund of the sum he paid pursuant to the March 6, 2003 consent order, his certification stated that he sought to "enforce the Judgment for Divorce, specifically the provisions that obligate Father, Mother, and Daughter to cooperate in good faith to obtain, and pay for, a college education."
The $41,866 was not a pre-payment for college expenses, but rather, a settlement for the remainder of defendant's child support obligations, and satisfaction of defendant's obligation to pay for college expenses by having plaintiff assume that responsibility. In denying defendant's motion, the judge correctly observed that defendant was essentially asking for retroactive modification of child support, relief that is prohibited by statute. N.J.S.A. 2A:17-56.23(a)
The judge exercised sound discretion in dispensing with oral argument. Defendant's arguments and proofs advanced were facially deficient and could not cognizably support the relief sought. While defendant filed a motion to enforce litigant's rights, there was nothing left to enforce as the parties had already fulfilled their obligations under the consent order.
The provision of the PSA providing "that the child will have obtained maximum student loans and grants as may be available and applied her savings/earnings and that she shall communicate with the husband" became non-operative when plaintiff agreed in the consent order to shoulder all of Melinda's college expenses. Oral argument would not have affected this determination. Similarly, as no issues of material fact required resolution by the trial court, there was no basis for an evidentiary hearing. See Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988) (a hearing is not required, or even warranted, except where "necessary to resolve a genuine issue of material fact").
Finally, we address defendant's challenge to the court's ruling on counsel fees. In making such decisions, a court considers the nine factors enumerated in Rule 5:3-5(c) in the exercise of its discretion. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992) ("[u]nder the laws of New Jersey, the award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court"). Of particular consequence are whether the party seeking payment is in financial need, the ability of the other party to pay, and if litigation was initiated in good-faith. Id. at 545. "[A] reviewing court will disturb a trial court's award of counsel fees 'only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 444 (2001)).
We find no "clear abuse of discretion" in the trial court's decision to grant plaintiff's request for counsel fees. See Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). Defendant's motion was denied as having no basis in fact or law, and the record supported this conclusion. The court specifically found that defendant's motion "was meritless . . . and was filed in bad faith." Counsel fees were warranted based upon the finding of bad faith. We note further that plaintiff's counsel fees and costs exceeded $5,000 and the amount awarded was less than forty percent of that amount.
Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION