Posted on July 15, 2009 by Eric S. Solotoff

FALSE IN ONE, FALSE IN ALL - AT TRIAL, CREDIBILITY MATTERS

Trials are often won or lost based upon credibility determinations.  More often than not, cases are replete with he said/she said situations, or real differences of opinion as to almost every issue.  In an interesting unreported Appellate Decision released on July 15, 2009, credibility was critical.  As the author of this post was the successful trial and appellate attorney in this matter, I am fully familiar with the facts. 

Aside from being important at trial, credibility determinations cannot be overturned on appeal.  On top of that, as long as the Appellate Division finds that there was sufficient credible evidence in the record, the trial court opinion will be upheld.

In this case, the issues were more than he said she said. In the six months between when the wife said that she wanted to get divorced and the filing of the divorce complaint, the husband's law practice which had been growing and flourishing each year, suddenly became less profitable, if he was to be believed.  He was not believed.  Both the wife's testimony as well as her forensic accounting expert's testimony were deemed more credible. 

It was not just the wife's word that was so compelling.  Rather, at trial we produced thousands of pages of exhibits that supported the issues we presented.  It was not surprising, on appeal, that defendant argued that there was no evidence in the record - but to do so, he had to fail to comply with the rules and submit the trial evidence.  The wife was forced to remedy this. 

On almost every issue at trial, the husband was deemed not credible. This included findings of discrepancies in his Case Information Statement, violation of Court Orders, lack of credibility regarding the marital standard of living and his income, etc.  The Appellate Division's assessment of the husband was perhaps even more severe:

Finally, in an amended notice of appeal, defendant seeks review of an order entered on September 24, 2007 denying his motion for recusal of the trial judge. Defendant claims that "the trial [judge] made several inappropriate credibility determinations about defendant and his experts to justify rejecting the testimony and objective evidence presented at trial." After reviewing the record, we find no evidence of bias
against defendant. The court made credibility determinations based upon the evidence presented and defendant's demeanor and testimony. We give great deference to the trial court's credibility findings and will not upset them unless they are patently contrary to the credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Moreover, if this had been a jury trial, the court could have given the "False in One, False in All" charge, instructing the jury that if it found that defendant had testified untruthfully in one instance, it could find his entire testimony to be untruthful. Since numerous discrepancies in defendant's financial information were brought to light during trial, the "False in One, False in All" principle applies.

The ramifications of not being truthful are rarely so clear.  We are obviously proud of the result obtained for our client in this case.

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Posted on April 20, 2009 by Robert A. Epstein

Appellate Division Explores Counsel Fee Awards and Requests for Oral Argument on Motions

 We have previously blogged on the issues of counsel fee awards and a trial court's decision to grant or deny a party's request for oral argument on a pending motion.  Two of these prior postings can be found here and here.  Both of these issues framed the Appellate Division's recent unpublished opinion in Bove v. Bove, found here. 

The parties at issue were divorced on June 28, 2001 and three children were born of the marriage (two adult sons and a 16-year old daughter).  A supplemental Judgment of Divorce established that the Wife would have sole physical custody and the parties would share joint legal custody.  Additionally, the Husband was required to create trust funds for the children's college expenses and to be responsible for 80% of the daughter's college tuition.

The Wife sought to enroll the daughter in a private high school, informing the Husband that she could not pay for any part of private school tuition, that she was taking the daughter to open houses and that she asked for the Husband's "thoughts on the matter."  The Husband responded in a letter that he would not contribute to tuition prior to college and was displeased that the issue was broached with their daughter before him.  Nevertheless the Wife moved forward with the process and, when the Husband sought to have the Wife confirm in writing that she would not seek contribution from him for high school tuition, she refused.  The Wife also contended that the Husband was using the college trust funds for non-college expenses, as defined by the supplemental JOD, and the Husband contended that the Wife ignored, and then hedged, on his timely requests for vacation with the children. 

The Husband filed an application for an order regarding the issues of vacation, pre-college tuition for their daughter, and the definition of "college expenses" as set forth in the supplemental JOD.  He also sought counsel fees.  The trial court entered an order on March 28, 2008 allowing the Husband to take the daughter on the scheduled vacation outside of the United States.  As the wife had only previously submitted an opposing certification as to the vacation issue, she waited until the date of oral argument to submit an opposition to the remaining issue.  In his subsequent reply, the Husband added that the Wife had also recently sold investment property, the proceeds from which should be used to reimburse the Husband for counsel fees.  He filed a certification of services with his application pursuant to R. 4:42-9. 

The trial court later informed the parties that it would decide on the remainder of the Husband's motion on the papers, to which both parties objected and the Wife responded by filing a brief that failed to contest the Husband's claim regarding her sale of the investment property.  In finding for the Husband on his motion, the trial court also granted him $5,000 in counsel fees pursuant to R. 5:3-5(c)(3), (7) and (9).  In this regard, the trial court specifically found that the Wife could not make unilateral decisions and then refuse to sign a proposed consent order, as well as seek payment for things not covered by the supplemental JOD. 

The Wife filed a motion for reconsideration of the trial court's order stating, as to the counsel fees issue, that the Court erred by failing to make findings regarding bad faith by the Wife and the parties' mutual ability to pay.  The Husband filed a cross-motion and, as part of same, again sought counsel fees.  The trial court again chose to decide the motion on the papers, despite the Wife's request for oral argument.  As to the issue of counsel fees, the trial court affirmed its award again in reliance on R. 5:3-5(c) - as to (c)(3) that the Wife's position as to the daughter's enrollment in private school was unreasonable and her doing so despite the Husband's contrary view was deemed bad faith; as to (c)(7) that the Husband had prevailed on his motion; and as to (c)(9) that the Wife had resisted the vacation request without a sufficient basis.  The trial court rejected the Wife's argument that the fees award was inappropriate because it did not consider the parties' ability to pay because the Wife had failed to provide any financial information and, additionally, found that she had the ability to pay based on the proceeds received from sale of the investment property.  The court then granted the Husband a $1,000 in counsel fees, finding that the Wife's reconsideration application lacked merit. 

On appeal, the Appellate Division affirmed the initial grant of $5,000 in counsel fees on the Husband's first application.  In so holding, the Appellate Division considered N.J.S.A. 2A:34-23, which requires a court to "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."  The Appellate Division then referenced certain factors laid out in R. 5:3-5(c), including whether the party seeking fees is in financial need; whether the party against whom fees are sought has the ability to pay; the good or bad faith of either party in pursuing/defending the action; the nature and extent of the services rendered; and the reasonableness of the fees sought.

In light of these factors, the Appellate Division noted that the responsibility to provide information as to financial circumstances rests with the parties.  Interestingly, it supported this notion by referencing how a court may dismiss a party's pleadings when a Case Information Statement is not properly submitted pursuant to R. 5:5-2.  As the trial court only had the Husband's financial-related information to rely on, as the Wife had failed to rebut his assertions, the Appellate Division found that the trial court had not abused its discretion in rendering the award. 

As to the fee award granted to the Husband on the Wife's motion for reconsideration, the Appellate Division analyzed whether the Wife acted reasonably and in good faith under R. 5:3-5(c).  It noted that, where both parties litigate in good faith, fees are not awarded unless the parties exhibit unequal economic positions and, where one party acts in bad faith, such economic positions carry little relevance because the award becomes a protection for the "innocent party" and a "punish[ment]" for the "guilty party."  Further, the Appellate Division stated that a finding of bad faith is not required.  Rather, it concluded that only the good faith of the parties' positions should be considered, referencing the definition of "good faith" in Black's Law Dictionary as, "a state of mind consisting in . . . honesty in belief and purpose . . . ." With these legal principles in mind, the Appellate Division affirmed the trial court's finding that the Wife had acted "without good faith," and had the ability to pay the $1,000 counsel fee award to the Husband. 

Finally, the Appellate Division held that the trial court erred in not holding oral argument on the Wife's motion for reconsideration pursuant to R. 5:5-4.  It noted that, while the grant of oral argument is discretionary, a strong presumption exists favoring oral argument on motions other than "calendar matters and routine discovery applications."  Nevertheless, the Appellate Division declined to remand the matter because it found that doing so would only increase the parties' expenses and add nothing more to an "already ample record" in light of the trial court "evidential[ ] aware[ness] of the issues and familiar with the parties' arguments."  
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Posted on April 2, 2009 by Apple Sulit-Peralejo

IF I WIN, DO I GET COUNSEL FEES?

In New Jersey, a family court judge has authority to award counsel fees to one of the litigants pursuant to Rule 4:42-9(a)(1);  Rule 5:3-5(c); and the New Jersey Supreme Court decision of Williams v. Williams, 59 NJ 229, 233 (1971).  Additionally, a court is guided by the "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".  Often, litigants mistakenly assume that the litigation will ultimately be funded by the other party based upon their belief that the other party acted in bad faith.  Robert Campbell, a litigant in the March 31, 2009 unreported Appellate Division decision of Sheinbaum v. Campbell, learned (the hard way) that a counsel fee request does not rise and fall with a litigant's belief that the other party acted in bad faith. 

The underlying facts of  Sheinbaum v. Campbell indicates a long tortured emotional history between the parents of a child with special needs.  The parties resided in Massachusetts.  Less than a year after the parties were married, they separated.  At the time of their separation, plaintiff was pregnant.  The child was born five months after the separation.  Four months after the child was born, the parties divorced but the divorce did not address custody of the child.  Thereafter, plaintiff and the child moved to New Jersey.    In New Jersey, plaintiff filed a Complaint seeking custody, child support and an order limiting defendant's parenting time, a trial court litigation spanning three years.  During the three years of litigation, numerous orders were entered concerning parenting time and child support.  When the initial parenting time order was entered, defendant's parenting time was supervised.  During the litigation, defendant's parenting time became unsupervised, increased and eventually, defendant had limited overnight parenting time. 

Although the Appellate Division decision focused on issues related to counsel fees and experts fees, clearly defendant was of the belief that plaintiff intended to limit his parenting time unjustifiably and that plaintiff was not acting reasonably with respect to the health and welfare of the child. Plaintiff contended that she believed that based upon the child's medical disabilities, additional parenting time was not in the child's best interest. Also very important is that the parents did not agree with the child's medical treatment. Defendant not only alleged that the child was receiving too much therapy in the custody litigation but Defendant also raised the issue with the state agency who approved the child's therapy regiments in an administrative action against Plaintiff. After a seventeen day trial, the Court awarded Plaintiff sole custody, child support and $68,000 in counsel fees. The Court also entered an Order requiring Defendant to pay 100% of the Court appointed child coordinator. Defendant then filed a Motion for Reconsideration asking that the trial Court reconsider the award of counsel fees based upon his assertion that the Plaintiff acted in bad faith in limiting his parenting time and that the trial Court reconsider the order requiring him to pay 100% of the court coordinator fees noting that during the litigation, the Court previously entered an order requiring Plaintiff to pa 40% of those fees. In reply, Plaintiff filed a crossmotion to enforce litigant's rights. The trial court denied the application and awarded Plaintiff another $1,500 in counsel fees and required Defendant to make monthly installments towards the $68,000 counsel fee award. Furthermore, the trial Court ordered that Defendant would have to pay a $100 a day fee in the event that he did not pay the counsel fee installment payments. Defendant then filed his appeal with the Appellate Division.
 

The Appellate Division  rendered a 35 page decision containing a comprehensive analysis of the facts of the case as well as the Court Rules and decisions governing counsel fee awards and the factors contained in the Court Rules specifically applicable to the Sheinbaum v. Campbell case.  The Appellate Division noted that Defendant's primary contention was that the trial court abused its discretion in imposing counsel fees because he prevailed in his position on overnight parenting time with the child.  Implicit in the Defendant's argument was that he prevailed because Plaintiff acted in bad faith in denying him overnight parenting time especially because experts agreed that additional overnight parenting time would not be harmful to the child.  The Appellate Division noted "that the 'result obtained' is only one factor the court considers in determining a counsel fee award, and results do not necessarily trump or outweigh the other factors under the rule."  In discussing Defendant's contention that Plaintiff acted unreasonably in objecting to overnight parenting time, the Appellate Court  found that "even if plaintiff was mistaken in believing that overnight stays were not in the child's best interest, the proper inquiry was not into her beliefs per se, but the good faith in which she held them".  In other words, while Plaintiff strenuously objected to overnight parenting time believing that it would be contrary to the stability of the parties' child in light of the child's health conditions, a belief that was rejected by the experts involved, Plaintiff held her beliefs in good faith and that her actions were not malicious.  The Court also commented that the trial court's counsel fee analysis also took into consideration Defendant's actions which were found to be just short of bad faith.  For example, although all of the experts involved in the case recommended that the child continue with a therapy regiment, Defendant continually made therapy a point of contention asserting that Plaintiff had not kept him fully apprised of the child's treatment.  However, during the trial, approximately 80 emails showed that Plaintiff kept Defendant informed about the child's therapy and even notified him of the child's evaluations during which Defendant was present.

The Decision also completes an analysis of the financial factors involved in an award of counsel fees noting that the trial Court correctly based the award based partly on need and also on plaintiff's good faith and defendant's borderline bad faith which underscores the balancing of all factors contained in the Court Rules in determining an award of counsel fees.  Notably, the Appellate Division also accepted the trial court's use of the New Jersey Child Support Guidelines in apportioning the counsel fees incurred by both parties.  The trial court had combined the total counsel fees incurred by both parties and attributed responsibility based upon the parties proportionate incomes.  The Appellate Division found that the calculation was appropriate since the trial court also completed an analysis of the other factors applicable in awarding counsel fees.

While the trial court's award of counsel fees was affirmed, the requirement that Defendant pay the award in 24 monthly installments subject to a late sanction of $100 per day was reversed because (1) there was no evidence presented that Defendant had the ability to make the payments within 24 months; (2) Defendant was not in any violation of the Court's counsel fee Order as he immediately filed a Motion for Reconsideration after the Court awarded $68,000 in counsel fees; and (3) the trial Court failed to explain how it arrived to a $100 per day sanction making the sanction a punishment and arbitrary.  The Appellate Division directed that the issues be returned to the trial court for consideration of an appropriate payment plan for payment of the counsel fee award.

Finally, the Appellate Division affirmed the trial court's $1,500 counsel fee award resulting from the Motion for Reconsideration and Plaintiff's Motion to enforce litigant's rights noting that the Court awarded the fees but because the Plaintiff's application was necessitated by defendant's failure to abide by the Court's Order and because the award was not excessive citing precedent decisional law.

With respect to the coordinator fees, the Appellate Division rejected the Defendant's contention that Plaintiff should have to contribute towards the fees since the trial court initially rendered a ruling that Plaintiff pay 40% of the fees.  The Appellate Division noted that the initial order was subject to allocation and that the court may modify, change and amend its prior order to final judgment.  

The Steinbaum v. Campbell decision shows that presentation of a counsel fee application must be much more comprehensive that relying upon a party's assertion that the other party acted in bad faith.  Winning the case or winning an issue in the case does not translate into an automatic  finding that the other party acted inappropriately nor an automatic award of counsel fees.  Moreover, the counsel fee analysis is multi-faceted and is subject to a balancing of the facts and the factors contained in the Court Rules. 
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