CAMILE COLARUSSO VS. DAVID COLARUSSO (FM-02-0308-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3324-16T2

CAMILE COLARUSSO,

Plaintiff-Appellant,

v.

DAVID COLARUSSO,

Defendant-Respondent.
______________________________

Submitted September 12, 2018 – Decided October 1, 2018

Before Judges Fasciale and Rose.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0308-15.

Callagy Law, attorneys for appellant (Brian P. McCann,
on the briefs).

David Colarusso, respondent pro se.

PER CURIAM

Plaintiff Camile Colarusso appeals from a March 2, 2017 dual judgment

of divorce following a twelve-day trial in the Family Part. Plaintiff argues the
trial judge erred by: (1) denying her application to call the court-appointed

forensic accountant and her own independent expert as witnesses; (2) denying

her request for an adjournment to retain new counsel when her attorney was

relieved on the day of trial; (3) imputing income to defendant David Colarusso,

resulting in an insufficient alimony award; (4) failing to compel defendant to

pay their adult children's expenses; and (5) denying her counsel fees. Having

considered plaintiff's contentions in light of the applicable law, we affirm

substantially for the reasons set forth in the trial judge's thorough written

opinion.

I.

We discern the relevant facts and procedural history from the record. The

parties were married in October 1989. Three children were born of the marriage:

M.C., born in February 1990, D.C., born in January 1993, and N.C., who died

during the marriage. In 1998, the parties jointly purchased a residence in

Allendale. For most of the marriage, plaintiff owned and worked as a hair stylist

in her own salon, and defendant was employed as a chiropractor in his own

practice.

Plaintiff filed a complaint for divorce in July 2014. Four months later,

defendant vacated the former marital home. In July 2015, the parties executed

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a consent order, obligating defendant to pay nearly $5,000 in pendente lite

support, including $450 per month in cash. In January 2016, plaintiff filed an

amended complaint for divorce, which included an irreconcilable differences

count and Tevis claims.1 Defendant filed answers to the complaint and amended

complaint, respectively, contesting the allegations, and seeking a judgment of

divorce and related relief.

During the contentious, protracted pretrial proceedings that followed, the

judge conducted numerous case management conferences, and appointed two

joint forensic accounting experts, a discovery master "to monitor [the ex]change

of discovery . . . and requests of the forensic accountant," and a mediator to

facilitate settlement. In June 2016, the judge scheduled a firm trial date for

plaintiff's Tevis claims on four consecutive days in October 2016. By

correspondence dated September 15, 2016, the judge rescheduled trial for

November 1, 2, and 3, 2016, and advised the parties that the matrimonial action

would proceed before the Tevis claims.

1
See Tevis v. Tevis, 79 N.J. 422, 433-34 (1979) (recognizing that the single
controversy doctrine requires marital tort claims to be alleged in conjunction
with the divorce action).

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 Plaintiff retained four law firms to represent her during the litigation. On

October 6, 2016, a fifth law firm attempted to file a substitution of counsel and

request an adjournment of the November 1, 2016 trial. The judge refused to

accept the substitution, deeming it "in derogation of the Court Rules." 2 On

October 11, 2016, the fifth law firm filed an order to show cause to substitute as

counsel, but plaintiff withdrew that application "believing it was in her best

interest to proceed with current counsel as an adjournment of the trial would not

be granted." 3

On October 28, 2016, plaintiff's fourth attorney filed a motion on short

notice to be relieved as counsel. In granting the application, the trial judge

conducted a hearing under seal, in the presence of the parties, and considered

the certification of counsel citing "an irreparable breakdown of the relationship

between [plaintiff and counsel's firm]" including veiled threats, and accusations

that counsel "had removed documents ultimately submitted to the [c]ourt." The

2
See R. 5:3-5(e)(2) (permitting withdrawal of counsel within ninety days of a
scheduled trial date "only by leave of court, on motion with notice to all
parties.").
3
The October 11, 2016 order contained in plaintiff's appendix indicates the
application was denied. Plaintiff did not appeal from the October 11 order, and
did not provide us with the transcript of that proceeding. Nonetheless, her merits
brief indicates the application was withdrawn.
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judge then denied plaintiff's request for an adjournment to retain substitute

counsel, reasoning:

This case has gone through every court process that we
have. It's going through motion practice. It's gone
through mediation. [The parties] had a Discovery
Master, . . . which is something that only happens in
rare situations. So [they] had the benefit of that
process. [They] had early settlement panel, and [they
have] had mediation. This case has gone through every
court, we've exhausted every avenue. It is time. It is
800 something days old. It's one of the oldest cases in
the county.

....

I booked three solid [consecutive trial] days [at the
request of plaintiff's counsel prior to her withdrawal].
I was implored by everyone to clear my schedule for
this case, and I have done that. And I am not granting
another adjournment. You have three days [i.e.,] today,
tomorrow and Thursday.

....

[Another attorney] . . . filed an Emergency Order to
Show Cause [on behalf of plaintiff] . . . about a month
ago to come into the case. [H]ad that been granted at
that time, [plaintiff] would have had a month to get new
counsel transitioned into [this matter]. I was ready to
rule on that [application]. I believe it was scheduled
for a Friday afternoon [in] early October. And then that
was withdrawn . . . .

I have a box of documents that were submitted on
[plaintiff's] behalf, as well as a trial brief. I have a trial

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 brief from [defendant]. And we're going to begin the
trial.

The judge thereafter conducted a trial on six days in November 2016 and

six days in January 2017. Neither party was represented by counsel. The judge

heard testimony exclusively from both parties concerning their marital history,

their work and earnings history, their economic circumstances, and their

standard of living during the marriage. The court also considered the

voluminous exhibits entered in evidence. Having admitted in evidence the

reports of the parties' joint accounting expert, Mark Koenig, the court denied

plaintiff's application to call Koenig as a witness. The court also denied

plaintiff's request during trial to call Collen Gaskin as her own accounting expert

because that witness was not named in discovery and, as such, had not prepared

a report. The court however, afforded plaintiff wide latitude to confer with

Gaskin during trial breaks. After considering the testimony of both parties and

the documentary evidence, Judge Lisa A. Firko rendered a comprehensive

twenty-three page written opinion on March 2, 2017.

In her findings and conclusions regarding equitable distribution, Judge

Firko carefully considered each of the statutory factors set forth in N.J.S.A.

2A:34-23.1. Notably, the judge found, based on her "observation of the

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demeanor of both parties during the trial; the caustic and hostile relationship

between the parties; and the financial burdens on both parties, it is clear that a,

'divorce game[,]' is being played to maximize the outcome of the acrimonious

litigation, by each party."

Pertinent to this appeal, Judge Firko made extensive findings concerning

"[t]he income and earning capacity of each party" pursuant to N.J.S.A. 2A:34 -

23.1(g), and determined both parties were underemployed. In doing so, the

judge found plaintiff's testimony that, "[o]n, average she only works three . . .

days per week because of the time limits imposed by this litigation[,]" was

"disingenuous." Further, as "a certified hair colorist [with] a certification to

performing hair straightening (Keratin) treatments[, plaintiff] has specialized

expertise in her field." Based on Koenig's forensic accounting evaluation, the

judge found plaintiff's business was worth $16,500 as of June 30, 2014.

Noting defendant also only works three days per week, the judge

determined, "There is no reason why he should not be working full-time, or five

. . . days per week. Specifically, defendant did not offer "medical or other

testimony or proofs . . . to explain why [he] is not working full time." Pursuant

to Koenig's forensic accounting evaluation, the judge valued defendant's

business at $37,000.

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 Giving due consideration to "the long-term nature of the marriage; the

dedication of each party to their respective businesses; and caregiving

responsibilities both had for the children," the trial judge determined the parties

were entitled to a thirty percent share of each other's business. The judge then

calculated plaintiff's share of equitable distribution at $6,360, payable from

defendant's share of the sale of the marital home.

Regarding alimony, Judge Firko gave due regard to the factors set forth in

N.J.S.A. 2A:34-23(b). Notably, she deemed the testimony from both parties

"unreliable and incredulous . . . as to their earning capacities." Having found

that the trial record was devoid of evidence that either party is disabled or that

their underemployment status is temporary, the judge imputed income to both

parties based on the "New Jersey Department of Labor and Workforce

Development-Occupational Wages" (NJDOL statistics) for hairstylists and

chiropractors.

Noting the NJDOL statistics provide an annual average salary for

hairstylists of $34,300 per year, or $660 per week, the judge accepted

defendant's testimony that plaintiff "is savvy; has managed other services in her

salon; and that she earns cash tips." The judge likewise accepted the NJDOL

statistics setting an annual average salary for chiropractors at $127,000 per year,

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or $2,440 per week. "In the interest of fairness, justice, and equity, the [c]ourt

utilized the annual mean salary, for both parties, in order to be consistent." The

judge then ordered defendant to pay plaintiff $500 per week as open durational

alimony.

In denying the parties' requests for counsel fees and costs, the trial judge

analyzed the factors set forth in Rule 5:3-5(c), Rule 4:42-9(a), and RPC 1.5(a),

and recognized that plaintiff and defendant prevailed on part of the relief sought,

and they were denied some of the relief sought. Emphasizing the lack of

reasonableness and good faith of the positions advanced by the parties, pursuant

to Rule 5:3-5(c)(3), the judge determined plaintiff's position in seeking

defendant's financial support for the two "adult children who are in post -

graduate programs and living independently" was "unreasonable" and

"disingenuous." The court elaborated further:

As duly noted by [defendant, plaintiff] persisted in
requesting child support for [D.C.], who [plaintiff]
claimed suffered a "traumatic brain injury in March
2013.["] This was an exaggeration. Pointedly,
[defendant] represented that [D.C.] fell and sustained a
concussion after a night of drinking in college. She is
pursuing a Ph.[D.], which speaks volumes as to her
intelligence and cognitive abilities.

This appeal followed.

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 II.

The scope of our review of trials in the Family Part is particularly limited.

Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings

by the trial court are binding on appeal when supported by adequate, substantial,

credible evidence." Id. at 411-12. "Because a trial court hears the case, sees

and observes the witnesses, [and] hears them testify, it has a better perspective

than a reviewing court in evaluating the veracity of witnesses." Id. at 412

(alteration in original) (citations and internal quotation marks omitted). We

accord particular deference to the judge's factfinding because of "the family

courts' special jurisdiction and expertise in family matters." Id. at 413.

However, when "the focus of the dispute is . . . alleged error in the trial

judge's evaluation of the underlying facts and the implications to be drawn

therefrom, the traditional scope of review is expanded." N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations and internal

quotation marks omitted). "Still, even in those circumstances we will accord

deference unless the trial court's findings 'went so wide of the mark that a

mistake must have been made.'" Ibid. (citations omitted).

A.

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 We first consider plaintiff's contention that the court erred in denying her

application for an adjournment to seek new counsel on the day of trial. Requests

for adjournments likewise are addressed to the sound discretion of the trial

judge. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003). Such

discretionary decisions will not be set aside unless the judge pursued a

"manifestly unjust course." Dolan v. Sea Transfer Corp., 398 N.J. Super. 313,

330 (App. Div. 2008); Union Cty. Improvement Auth. v. Artaki, LLC, 392 N.J.

Super. 141, 149 (App. Div. 2007).

Here, plaintiff retained four attorneys, and contemplated hiring a fifth

lawyer within one month of trial. Plaintiff withdrew that application, then

caused her fourth attorney to withdraw from the case on the day of trial. Citin g

the protracted history of the case and plaintiff's withdrawal of her application to

substitute a fifth attorney in this matter, the trial judge implicitly considered the

"manifest rights of [both] parties" in denying plaintiff's request. In re Koretzky,

8 N.J. 506, 535 (1951). We, therefore, discern no abuse of discretion here.

B.

We turn to plaintiff's overlapping contentions that the judge erred in

imputing income to defendant, and denying her request to call Koenig and

Gaskin as witnesses regarding defendant's earnings. Plaintiff also asserts that

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she did not stipulate to Koenig's valuation of defendant's business. Curiously,

plaintiff does not challenge the judge's determination that she stipulated to

Koenig's valuation of her business, nor the judge's imputation of income to her.

"A Family Part judge has broad discretion in setting an alimony award and

in allocating assets subject to equitable distribution." Clark v. Clark, 429 N.J.

Super. 61, 71 (App. Div. 2012). "Of course, [as to alimony] the exercise of this

discretion is not limitless[,]" and is "frame[d]" by the statutory factors set forth

in N.J.S.A. 2A:34-23(b). Steneken v. Steneken, 367 N.J. Super. 427, 434 (App.

Div. 2004), aff'd as modified, 183 N.J. 290 (2005). Regarding equitable

distribution, the statutory factors enumerated in N.J.S.A. 2A:34-23.1, "used in

concert with the facts of each case," inform the otherwise "broad discretion"

accorded to the trial judge. Id. at 434-35.

"Where the issue on appeal concerns which assets are available for

distribution or the valuation of those assets, . . . the standard of review is whether

the trial judge's findings are supported by adequate credible evidence in the

record. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div.

1978). "[W]here the issue of appeal concerns the manner in which allocation

. . . is made," the appellate court reviews for abuse of discretion. Id. at 444.

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 Equitable distribution is a three-step proceeding, in which a trial judge

must: "decide what specific property of each spouse is eligible for distribution[;]

. . . determine its value for purposes of such distribution[;] . . . [and] decide how

such allocation can most equitably be made." Rothman v. Rothman, 65 N.J.

219, 232 (1974). Pursuant to N.J.S.A. 2A:34-23.1, the trial court must consider

factors including the duration of the marriage, the income or property the parties

brought to the marriage, and their economic circumstances at the time of

division.

Where, as here, a trial judge has determined that a party is voluntarily

underemployed, the judge has the discretion to impute income. Caplan v.

Caplan, 182 N.J. 250, 268 (2005) (The judge should consider "whether the

[spouse] has just cause" for voluntarily remaining unemployed or

underemployed.); Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001)

("Income may be imputed to a party who is voluntarily unemployed or

underemployed.").

"Imputation 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 v. Storey, 373 N.J. Super. 464,

474 (App. Div. 2004). An alimony award should "take into consideration the

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real facts and circumstances of each party's financial situation including actual

income, expenses, support from other sources and potential earning capacity."

Connor v. Connor, 254 N.J. Super. 591, 604 (App. Div. 1992). On appeal, a

trial judge's imputation of a specific amount of income "will not be overturned

unless the underlying findings are inconsistent with or unsupported by

competent evidence." Storey, 373 N.J. Super. at 474-75. There are no bright-

line rules that govern the imputation of income. Id. at 474; see also Caplan, 182

N.J. at 270. Against these standards, we find no reasons to disturb the well-

reasoned exercise of discretion in this regard.

C.

We also find no merit to plaintiff's claim that the court should have

permitted her to call Koenig where, as here, the court admitted his reports in

evidence. As defendant argued in his merits brief, plaintiff's contention was

taken out of context. Specifically, the judge indicated before testimony

commenced that either party could subpoena Koenig, but that admission of the

reports would save both parties "time and money." Equally unavailing is

plaintiff's argument that she should have been permitted to call Gaskin, who was

not named in discovery and had not prepared an expert report. The judge did

not abuse her discretion in declining to allow her testimony. Compare R. 5:3-

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3(h) (permitting parties in family actions to retain their own experts) with R.

5:5-1(e) (mandating completion dates for discovery).

We conclude that plaintiff's claims of error regarding the equitable

distribution award and the amount of alimony, in light of the record, reveal

nothing "so wide of the mark" that a clear mistake was made that warrants our

intervention. We affirm substantially for the reasons expressed in Judge Firko's

thoughtful written opinion.

Finally, plaintiff argues the court improperly denied her application for

counsel fees. "An award of counsel fees in a matrimonial action is

discretionary." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010),

aff'd o.b., 208 N.J. 409 (2011). "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[,]" Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)

(quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)), or a clear error in

judgment. Tannen, 416 N.J. Super. at 285.

Here, the trial judge conducted an extensive evaluation of the applicable

factors set forth in Rule 5:3-5(c), Rule 4:42-9(a), and RPC 1.5(a). Because she

found, pursuant to Rule 5:3-5(c)(3), the positions advanced by the parties lacked

both reasonableness and good faith, the judge determined neither party was

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entitled to fees or costs. Moreover, in evaluating the reasonableness of the fee

charged by counsel pursuant to RPC 1.5(a), the judge aptly noted neither party

presented the requisite affidavits of counsel "since both parties were self-

represented." We discern no abuse in her determination.

Finally, plaintiff's argument that the court erred in failing to compel

defendant to pay their adult children's expenses, to the extent not previously

addressed, lacks sufficient merit to warrant further discussion in our opinion. R.

2:11-3(e)(1)(E).

Affirmed.

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