HUGO SANTOS VS. PAULA LINHARES (FM-20-1700-16, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1178-17T1

HUGO SANTOS,

Plaintiff-Appellant,

v.

PAULA LINHARES,

Defendant-Respondent.
________________________________

Argued October 30, 2018 – Decided November 19, 2018

Before Judges Gilson and Natali.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-1700-16.

Mario Apuzzo argued the cause for appellant.

Charles F. Vuotto, Jr. argued the cause for respondent
(Starr, Gern, Davison & Rubin, PC, attorneys; Charles
F. Vuotto, Jr., of counsel and on the brief).

PER CURIAM
 After three days of trial in this contentious matrimonial litigation, the

parties entered into a consent final Judgment of Divorce (JOD), which

incorporated a Marital Settlement Agreement (MSA). The JOD resolved all

issues between the parties except the amount of counsel fees, if any, that plaintiff

Hugo Santos was obligated to pay defendant Paula Linhares, and the allocation

of costs for the parties' joint accounting experts and mediator.

Pursuant to the JOD, the parties agreed that the court would resolve the

outstanding disputes by considering the certifications of counsel and the part ies'

briefs. After evaluating those submissions, Judge Lisa F. Chrystal issued a

September 28, 2017 order and comprehensive written opinion granting

defendant's fee application in the amount of $72,514.09 and directing plaintiff

to pay 60% of the experts' and mediator's fees with defendant bearing

responsibility for the remaining 40%. Plaintiff appeals the September 28, 2017

order. We affirm.

In her written opinion, Judge Chrystal considered the factors under Rule

5:3-5(c).1 In considering the financial circumstances of the parties, the court

1
The Rule 5:3-5(c) factors are: "(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

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noted that plaintiff's trial testimony regarding his salary "was not always

credible" and his business "always had significantly more value than [he]

admitted." The court also considered the parties' disparate income and assets

and concluded that plaintiff had the greater ability to pay a fee award.

The court determined that plaintiff's litigation conduct was unreasonable,

at times not advanced in good faith, and caused defendant to incur fees

unnecessarily. Specifically, the court noted that during the litigation, plaintiff

misrepresented his income and the value of his company. In addition, the court

considered the amount of fees incurred by the parties for their present and former

counsel and acknowledged it had previously denied defendant's request for

attorney's fees.

As to the "degree to which fees were incurred to enforce existing orders

or to compel discovery," the court explained that defendant was forced to file a

motion to enforce plaintiff's court-ordered pendente lite support obligations.

Finally, the court stated that plaintiff failed to comply with at least one other

court order and submit required documents to facilitate settlement.

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."
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 On appeal, plaintiff argues that the court abused its discretion because the

award of counsel fees and allocation of expert costs were manifestly

unreasonable, and the court's factual findings were contrary to the evidence. We

disagree and affirm the September 28, 2017 order for the reasons stated in Judge

Chrystal's thorough written decision. We offer only 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 court 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

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of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484

(1974) (internal citation omitted). However, a court's "interpretation of the law

and the legal consequences that flow from established facts are not entitled to

any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).

Substantively, a Family Part's counsel fee award is governed by Rule 5:3-

5(c). See Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008) ("Rule

4:42-9(a)(1) authorizes the award of counsel fees in a family action on a final

determination pursuant to R[ule] 5:3-5(c)."). The court must discuss the support

for its decision to award or deny counsel fees, but is not necessarily required to

"specifically enumerat[e] every factor." Reese v. Weis, 430 N.J. Super. 552,

586 (App. Div. 2013). Further, "applications for the allowance of fees shall be

supported by an affidavit of services addressing the factors enumerated by [New

Jersey Rules of Professional Conduct (RPC)] 1.5(a)." R. 4:42-9(b).

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). The

purpose of an award of fees against a "bad faith" litigant "is to protect the

innocent party from unnecessary costs . . . ." Yueh v. Yueh, 329 N.J. Super.

447, 461 (App. Div. 2000).

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 After thoroughly reviewing the record in light of these legal principles and

the applicable standard of review, we are satisfied the court did not abuse its

discretion and that the September 28, 2017 order was supported by substantial,

competent and credible evidence in the record. With respect to the financial

circumstances of the parties and their ability to pay, the court relied on the

parties' updated case information statements and joint expert's analysis that

plaintiff's average annual pre-tax cash flow from 2012 to 2016 was $180,000,

and that defendant's average pre-tax income was approximately $53,000 per

year.

As to the court's finding that plaintiff acted in bad faith, the record

confirms that plaintiff failed to comply with a pendente lite order and forced

defendant to incur counsel fees to file an enforcement motion, yet still remained

$11,000 in arrears in his child support and related obligations at the time of trial.

Plaintiff also failed to comply with a case management order and did not submit

documents that would have assisted in settlement, such as an intensive

settlement conference (ISC) questionnaire. The court's finding of bad faith was

further supported by plaintiff's conduct throughout litigation where he failed to

report accurately his income and the value of his business, causing extensive

litigation to develop facts that were ultimately stipulated.

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 The court's conclusion that defendant owed her current counsel

$72,514.09 in fees, while plaintiff had a balance of only $9,000 in legal fees,

despite having retained multiple attorneys, was fully supported by the parties'

post-trial submissions. Additionally, while neither party prevailed entirely in

the JOD, our review of the record confirms that defendant achieved significant

success with respect to her request for alimony.

Likewise, the court's Rule 5:3-5(c) analysis supports the allocation of

costs for the parties' joint accounting experts and mediator. In determining a

cost allocation, a court may consider the Rule 5:3-5(c) factors, including the

parties' ability to pay and their good faith. Platt v. Platt, 384 N.J. Super. 418,

429 (App. Div. 2006). The court's allocation of costs, directing plaintiff to pay

60% of the experts' and mediator's fees and defendant to pay the remaining 40%,

is consistent with its Rule 5:3-5(c) findings and is therefore neither arbitrary nor

manifestly unreasonable.

Plaintiff's claim that the trial court failed to conduct a proper RPC 1.5(a)

analysis to determine the reasonableness of defendant's attorney's fee is equally

without merit. After considering counsel's certification, which contained a

thorough explication of the RPC 1.5(a) factors, the court determined defendant's

primary counsel's hourly rate was reasonable and awarded defendant $72,514.09

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in counsel fees, even though she incurred a total of $124,777.09 in fees and

requested an award of $100,000. As the court based its decision on counsel's

detailed certification, and plaintiff failed to make specific challenges to

counsel's invoices, we conclude there was substantial, credible evidence to

support the court's conclusion. See Addesa, 392 N.J. Super. at 79 (finding

counsel fees claimed by the defendant to be reasonable based on the detailed

certification submitted by counsel).

To the extent we have not directly addressed the balance of the plaintiff'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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