NOT FOR PUBLICATION WITHOUT THE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-0345-19T1
JENNIFER A. LAROSA,
Plaintiff-Respondent,
v.
PETER BENZA,
Defendant-Appellant.
________________________
Argued October 1, 2020 – Decided October 27, 2020
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-0731-13.
Marianne Zembryski argued the cause for appellant.
Kathy Karas-Pasciucco argued the cause for respondent
(Feitlan, Youngman, Karas & Gerson, LLC, attorneys;
Kathy Karas-Pasciucco and Frederick Gerson, on the
brief).
PER CURIAM
Defendant Peter Benza appeals from an August 29, 2019 order awarding
his former wife, plaintiff Jennifer LaRosa, $7377.35 in counsel fees. We affirm.
The parties are divorced and have two teenage sons. In November 2012,
they entered into a Marital Settlement Agreement (MSA), which was
incorporated into their 2013 Dual Judgment of Divorce. In January 2019,
plaintiff moved to enforce the MSA, seeking: (1) reimbursement for defendant's
share of their children's expenses; (2) permission for the children to travel and
participate in extracurricular activities; and (3) an award of attorney's fees.
Plaintiff claimed she contacted defendant multiple times concerning the child-
related issues, but he either withheld consent for the children to participate in
activities, refused reimbursement for his share of their expenses, or did not
respond to her requests. Plaintiff's motion was supported with copies of
communications she and her attorney sent to defendant and his counsel between
September 2018 and January 2019, requesting reimbursement for the children’s
medical expenses, extracurricular activities, and school lunches.
Following extensive oral argument on May 13, 2019, the motion judge
directed defendant to reimburse plaintiff $4545.54 for his share of expenses due
under the MSA. She also awarded plaintiff counsel fees in an undetermined
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amount, pending receipt of an updated certification of services from plaintiff's
counsel and defendant's response to same.
In support of her decision to award counsel fees, the motion judge noted
that, although defendant contended he did not owe the total sum requested by
plaintiff, he conceded he was responsible for some reimbursements. The judge
observed:
But he paid none of the ones that were supposed to be
paid. Even in his own exhibit, there are charges there
that he agrees he should have paid. He still hasn't paid
to this day. The necessity of having to file an
application for the children to go on vacation with the
plaintiff, for the children to participate in sports -- there
just is no reason why this motion should have had to
have been filed.
He's not paying any child support whatsoever.
Certainly[,] it’s not a financial thing.
....
[His income of ] $112,000 a year is all for him -- all for
the benefit of him. He certainly could have paid these
extracurricular activities and medical expenses for the
reimbursement. He didn’t even do that, causing this
motion to have to be filed.
And this isn't the first one. There’s been more . . . . So,
I am going to award counsel fees.
Defendant did not appeal from the May 13, 2019 order. On August 29,
2019, the judge awarded plaintiff $7377.35 in counsel fees, although the record
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reflects that plaintiff represented she incurred over $17,000 in counsel fees and
costs to pursue her enforcement application. In the judge's statement of reasons,
she itemized those legal services provided by plaintiff's counsel which she
deemed reasonable, noting the hourly rates and the time expended for those
services.
On appeal, defendant argues the fee award should be reversed because the
motion judge did not perform the requisite analysis under Rule 5:3-5(c) and
applicable case law. We are not persuaded.
In Mani v. Mani, the Court summarized Rules 5:3-5(c) and 4:42-9(b) as
follows:
In a nutshell, in awarding counsel fees, the court must
consider whether the party requesting the fees is in
financial need; whether the party against whom the fees
are sought has the ability to pay; the good or bad faith
of either party in pursuing or defending the action; the
nature and extent of the services rendered; and the
reasonableness of the fees.
[183 N.J. 70, 94-95 (2005) (citations omitted).]
"'Where one party acts in bad faith, the relative economic position of the
parties has little relevance' because the purpose of the award is to protect the
innocent party from unnecessary costs and to punish the guilty party." Yueh v.
Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000) (quoting Kelly v. Kelly, 262
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4
N.J. Super. 303, 307 (Ch. Div. 1992)). Bad faith may consist of a party's
"constant disregard" of court orders, id. at 460; or the "intentional
misrepresentation of facts," Borzillo v. Borzillo, 259 N.J. Super. 286, 294 (Ch.
Div. 1992).
Next, we note that at page thirty-one of the parties' MSA, they agreed:
Nothing herein contained shall be deemed or construed
as a waiver or denial of either party's right to secure
payment of counsel fees for any breach by the other of
the terms of this agreement. In the event of such
breach, the breaching party shall be responsible for any
and all legal fees arising from same.
There is a "'strong public policy favoring stability of arrangements' in
matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)
(quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). Matrimonial settlement
agreements are "governed by basic contract principles," Quinn v. Quinn, 225
N.J. 34, 45 (2016), and "fair and definitive arrangements arrived at by mutual
consent should not be unnecessarily or lightly disturbed," id. at 44 (quoting
Konzelman, 158 N.J. at 193-94). Indeed, as we have previously observed, a trial
court's failure to give effect to a counsel fee award provision in an MSA
constitutes an abuse of discretion. See Strahan v. Strahan, 402 N.J. Super. 298,
317 (App. Div. 2008).
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Under Rule 5:3-5(c), a trial court has discretion to award counsel fees in
matrimonial actions. Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div.
2010) (citing Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004)). "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, 402 N.J.
Super. at 317 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Here, we discern no abuse of discretion. It is evident the motion judge
tethered her award of counsel fees to her May 13, 2019 ruling, when she found
defendant acted unreasonably by withholding consent to the children's activities ,
and by withholding payments he agreed were due to plaintiff, even though he
enjoyed the exclusive use of his significant earnings. As the judge observed, it
was this recalcitrant behavior that caused "this motion to have to be filed. And
this isn't the first one. There's been more."
Given defendant's ongoing bad faith and intransigence, we see no reason
to second guess the amount of counsel fees awarded, particularly since the sum
was fixed only after the judge considered defendant's opposition to the award
and after the requested fee was adjusted for reasonableness. Moreover, the
defendant's objections to the amount of the award ring hollow, in light of the
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provision in the MSA that a "breaching party shall be responsible for any and
all legal fees arising from [the breach]."
Defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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