D.M.
v.
M.M.

This case is not covered by Casetext's citator
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONSep 25, 2014
DOCKET NO. A-0753-12T1 (N.J. Super. App. Div. Sep. 25, 2014)

DOCKET NO. A-0753-12T1 DOCKET NO. A-2157-12T1

09-25-2014

D.M., Plaintiff-Respondent/Cross-Appellant, v. M.M., Defendant-Appellant/Cross-Respondent.

M.M., appellant/cross-respondent pro se. Stolfe & Zeigler, attorneys for respondent/ cross-appellant (Abigale M. Stolfe, on the briefs).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Maven and Hoffman. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0580-10. M.M., appellant/cross-respondent pro se. Stolfe & Zeigler, attorneys for respondent/ cross-appellant (Abigale M. Stolfe, on the briefs). The opinion of the court is delivered by MAVEN, J.A.D.

These two appeals, which we have consolidated for purposes of this opinion, arise from post-judgment motions pertaining to the choice of elementary school for the parties' minor child and other co-parenting issues. According to their Property Settlement Agreement (PSA), the parties share joint legal custody of their daughter entitling both parents to joint decision-making on matters pertaining to her health, education and welfare. Defendant-father filed a motion to enforce litigant's rights after plaintiff-mother, the parent of primary residence (PPR), enrolled the child in a school in her community over defendant's objection. Defendant also sought recalculation of child support, as permitted under the PSA. Plaintiff filed a cross motion seeking enforcement of certain financial obligations and attorney's fees.

On appeal, defendant challenges certain provisions in the August 31, 2012 and December 14, 2012 orders, granting plaintiff her choice of school and attorney's fees, and recalculating child support using the sole parenting worksheet. In light of the record and applicable legal principles, we conclude the judge did not abuse her discretion by permitting plaintiff to enroll the child in elementary school and daycare in her community, and by awarding attorney's fees. Thus, we affirm the trial court's orders, except with respect to the recalculation of child support. Because the trial judge failed to assess the criteria for using the sole versus the shared parenting worksheet, we remand for a proper analysis as set forth in Appendix IX of the Court Rules, and for recalculation of child support.

I.

Plaintiff and defendant were married in October 2000. One daughter, G.M., was born of the marriage in June 2007. Plaintiff and defendant separated in January 2009 and were divorced in December 2010, incorporating a PSA into the Judgment of Divorce (JOD).

In the PSA, the parties agreed upon specific arrangements with respect to custody, child support, and counsel fees in the event of a breach of the agreement. As to custody, paragraph 3.1 of the PSA provided for joint legal custody "with [plaintiff] being the primary residential parent and [defendant] the parent of alternate residence [(PAR)]." All major decisions concerning the child's health, education and welfare were to be jointly shared. Paragraph 3.6 further requires the parties to

consult with each other with respect to the child's education. . . . All major decisions concerning the child's health, education, safety and welfare shall jointly be made. The parties shall make every reasonable effort to have all important decisionsaffecting the child made with the consent of both parents. . . .


The PSA also addressed the issue of child support, providing in paragraph 4.1 that, effective October 14, 2010, defendant shall pay child support of $100 per week, which was "recognized as an upward deviation from the child support guidelines in exchange for the mutual waiver of alimony contained herein." That provision further obligated defendant to pay work-related childcare expenses in the amount of $750 per month, but provided that if these costs significantly change, it may be a change of circumstances allowing for a recalculation.

Additionally, the parties agreed on the payment of costs in the event of default. The PSA provided if either party defaulted in the performance of any provision contained in agreement, and if the other party instituted an enforcement action, then the PSA required the defaulting party to "pay to the other party, the necessary and reasonable [c]ourt costs and attorney's fees incurred by the prevailing party in connection with such legal proceedings."

On July 31, 2012, defendant filed a motion to enforce litigant's rights alleging plaintiff violated paragraphs 3.1 and 3.6 of the PSA by failing to cooperate in deciding matters pertaining to G.M.'s education under their joint legal custody agreement. Defendant sought to have G.M. begin kindergarten at the G. Harold Antrim Elementary School (Antrim) in Point Pleasant Beach where he lives. He explained in his certification that "Antrim is one of the best elementary schools, not only in Ocean County, but also in New Jersey." Defendant attached evidence of Antrim's alleged excellence, including, among other things, Department of Education report cards from 2010 and 2011 and an "Excellence in Education Award" given to one of its eighth grade teachers. Defendant also sought to enroll G.M. in Antrim because her step-sisters attended the school, thus providing her with familial support and supervision. He further argued enrolling G.M. in Antrim's full-day kindergarten program, would reduce the amount of time she would spend in daycare and be more cost effective for him, who bears the cost.

Defendant contended plaintiff failed to cooperate with his suggestions to discuss G.M.'s school. According to defendant, when he suggested to plaintiff at the end of the school year that G.M. attend Antrim in the fall of 2012 for kindergarten, plaintiff informed him via text message in July 2012 that she had already enrolled G.M. in an unidentified school in Bayville, New Jersey. When defendant asked which school in Bayville, plaintiff responded via text, "[m]y attorney stated that [G.M.] will go to school wherever she and I live."

Defendant broached the subject several times to no response, thus prompting him to write plaintiff a July 9, 2012 letter threatening legal action if she continued to ignore his efforts to discuss G.M.'s education. When he wrote her to express his concern and request a discussion, she informed him that she had already enrolled G.M. in an elementary school in Bayville. Then defendant received a letter from plaintiff's attorney stating plaintiff had recently moved to Forked River and enrolled the child in an elementary school there. The letter further advised that because the school's kindergarten program was only a half-day, G.M. was enrolled in The Land of Oz daycare center, located across the street from the school, and which cost approximately thirty dollars per day. According to defendant, plaintiff had repeatedly violated the terms of the PSA by not keeping him abreast of important decisions regarding G.M.'s welfare, including the child's enrollment in various programs.

Defendant also sought a recalculation of child support in accordance with paragraph 4.1 of the PSA, which provided, in relevant part,

Upon the conclusion or modification of the daycare expenses or August 2012, whichever occurs first, - the child support shall be recalculated pursuant to the Child Support Guidelines without any deviation or modifications assumed from the terms of thisagreement and paid through the appropriate Probation Department[.]


Defendant submitted a 2012 Case Information Statement (CIS) and 2011 tax return reflecting an annual net income of $2279. After the divorce, defendant started a landscaping business for which he did not consistently receive a paycheck.

In response, plaintiff noted she disputed defendant's income at the time of their divorce. Paragraph 19.1 reads,

[t]he parties have agreed that the Wife has an income of approximately $36,000 per year gross. Husband's income is disputed, Husband is self-employed. At present, he represents a fair prospective imputed income would be $40,000 per year gross. Wife believes a fair imputed income for Husband would be $66,000 per year gross.


On August 16, 2012, plaintiff filed opposition to defendant's motion requesting that the court deny it in its entirety. In addition, plaintiff filed a cross-motion in which she requested that the court (1) modify the parties' existing parenting arrangement to ensure that defendant had parenting time alternate weekends Friday to Sunday and each Wednesday after school through 6:00 p.m.; (2) compel defendant to pay for childcare three months in advance; (3) require defendant to pay for child support consistent with the guidelines; and (4) award counsel fees in her favor.

Plaintiff acknowledged defendant's desire to have G.M. attend Antrim, but certified that Antrim was not a viable option because she could not afford to live in Point Pleasant Beach where the school was located. Plaintiff expressed concern that G.M. would be subjected to a forty-minute commute if she were enrolled in Antrim, despite defendant's proposal to transport her to and from that school during the week. Moreover, plaintiff noted that on days when defendant was not available to pick the child up from school, plaintiff would be forced to make "impromptu arrangements" to retrieve her.

As for the daycare provider, plaintiff explained she moved G.M. from The Learning Experience in Bayville to The Land of Oz in Forked River because defendant failed to make the necessary tuition payments. Plaintiff indicated she was open to alternative daycare programs, assuming defendant became obligated to pay the tuition three months in advance "with a replenishment six weeks prior to the depletion so the school [could] advise [her] with enough notice to obtain a [c]ourt [o]rder."

On August 31, 2012, the court held a hearing on the parties' motions. The court rendered an oral decision, which it memorialized in a written order issued that same day. The judge denied defendant's choice of school, and instead ordered that G.M. may attend school where plaintiff lived. The judge granted defendant's request to recalculate child support, but, found he had under represented his available income and cash flow. The judge, therefore, imputed income of $56,000 per year as "a reasonable imputation in light of [d]efendant's past work history and his ability to earn income with his Turfscience degree." Then, using the child support guidelines and the sole parenting worksheet, the judge calculated defendant's obligation to be $137 per week.

Turning to plaintiff's cross-motion, the court ordered defendant to continue his parenting time as provided in the PSA; granted plaintiff's request for payment of child care expenses three months in advance due to defendant's history of late payments; and, awarded plaintiff attorney's fees in the amount of $1000.

After the parties filed their respective Notices of Appeal from the court's August 31 order, plaintiff filed a motion to enforce litigant's rights seeking, among other things, a finding defendant failed to comply with the August 31, 2012 order to pay daycare expenses, and counsel fees for the enforcement motion. Defendant filed a cross-motion in which he sought, among other things, permission to bring G.M. to school-sponsored events if plaintiff chose not to do so, and recusal of the motion judge.

Following oral argument on December 14, 2012, the court issued an order finding defendant in violation of litigant's rights for his failure to pay daycare tuition per the August 2012 order. The court awarded plaintiff an additional $2000 in attorney's fees. Meanwhile, the judge ordered plaintiff to use her best efforts to take G.M. to school-sponsored events if they occur on her parenting time, and denied defendant's recusal request. The instant cross appeals followed.

Although the parties sought to challenge specific issues covered by the August 31 order, the judge limited its review, under Rule 2:9-1(a), to those issues deemed collateral to the appeal.
--------

II.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court[,]" New Jersey Division of Youth and Family Services v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." New Jersey Div. of Youth and Family Serv. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104; Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). However, the Family Part's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

We also consider whether the trial judge properly exercised reasonable discretion. "While the 'abuse of discretion standard defies precise definition,' we may find an abuse of discretion when a decision 'rest[s] on an impermissible basis' or was 'based upon a consideration of irrelevant or inappropriate factors.'" State v. Steele, 430 N.J. Super. 24, 34-35 (App. Div.) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citations and internal quotation marks omitted)), certif. granted, 214 N.J. 233 (2013).

III.

Defendant first contends the court erred in failing to find plaintiff in violation of litigant's rights for unilaterally choosing to enroll G.M. in a Forked River elementary school, despite his efforts to discuss Antrim as a possible educational opportunity. He contends the terms of the parties' PSA, paragraphs 3.1 and 3.6, make clear that they share joint legal custody of G.M., and that they must consult one another on major life decisions regarding the minor child.

Defendant suggests that plaintiff's efforts to enroll G.M. in Forked River Elementary were "secretive," and plaintiff intentionally changed her residence, cancelled the child's enrollment in Bayville, and enrolled her in Forked River "without any indication to [d]efendant[.]" Defendant points to the exchange of correspondence in July 2012 as evidence of plaintiff's lack of cooperation.

Although plaintiff does not address this argument on appeal, she responded to defendant's characterization of their communications both in her certification in support of her cross-motion and at the August 31, 2012 hearing. In her certification, plaintiff maintained that she advised defendant of G.M.'s school as soon as she secured a residence. Plaintiff additionally contended she previously notified defendant that it was her intention to enroll G.M. in the town in which they resided. At the hearing, plaintiff's counsel further argued "there's a level at which a parent of primary residence has to act and, when you receive no response other than 'no', well, the State requires you to enroll your child in school."

Considering the parties' positions, the court ruled:

As to the issue of cooperation and enforcing litigant's rights, has there been a violation of litigant's rights? I stand by what I had put in the tentative [decision]. I think [plaintiff's counsel's] point is well taken that there is a point wheresometimes . . . these things are in the settlement agreements and . . . they need to be abided by [sic], but the practical means of [ ] how they're actually enforced is that we have two people that are divorced. And by in and of its own, being divorced, that they had difficulties in communication and . . . that there may not be as direct communication as the defendant would have liked, but . . . I don't know that it was something that [ ] rises to the level of a violation of litigant's rights.


Rule
1:10-3, entitled "Relief to Litigant," provides, in relevant part, that "[n]otwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action." Before relief under the Rule can be afforded, however, "the court must be satisfied that the party had the capacity to comply with the order and was willfully contumacious." Pressler & Verniero, Current N.J. Court Rules, comment 4.3 on R. 1:10-3 (2014). See also P.T. v. M.S., 325 N.J. Super. 193, 218 (App. Div. 1999) (reversing order finding plaintiff in violation of litigant's rights due to a lack of evidence on the issue of willfulness).

It is clear that the parties', through the PSA, expressed their intent to share in the decision-making on major matters of importance as joint legal custodians of the child, notwithstanding their designations as PPR and PAR. The parties, nevertheless, have been unable to reach a mutual agreement regarding where G.M. will go to school. There is no evidence in the record that plaintiff did not have the means to communicate with defendant. In fact, she does not dispute that she exchanged letters, texts and email messages with him directly and through her attorney. Nevertheless, at most, the evidence of record demonstrates an inability of the parties to communicate effectively.

Defendant presents no evidence that plaintiff's enrollment of their daughter in school in Bayville, then Forked River, was in flagrant disregard of defendant's wishes. Nor does he establish that plaintiff willfully or unjustifiably made decisions regarding G.M.'s schooling without any consideration for defendant's position. In fact, plaintiff certified that she enrolled G.M. in Forked River not out of spite, but rather because she could not afford to live in Point Pleasant Beach where Antrim is located. Notwithstanding the parties' expressed intent concerning decisions regarding G.M.'s welfare, as reflected in the PSA, we conclude the judge's finding that plaintiff's conduct did not rise to the level of violating defendant's rights under the PSA regarding the decision to enroll G.M. in the Forked River school district, was supported by substantial credible evidence in the record.

The judge recognized the intent of both parties to cooperate in joint decision-making, and the practical difficulties in doing so. Considering the record on this issue, we conclude the judge did not abuse her discretion when she declined to find plaintiff in violation of paragraphs 3.1 and 3.6 of the PSA.

Next, defendant asserts the court did not properly account for G.M.'s best interests when ordering her enrollment at both Forked River Elementary School and The Land of Oz daycare center. He contends the court placed too much weight on the length of the commute between G.M.'s home and Antrim, and on the importance of keeping G.M. within plaintiff's community. As for daycare, defendant argues the court did not consider defendant's less expensive alternative, instead agreeing with plaintiff in order to avoid triggering a "change of circumstances which would have necessitated the parties reallocating the cost of child care between them in proportion to their incomes."

"It is axiomatic that the court should seek to advance the best interests of the child[ren] where [their] parents are unable to agree on the course to be followed." Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978). "When both parents have a fundamental right to care and nurture their children and neither has a preeminent right over the other . . . the sole benchmark is the best interest of the child." Sacharow v. Sacharow, 177 N.J. 62, 79-80 (2003). "There are few reported cases of judicial relocation of a child's school from competing school districts." Levine v. Levine, 322 N.J. Super. 558, 565 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000).

In Levine, we addressed a conflict between two divorced parents over a choice in public schools. The parents shared physical and legal custody of the child. Id. at 559. Following a hearing at which the court heard divergent testimony from two psychological experts, Id. at 561-63, the judge ordered the transfer of the child to a new school district. On appeal, we found the trial court had abused its discretion in rendering its decision because the court gave too much weight to the empirical comparisons of the schools. Id. at 565. We opined:

In the context of the best interests of a child, any evaluation of a school district is inherently subjective. Just as a student cannot be summed up by IQ, verbal skills, or mathematical aptitude, a school is more than its student-teacher ratio or State ranking. The age of its buildings, the number of its computers or books in its library and the size of its gymnasium are not determinative of the best interest of an individual child during his or her school years. Equally, if not more important, are peer relationships, the continuity of friends and an emotional attachment to school and community that will hopefully stimulate intelligence and growth to expand opportunity.

[Id. at 567.]


Here, defendant argued below, and again on appeal, that G.M. should attend Antrim primarily for its proven excellence. The judge ruled,

taking [G.M.'s] best interests into account, I think that it is in her best interest to go to school in the municipality where she is primarily residing; that I think that the idea that she would be going to school in Point Pleasant and, as a five-year-old, taking this trip up from Forked River to Point Pleasant, which under no circumstances can I think of any way that that isn't an onerous car trip back and forth on a daily basis for a five-year-old child, I don't think that's good for her; and that she be in a day care that's close to her mother's residence in Forked River just from a logistical standpoint that it's easier for her to be in a day care that's close . . .
. . . .
I just think that, from the standpoint of . . . where [G.M.] should be and where her community mainly should be, where she should . . . go to daycare, she will develop relationships with children in the community. . . . [T]hat's where she's going to be developing her friendships[.]
So, I think that she's going to go to school in Forked River, not in Point Pleasant. I don't think it's in her best interest for her to be going against the grain of where she lives most of the time to go to school in Point Pleasant.


We conclude the trial judge was well within her authority, as parens patrie, to make a determination on where G.M. should begin her elementary school education. Here, the parties' inability to communicate effectively affected their child's best interest by interfering with registration for school. The judge's decision to intervene and determine the child should be enrolled where plaintiff resides is grounded in sound reasoning in light of the evidence, and giving due regard to plaintiff's designation as the PPR and defendant's parenting time schedule. In keeping with Levine's teachings, the judge did not base her decision on a comparison of the quality of the Antrim and Forked River schools but, rather, on G.M.'s best interests. Thus, we defer to the trial judge's reasonable exercise of discretion, and conclude her findings and legal conclusions were not "so wide of the mark that a mistake must have been made." New Jersey Div. of Youth & Family Serv. v. M.M., 189 N.J. 261, 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 68 (App. Div. 1989).

IV.

We now turn to defendant's child support claim. Defendant argues the court erred by using a sole parenting worksheet, rather than the shared parenting worksheet, as he requested. He also contends the court erred by imputing $56,00 0 income to him. Finally, defendant claims he should not have been obligated to pay all of the work-related day care expenses. We will consider each claim in turn.

A. Sole Parenting Worksheet

Defendant argues that he cares for G.M. 130 nights out of the year, during which he provides her with food, clothing, and toys. He contends, therefore, the court should have used the shared parenting worksheet when calculating child support.

The Family Part must use Appendix IX of the Court Rules when considering "an application to establish or modify child support." R. 5:6A. Paragraph 14(c) of Appendix IX provides specific criteria that "must be met before the shared-parenting worksheet and instructions are used to calculate a shared-parenting award." Such criteria include a determination that the parent of alternate residence "has the child for the substantial equivalent of two or more overnights per week over a year or more" and that the parent of alternate residence has "separate living accommodations for the child[.]"

Here, the trial judge neither explained her reason for using the sole parenting worksheet, nor sought to assess whether the criteria for using the shared-parenting worksheet were present. The judge merely stated she had the discretion to use the sole parenting worksheet. The judge's failure to state her reasons for this decision is cause for a remand. See R. 1:7-4a; Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002) (remanding a child support order where Family Part did not accompany its decision with findings of fact and conclusions of law). Moreover, the judge did not assess the requisite criteria in making her determination. We, therefore, are constrained to remand for reconsideration of the appropriate worksheet to be utilized in this case, pursuant to Appendix IX of the Court Rules.

B. Imputed Income

Defendant further contends the court's decision to impute $56,000 income to him was arbitrary. He argues that before imputing income, the court should have considered (1) what his employment status and earning capacity would have been if the family had remained intact, (2) the reason and intent for the voluntary underemployment or unemployment, (3) the availability of other assets that may be used to pay support, and (4) [G.M.'s] age and the availability of child-care alternatives.

This court reviews a trial court's decision to impute income under an abuse of discretion standard. Ibrahim v. Aziz, 402 N.J. Super. 205, 210 (App. Div. 2008). The decision "to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004). "Competent evidence includes data on prevailing wages from sources subject to judicial notice." Id. at 475.

A court may impute income to a party whose income cannot be determined, Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002), or to a party who "has voluntarily become underemployed or unemployed without just cause." Ibrahim, supra, 402 N.J. Super. at 210-11. Further, "[i]mputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey, supra, 373 N.J. Super. at 474.

Reviewing the evidence in this case under these standards, we conclude defendant did not establish his earning capacity with credible evidence. As in Tash, defendant failed to produce adequate financial information, thus forcing the court to generate a figure reflecting defendant's "work history and his ability to earn income with his Turfscience degree." Although defendant submitted his CIS and tax returns, the documents did not assist the court in determining his income. The court's August 31, 2012 order makes this clear:

Defendant supplies his CIS and personal income tax returns, and purports that he has next to nothing in expenses, and only earned $2500 last year. The tax returns for the business were not supplied, and the Court cannot determine the possible cash flowavailable to Defendant by review of the business federal tax returns and all schedules. The Court believes that Defendant is underreporting his available income and/or cash flow to the Court.

Similarly, at oral argument, the court explained:
[H]e's got a business he just started, he's earning $2500 a year, and that I'm supposed to believe that there is - - he's building a house, he's got no other - - there's nothing submitted as far as where I can see cash flow . . . I'm just finding a little bit preposterous for me to be - - have this presented to me that this is what he's making and I'm supposed to consider this for child support purposes.


Although the trial court did not consider whether defendant was voluntarily underemployed or unemployed, that is not the only basis for imputing income to a party. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2589 (2014). The court exercised its discretion in producing a figure that most closely approximated defendant's earning capacity, neither accepting plaintiff's suggested income for defendant of over $80,000, finding that it "was a bit of a stretch from the standpoint of his education and what he was actually doing," nor defendant's suggestion of $35,000, which he claimed the average pesticide applicator earns.

We are satisfied the court appropriately weighed the income factors in reaching her decision and discern no basis to disturb that result. Nevertheless, inasmuch as this case is being remanded for recalculation of child support to consider the utilization of the appropriate worksheet, we leave to the court's discretion, at that time, whether to permit financial discovery and the submission of an updated CIS from both parties.

C. Child Care Expenses

Defendant argues he should not be obligated, per the terms of the PSA, to continue to pay both child support and all of the after school daycare expenses. Under the terms of the PSA, defendant was obligated to pay "present work-related expenses" in the amount of $750 per month. Given our decision to remand this matter for recalculation of child support, we deem it appropriate for the court to reconsider this issue, in light of the financial positions of the parties, the child's age and grade in school, and any other factors the court deems relevant to this inquiry.

V.

Defendant next challenges the court's August 31, 2012 award of counsel fees to plaintiff in the amount of $1000, arguing the court improperly awarded counsel fees on plaintiff's Order to Show Cause, which she withdrew prior to oral argument. In his reply brief, defendant also contends that the court should not have awarded plaintiff counsel fees because (1) he declared bankruptcy in 2011, and (2) plaintiff's own behavior increased her attorney's fees. Because defendant provides no support in the record for his contentions, or evidence proving his declaration of bankruptcy, we conclude these belatedly raised issues are without sufficient merit to warrant mention in a written opinion. R. 2:11-3(e)(1)(E).

The court's order awarding plaintiff attorney's fees indicated that it considered several factors under Rule 5:3-5, including the parties' ability to pay their own fees and the extent of the fees. The court further stated that it was "suspect of [d]efendant's purported financial condition, but [could not] find that [d]efendant [was] in a significantly better financial position than [p]laintiff based upon the application presented." However, the judge reasoned that because defendant forced plaintiff to bring an enforcement motion due to his repeated failure to pay daycare tuition, defendant was obligated to contribute towards plaintiff's counsel fees.

During the December hearing, the judge explained and supplemented the reasons for her earlier decision:

Under the rule there are factors of financial ability to pay, the difference between the parties, prior awards of counsel fees, the issue of the success on themerits. All of these things under [] Rule 5:3-5 has to be considered so that I can make a determination whether this is actually warranted or not and what I did was go through her certification of services and cull through what I believe . . . I didn't think it was appropriate to hit you for counsel fees for the appeal because that's above and beyond what we're trying to do here. I think that litigant's rights and actually I could have awarded this under Rule 1:10-3 as a willful violation of an order and I wouldn't even have to go through the factors and in fact I might just say that on the record that I am and I went through her certification of services and what I thought was an appropriate amount to assess as she was successful on as according to my tentative decision the litigant's rights order and what I thought could be allocated as a reasonable amount to bring that motion, so that's my thought process on why I did what I did and I am adding in that it is also under 1:10-3[.]


The assessment of counsel fees lies within the sound discretion of the trial court, "and will not be reversed except upon a showing of an abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). An abuse of discretion occurs "when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg, supra, 171 N.J. at 571 (internal quotation marks omitted).

An award of counsel fees is permitted "to any party accorded relief following the filing of a motion in aid of litigant's rights, R. 1:10-3, or to any party in a divorce action, R. 5:3-5(c), subject to the provisions of Rule 4:42-9." Barr, supra, 418 N.J. Super. at 46. While Rule 1:10-3 does not delineate specific factors to consider when awarding counsel fees, Rule 5:3-5(c) does. Thus, to determine whether and to what extent a counsel fee award is appropriate under the latter Rule, a 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 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).]

Importantly, "all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5a." R. 4:42-9.

We are satisfied the judge considered the factors under R. 5:3-5c. The court considered the financial positions of the parties and found the application reasonable given that defendant had repeatedly failed to timely pay the daycare costs, resulting in possible expulsion of their daughter from daycare. The court also reviewed the attorney's certification and differentiated the services rendered to those applicable to the motion. The court explained that because such other issues as G.M.'s schooling needed further clarification, it was limiting its order to $1000 dollars, which specifically went to plaintiff's meritorious application regarding day care costs. The judge supplemented her reasons for award attorney's fees during the December hearing to include Rule 1:10-3 due to the enforcement of litigant's rights. Applying the foregoing, we conclude the court's award of $1000 in attorney's fees did not constitute an abuse of discretion.

VI.

Finally, the remaining issues raised by defendant, and those presented in plaintiff's cross appeal, which we have not specifically addressed in this opinion, are without sufficient merit to warrant mention in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, vacated and remanded in part, for recalculation of child support consistent with this opinion. We do not retain jurisdiction.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


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