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Superior Court of New Jersey, Appellate Division.

DAWN BREISCH, Plaintiff–Respondent, v. MARK RAFANELLO, Defendant–Appellant.

DOCKET NO. A–0423–12T4

    Decided: March 20, 2014

Before Judges Sabatino and Hayden.

Defendant Mark Rafanello appeals the August 9, 2012 Family Part order awarding counsel fees to plaintiff Dawn Breisch.   For the reasons that follow, we affirm.

The salient facts are as follows.   Plaintiff and defendant had a son together in 1991, although they never married.   The son resided with plaintiff, and defendant paid child support over the years through a court-ordered wage garnishment.   Defendant was employed as union electrical foreman and earned additional income as a firearms instructor, who also bought and sold firearms as a collector.   Plaintiff had a disability which prevented her from working.

After the parties' son graduated from high school, plaintiff and the son decided he would attend Universal Technical Institute (UTI), an automotive vocational school in Pennsylvania.   Defendant refused to pay anything towards the expenses, arguing that plaintiff enrolled their son without first consulting him, and that their son should have been enrolled at the nearby and less expensive Lincoln Tech.

On March 18, 2011, plaintiff filed for a support modification seeking, among other things, defendant's contribution for their son's UTI expenses.   Defendant initially did not answer, and then ignored several court orders requiring him to provide discovery and a case information statement (CIS).   After the court rendered a tentative decision pursuant to Rule 5:5–4(e), that would have required him to pay all of the school costs, defendant filed an opposition pro se.   Defendant asserted that he became unemployed in January 2012, and could not afford to contribute.1

After numerous delays and adjournments, due in large part to defendant's refusal to provide discovery, defendant eventually retained counsel.   At the April 23, 2012 hearing, the parties negotiated a partial agreement, which was later completed and entered as a consent order on June 25, 2012.   The consent order provided, among other things, that defendant would pay a lump sum of $30,000 “in full satisfaction of defendant's obligation to contribute to the parties' [son's] post-secondary tuition.”   The order also provided that the son would be deemed emancipated effective December 1, 2011, and that any child support overpayments resulting from that emancipation would be credited toward defendant's outstanding obligation to pay the son's parochial school tuition, which was “deemed paid in full.”   The order further provided that the court would determine the “apportionment” of counsel fees based on the parties' simultaneous written submissions within thirty days.

After considering both parties' submissions, the court, on August 9, 2012, entered an order directing defendant to pay $19,345 towards plaintiff's counsel fees.   The judge determined that plaintiff had acted in good faith throughout the proceedings.   In contrast, the judge found that defendant acted in bad faith as he “did not cooperate with the [c]ourt, or the [p]laintiff, by providing requested discovery,” he “failed to provide discovery and delayed resolution until after he retained his present counsel,” he “refused to engage in substantive discussions until the eve of the plenary hearing,” and plaintiff “incurred substantial costs due to the [d]efendant's failure to provide discovery consistent with” our court rules.

The trial judge determined that plaintiff was unable to pay her counsel fees based on her meager disability benefits, and that defendant was in a position to pay based on his imputed income of $89,790, his union annuity, and his interest in real property in New York State.2  See Mani v. Mani, 183 N.J. 70, 94–95 (2005).   After reviewing plaintiff's counsel's submission of time records, the judge also found that the hourly rate and the time spent to prosecute the claims were reasonable.   This appeal followed.

On appeal, defendant first argues that the trial court erred by failing to take plaintiff's bad-faith claim for vocational school expenses into account when considering counsel fees.   Specifically, defendant argues that if the case had gone to trial, plaintiff would not have been successful because of the holdings in Gac v. Gac, 186 N.J. 535, 547 (2006) (requiring consultation with the non-custodial parent before enrollment of the child), and Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) (requiring consideration of numerous factors, including each parent's ability to pay for post-secondary education).   Further, defendant contends that the judge should not have awarded plaintiff any counsel fees because she had “unclean hands.”   Specifically, he alleged plaintiff received child support payments after the date of the son's emancipation and did not promptly convey them to defendant.   We find these arguments unpersuasive.

We begin with a review of the well-established principles that guide our analysis.   Rule 4:42–9(a)(1) provides that “[i]n a family action, a fee allowance ․ may be made pursuant to [Rule ] 5:3–5(c).”  Rule 5:3–5(c) sets forth nine factors for the court to consider in determining a fee allowance.   Essentially,

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.

[Mani, supra, 183 N.J. at 94–95 (emphasis omitted) (citing Williams v. Williams, 59 N.J. 229, 233 (1971)).]

When calculating any fee award, the court must determine the reasonableness of the rates proposed by prevailing counsel and the reasonableness of the time spent.  Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004) (citing Rendine v. Pantzer, 141 N.J. 292, 335 (1995)).   To demonstrate the reasonableness of the fees application, applicants must submit an affidavit of service addressing the factors enumerated by RPC 1.5(a).   R. 4:42–9(b).

In determining an award of counsel fees, courts find bad faith where a litigant needlessly complicates or delays discovery or trial;  defies court orders, thereby resulting in higher litigation costs;  or pursues litigation frivolously or to harass the other party.   See Eaton v. Grau, 368 N.J.Super. 215, 225 (App.Div.2004);  Yueh v. Yueh, 329 N.J.Super. 447, 459–63 (App.Div.2000).  “ ‘[W]here one party acts in bad faith, the relative economic position of the parties has little relevance’ because the purpose of the [fee] award is to protect the innocent party from unnecessary costs and to punish the guilty party.”  Yueh, supra, 329 N.J.Super. at 461 (quoting Kelly v. Kelly, 262 N.J.Super. 303, 307 (Ch. Div.1992)).

The decision of whether to grant attorney's fees in a family action lies within the discretion of the trial judge.   R. 5:3–5(c);  Addesa v. Addesa, 392 N.J.Super. 58, 78 (App.Div.2007).   That determination 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, supra, 141 N.J. at 317).  “[An] abuse of discretion only arises on demonstration of ‘manifest error or injustice,’ ” Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's “decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.”  Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and citation omitted).

Defendant's argument that plaintiff made her motion for contribution in bad faith because she would not have succeeded at trial is meritless.   Defendant's claim that he had a legal defense under Gac and Newburgh does not demonstrate that plaintiff acted in bad faith by bringing the motion.   Nothing in the record indicates that plaintiff brought her contribution claim in order to harass or injure defendant, or that she conducted herself in such a manner as to delay resolution.   See Eaton, supra, 368 N.J.Super. at 225;  Yueh, supra, 329 N.J.Super. at 459–63.   On the contrary, the trial judge's finding that plaintiff acted in good faith throughout the proceedings is fully supported by the record.

Furthermore, defendant's assertion that plaintiff had unclean hands in not reimbursing defendant for child support payments made after the emancipation date is equally without merit.   The consent order does not require plaintiff to reimburse defendant for any child support overpayments resulting from the period between the agreed upon emancipation date and the date of the consent order.   Rather, paragraph five of the consent order provides that any child support overpayments would be credited toward the parochial school tuition defendant owed to plaintiff.   Consequently, the judge did not abuse his discretion in failing to find that plaintiff came to court with unclean hands when no reimbursement was due.   See Sheridan v. Sheridan, 247 N.J.Super. 552, 569 (Ch. Div.1990) (finding that courts of equity “must use just discretion in determining under what circumstances ․ to bar [a litigant's] relief”).

The trial judge's decision to award counsel fees was an appropriate exercise of discretion.   In rendering his decision, the judge cogently and thoroughly analyzed the factors set forth in Rule 5:3–5(c), and Mani, supra, 183 N.J. at 94–95.   The judge's determination that defendant acted in bad faith, which caused plaintiff to incur significant and unnecessary counsel fees, is fully supported in the record.   Defendant has not shown that a “manifest error or injustice” has occurred that would require us to disturb the judge's decision;  hence, we decline to do so.   See Hisenaj, supra, 194 N.J. at 20.

Finally, defendant contends that plaintiff's “misdeeds, coupled with her unreasonable delay and dilatory enforcement” of a previous outstanding judgment of counsel fees entered on March 30, 2001, must serve as a waiver of that judgment, or alternatively, requests that the 2001 judgment should be addressed separately.   The only order under appeal here is the August 9, 2012 order, which does not involve, address or even mention the March 30, 2001 order in any way.   We will not address a challenge to an order not being appealed.  State v. Robinson, 200 N.J. 1, 19 (2009) (“The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves.”).   Hence, this issue must be addressed to the family court in the first instance.



FN1. Plaintiff later discovered that defendant had a large union annuity account and owned real estate in New York..  FN1. Plaintiff later discovered that defendant had a large union annuity account and owned real estate in New York.

FN2. The judge noted that defendant had not provided complete financial information, a CIS, or information on his counsel fees..  FN2. The judge noted that defendant had not provided complete financial information, a CIS, or information on his counsel fees.


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