NOT FOR PUBLICATION WITHOUT THE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-1885-17T3
F.N.,
Plaintiff-Respondent,
v.
A.S.,
Defendant-Appellant.
___________________________
Submitted December 18, 2018 – Decided January 17, 2019
Before Judges Hoffman and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FM-09-0596-17.
A.S., appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant A.S. appeals from a portion of a final judgment of divorce
(FJD) awarding plaintiff F.N. $12,432.56 in counsel fees. We affirm.
The parties were married in May 2012, but only lived together for
approximately two months due to allegations of domestic violence. No children
were born of the marriage, and the parties acquired no assets or debts that were
subject to equitable distribution. In July 2015, plaintiff was involved in a serious
vehicular accident rendering him comatose. Due to his incapacity, a prior judge
appointed plaintiff's brother, A.A., as his legal guardian. 1 A.A. filed a complaint
for divorce on behalf of plaintiff in September 2016. By that time, the parties
had been separated for over four years.
Although both parties were represented by counsel, defendant did not
provide discovery or participate in the pre-trial proceedings, and she failed to
appear for trial on October 4, 2017. The trial judge duly suppressed defendant's
answer and counterclaim that day and entered default against her. In order to
provide proper notice to defendant as required by Rule 5:5-10, the trial judge
scheduled a default hearing for November 15, 2017. 2
1
Plaintiff's brother filed a letter of non-participation relative to this appeal.
2
In relevant part, Rule 5:5-10 provides:
In those cases where equitable distribution, alimony,
child support and other relief are sought and a default
has been entered, the plaintiff shall file and serve on the
defaulting party, in accordance with R[ule] 1:5-2, a
A-1885-17T3
2
Defendant appeared at the default hearing and her attorney participated
telephonically. She asked the trial judge for permission to proceed as a self-
represented litigant and her attorney asked to be relieved as her counsel because
of her lack of cooperation in these proceedings. Both applications were granted.
In her oral decision relative to the issue of counsel fees, the trial judge
considered the factors under Rule 5:3-5(c): (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. The amount sought
by plaintiff for counsel fees was $18,000.
Notice of Proposed Final Judgment ("Notice"), not less
than [twenty] days prior to the hearing date. The Notice
shall include the proposed trial date, a statement of the
value of each asset and the amount of each debt sought
to be distributed and a proposal for distribution, [and] a
statement as to whether plaintiff is seeking alimony
....
A-1885-17T3
3
The judge determined that the "facts in the case are quite egregious[,]"
because the parties resided together for less than two months, defendant failed
to comply with discovery for over a year, and she did not file written opposition
to plaintiff's notice of proposed final judgment. Specifically, the trial judge
noted that plaintiff has been comatose for two years, and despite the efforts of
an early settlement panel and counsel, no resolution was reached,
notwithstanding the limited issues in this short-term marriage. The judge found
the results "favorable to plaintiff" as to alimony and equitable distribution, and
that defendant asserted a right to these claims even though "not a scintilla of
proof" was presented by her. At the first case management conference, the judge
recalled urging a resolution. Additionally, the trial judge considered the hourly
rate of $395 charged by plaintiff's counsel, and found same to be reasonable in
light of her thirty-two years of legal experience.
The trial judge determined that defendant's litigation conduct was
unreasonable, at times not advanced in good faith, and caused plaintiff to incur
fees unnecessarily because defendant took "a very unreasonable position," and
failed to assist her attorney in resolving the matter. On appeal, defendant argues
that the trial judge abused her discretion because the award of counsel fees
violates defendant's constitutional rights, and the court's factual findings do no t
A-1885-17T3
4
comport with N.J.S.A. 2A:34-23 and Rule 5:3-5(c). We disagree and affirm the
November 15, 2017 FJD for the reasons stated in the trial judge's well -reasoned
oral opinion. We offer the following brief comments.
The decision to award counsel fees "rests in the discretion of the trial
court," Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007) (citing R.
5:3-5(c)), and will be disturbed "only on the 'rarest occasion,' and then only
because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298,
317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
In determining whether a judge exercised reasonable discretion, we consider
whether the "decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" Flagg
v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez
v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
With respect to a court's factual findings, reversal is warranted only when
those findings are "so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice." Allstate Ins. Co. v. Northfield Med. Ctr., PC, 228 N.J. 596, 619
(2017) (quoting Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015)).
However, a court's "interpretation of the law and the legal consequences that
A-1885-17T3
5
flow from established facts are not entitled to any special deference."
Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Defendant argues that the award of counsel fees also violates N.J.S.A.
2A:34-23, which provides:
The court may order one party to pay . . . [for the] legal
services when the respective financial circumstances of
the parties make the award reasonable and just. In
considering an application, the court shall review the
financial capacity of each party to conduct the litigation
and the criteria for award of counsel fees that are then
pertinent as set forth by court rule . . . . and shall
consider the factors set forth in the court rule on counsel
fees, the financial circumstances of the parties, and the
good or bad faith of either party.
[N.J.S.A. 2A:34-23 (emphasis added).]
The judge stated the support for her decision to award counsel fees, and
that it was not necessary for her to "specifically enumerat[e] every factor."
Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div. 2013). Saliently, the judge
duly considered that defendant did not contribute to plaintiff's exorbitant
medical expenses and she has no obligation to do so in the future when
considering the counsel fee award.
We now turn our focus to the bad faith aspect of this case. Defendant
claims there was no "bad faith" in this case on her part, and that she only earns
four dollars per hour, creating a financial hardship for her to pay the award. In
A-1885-17T3
6
contrast, plaintiff has not earned anything since his catastrophic accident and he
remains incapacitated.
For purposes of awarding counsel fees, bad faith relates to the party's
conduct during the litigation. Mani v. Mani, 183 N.J. 70, 95 (2005) (citing Yueh
v. Yueh, 329 N.J. Super. 447, 460-61 (App. Div. 2000)). The purpose of an
award of fees against a bad faith litigant "is to protect the innocent party from
unnecessary costs . . . ." Yueh, 329 N.J. Super. at 461 (citing Kelly v. Kelly,
262 N.J. Super. 303, 307 (Ch. Div. 1992)).
As to the court's finding that defendant acted in bad faith, the record
confirms that she was uncooperative with her attorney by failing to provide him
with answers to interrogatories and discovery responses despite being granted
an extension of time, and she failed to appear for the October 2017 trial date.
Indeed, her counsel stated on the record at the hearing that "it's been rough since
day one with her." Prior to the trial date, defendant's former counsel asked
plaintiff's counsel to prepare a property settlement agreement and she obliged.
Defendant refused to sign it. At the hearing, plaintiff's counsel stated that the
"full" property settlement agreement she prepared "basically" stated the terms
the court ordered at the final hearing. Defendant blamed her absence from trial
on her purported "depression" and "back strain," yet she never provided
A-1885-17T3
7
evidence of these conditions to the trial judge. The judge properly found, "that
the time to present these issues [was] during discovery." She admonished
defendant for "wasting everyone's time." Further, the judge found that
defendant did not incur any expenses for plaintiff's medical care because nothing
was listed in defendant's matrimonial case information statement as to this issue,
and no such evidence was presented at the default hearing.
As part of her appellate appendix, defendant submitted unauthenticated
medical records from Care Point Health dated August 22, 2017 stating a
diagnosis of "strain of muscle, fascia and tendon of lower back." The records
also indicate she was "released from care" and was authorized to "return to
regular duty on 9/15/2017," which was three weeks prior to the October 4 trial
date. This matter was pending for fourteen months, thus providing defendant
with ample opportunity to present her health issues and medical records to the
court. Therefore, it is inappropriate for this court to consider defendant's
argument or her medical records on appeal when same were not submitted to the
trial judge.3
3
R. 2:5-4 (a). Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 2:4-
5(a)(2019) ("It is, of course, clear that in their review the appellate courts will
not ordinarily consider evidentiary material which is not in the record below by
way of adduced proof, judicially noticeable facts, stipulation, admission or
reordered proffer to excluded evidence.").
A-1885-17T3
8
Further, the trial judge made a credibility finding that defendant was not
trustworthy, and did not "take [her] on [her] word." As noted by the judge,
defendant should have presented her medical issues during the discovery
process, but she was non-compliant with discovery orders, thus defeating her
own argument. No adjournment request of the trial date was made, and
defendant did not respond to several telephone calls from her attorney seeking
to confirm her whereabouts on the day of trial. The judge's Rule 5:3-5(c)
analysis supports the award of approximately two-thirds of the plaintiff's
requested counsel fee, and is neither arbitrary nor manifestly unreasonable.
Defendant's claim that the trial judge failed to conduct a proper analysis under
N.J.S.A. 2A:34-23 is equally without merit.
To the extent we have not directly addressed the balance of defendant's
arguments, we find them to lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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9