Opinion
DOCKET NO. A-6232-11T2
02-05-2015
NICOLE M. SANTORA, Plaintiff-Respondent, v. JOSEPH SANTORA, Defendant-Appellant.
Appellant Joseph J. Santora argued the cause pro se. Respondent Nicole M. Santora argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Waugh. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-94-10. Appellant Joseph J. Santora argued the cause pro se. Respondent Nicole M. Santora argued the cause pro se. PER CURIAM
Defendant Joseph J. Santora appeals from three provisions of a June 27, 2012 final judgment of divorce (JOD). Specifically, he challenges the court's refusal to continue the pendente lite physical custody arrangements, its award of pendente lite alimony to plaintiff Nicole M. Santora, and the award of counsel fees. Contrary to his assertions, we consider the decisions made by the Family Part judge to be amply supported by both the record and the law and thus affirm.
I
We describe the facts in this section of our decision in general terms, later adding more details as necessary to our discussion of each issue. The parties were married on May 25, 2003, and have two children, a son who was seven, and a daughter who was four, at the time the matter was decided. Plaintiff filed for divorce on December 16, 2009.
During the marriage, plaintiff did not work outside the home. She has not completed her college education, and now works twenty-two hours per week as a waitress and bartender when the children are with defendant. In 2011, she earned $19,510. In rendering her decision regarding the financial issues, the judge found that plaintiff had the potential to earn, and imputed to her, annual income of $26,000 per year. The judge further found that plaintiff's proposed standard of living as set forth in her case information statement (CIS) was unrealistic, and reduced her living expenses accordingly.
Defendant, a New York attorney, is employed by his father's law firm and claimed annual income of some $64,000 per year. Additionally, he was found to have an interest in a business, "Victory Sportswear," from which he earned no additional income and which the judge found had no value.
The court determined that although the parties enjoyed a middle-class standard of living during their six-year marriage, they resided in apartments and, other than a timeshare, acquired no assets. Indeed, while living on defendant's salary, they accumulated significant debt. That debt included $32,000 in consumer debt plus $37,000 on account of their timeshare, which had no equity. Additionally, the parties together had approximately $60,000 outstanding in student loans. As a result, the court equally divided the parties' debt, returning to defendant the vehicle he brought into the marriage which, to that point, had been driven by plaintiff.
The judge also found defendant's CIS expenses unrealistic in light of his financial responsibilities to his former wife and children. She also noted that another adult lived with him who did not contribute to the shared roof expenses.
Pendente lite, the parties shared joint physical custody of the children, although the judge advised defendant at the time the order issued that the arrangement was temporary, "just for the summer." Thereafter, the parties engaged the services of a forensic psychologist to act as a custody expert. He interviewed the family and issued a report recommending that the shared physical custody arrangement continue, adding that the parties' son might benefit from short-term counseling. His second report, dated August 12, 2011, also recommended continuation of a shared custody arrangement.
Because the parties were unable to agree on custody, the judge bifurcated the matter and addressed that issue first. The trial took place over nine days. The judge rendered her decision on January 12, 2012. After exhaustive factual findings, including detailing conflicts between the parents that the judge noted did not advance the children's interest, she declined to interview the parties' son with regard to custody because of his young age.
Although she continued joint legal custody, the judge modified physical custody of these young children to include defendant having an overnight one weekday and alternating weekends. During the alternating weekend, the daughter would return to her mother on Sunday evening, but the son would remain with his father until Monday morning. Although she addressed items such as holidays in her decision, she suggested that the parties, if dissatisfied, could resolve other details through a parenting coordinator. In doing so, the court explicitly rejected the expert's recommendation that the shared custody arrangement continue.
In her oral opinion, the judge reviewed the factors enumerated in N.J.S.A. 9:2-4(c), Beck v. Beck, 86 N.J. 480 (1981), and Pascale v. Pascale, 140 N.J. 583 (1995). Her principal concerns were the parties' ability to cooperate and specific instances during which defendant had engaged in conduct she found problematic. This included defendant not being truthful with regard to his whereabouts, using foul language towards plaintiff during exchanges of the children, and making important decisions without first seeking plaintiff's agreement, much less informing her of them, such as taking the children to the dentist.
In addition to her detailed January 2012 custody decision, the judge issued a seventeen-page written opinion with regard to the dissolution of the marriage, equitable distribution, alimony, child support, and attorney's fees. Calculating child support pursuant to the Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX to Rule 5:6A (2015), the court fixed defendant's child support obligation at $172 per week. Because of plaintiff's reduced roof expenses attributable to her residence in her mother's home, the court reduced the child support award to $107 per week.
Because this was a short-term marriage, despite the disparity in actual and potential earnings, the court awarded $200 per week in alimony for only a period of three years. As the court stated, the statute, N.J.S.A. 2A:34-23(b), allows for a variety of alimony orders. She referenced the relevant section with regard to limited duration alimony, to "address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate." Cox v. Cox, 335 N.J. Super. 465, 476 (App. Div. 2000). The court did not award credits or debits based on prior orders of support, believing them to have been "appropriate" at the time they were rendered and relying on Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (1995).
With regard to counsel fees, the court noted that plaintiff's attorney's supporting certification was not detailed. Plaintiff during her testimony and in her supporting certifications, however, stated that her total fees and costs, including expert fees, came to $149,000. In rendering her decision, the court reviewed Rule 5:3-5(c) and the financial circumstances of the parties as she found them to be.
The court observed that both parties acted in good faith. Defendant, appearing pro se, "sincerely wanted equal parenting time," and was in part driven by his fear that plaintiff would relocate with the children to Florida. She also noted that plaintiff's belief that defendant earned more than she was able to prove drove her to expend very substantial attorney and expert fees when, at the end, she was unable to prove defendant's income was more than his salary. Adding that under Rendine v. Pantzer, 141 N.J. 292 (1995), a reasonable counsel fee should be arrived at using the lodestar, the court also looked at R.P.C. 1.5(a), that a lawyer's fees should be reasonable, and the factors enumerated under that rule. Although the total fee paid by plaintiff was significantly greater than that typically incurred by families with such limited assets and income, the parties engaged in substantial motion practice during the pendency of the trial. The court concluded that defendant had a limited ability to pay and had, while the matter was pending, failed to pay even court-ordered credit card expenses. As a result, despite the absence of a more specific breakdown of fees, the court required defendant to pay $13,000, not dischargeable in bankruptcy. Defendant was not required to satisfy the fee award until after the limited duration alimony term had ended.
Defendant now appeals. These are his points on appeal:
POINT I: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT VIOLATED THE DIRECTIVES OF NEW JERSEY STATUTE 9:2-4(f) WHICH REQUIRES THAT THE COURT "SPECIFICALLY PLACE ON THE RECORD THE FACTORS WHICH JUSTIFY ANY CUSTODY ARRANGEMENT NOT AGREED TO BY THE PARENTS" AND THE TRIAL COURT UTTERLY FAILS TO EVEN MENTION THE OBJECTIVE
OF "BEST INTERESTS OF THE CHILD" OR HOW ANY OF THE TRIAL COURT'S FACTUAL DETERMINATIONS IMPACT ON THE "BEST INTEREST" OF THE CHILDREN HEREIN[.]
A. [Daughter]
B. [Son]
C. Context for the Court's Consideration of the Best Interests of the Children
D. The Court's Consideration of the Enumerated Factors
E. Defendant's Request of Court to Interview [Son]
F. The Ability to Agree
G. The Court's Negative Findings
H. Sports
I. Basketball
J. Kiddie Academy
K. Regarding the only day [Daughter] went to Kiddie Academy Daycare, September 22nd
L. [Friend]
M. Other Negative Findings
N. Infection
O. Respecting Plaintiff's Time
P. Accusations of Filthy House and Causing Illness
Q. Email Seizure
R. Dentist
POINT II: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN REJECTING NOT ONLY REJECTED TWO REPORTS ISSUED BY THE JOINT CUSTODY EXPERT AND THE TRIAL TESTIMONY OF SAID EXPERT, ALL OF WHICH RECOMMENDED "JOINT PHYSICAL CUSTODY", AND BY THE TRIAL COURT'S FAILURE TO REFUTE THE PROFESSIONAL EXPERT ANALYSIS OF THE CUSTODIAL BEST INTEREST PROFFERED BY THE JOINT CUSTODY EXPERT[.]
A. Credentials
POINT III: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING COUNSEL FEES IN THE AMOUNT OF $13,000.00 TO THE PLAINTIFF.
A. Payee Spouse's Need
B. Payor Spouse's Ability to Pay
C. Payee's Good Faith
POINT IV: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING THREE YEARS OF 'LIMITED DURATION' ALIMONY TO THE PLAINTIFF.
POINT V: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT GRANTED PENDENTE LITE ALIMONY OF $135 PER WEEK SUA SPONTE[.]
II
An appellate court ordinarily accords great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, a judge's purely legal decisions are subject to plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
With regard to custody, the statute requires that the court consider multiple factors in determining the best interests of the children. See N.J.S.A. 9:2-4(c). Judges are required to place on the record, as the judge did here, the factors it considers consequential in reaching its custody decision. N.J.S.A. 9:2-4(f); Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986).
Courts have broad discretion in making custody determinations. Beck, supra, 86 N.J. at 485. When parents divorce and cannot agree on fundamental issues regarding their children's care and custody, "the court becomes the default decision maker." Fawzy v. Fawzy, 199 N.J. 456, 476 (2009). A trial judge facing the sensitive and difficult decision with regard to custody must decide what arrangements "foster" healthy parent-child relationships. Nufrio v. Nufrio, 341 N.J. Super. 548, 550 (App. Div. 2001).
In reviewing the numerous factors embodied in N.J.S.A. 9:2-4(c), the judge expressed concern over the lack of cooperation between these parents. She then noted defendant's problematic behaviors, including lying and making unilateral decisions such as giving the son a cell phone or signing up the daughter for preschool.
This concern no doubt weighed heavily in the judge's decision to reject the experts' recommendation, a decision we review under an abuse-of-discretion standard. There simply was no practical way, without harming the children, that the physical custody arrangements could be continued given the likelihood it would only result in more conflicts between the parents. The court further noted that defendant, during the course of the trial, cross-examined plaintiff twice about being thirty minutes late on one occasion. We agree with the court's conclusion that defendant's conduct does not make him "susceptible to getting along with" plaintiff.
We also agree with the judge that the children's preference, given their young age, was not relevant. The judge clearly considered each parent to be well-qualified to care for the children. She weighed defendant's inability to cooperate with plaintiff, and differences in parenting style that would necessarily lead to conflicts, heavily in her analysis. We therefore disagree with defendant's contention that the trial judge's decision was based on a superficial recitation of the statutory factors.
The judge clearly had the children's best interests in mind, and alluded to specific instances of conduct that she felt supported her conclusion as to custody. We will not discuss defendant's excessively detailed claims questioning the judge's custody decision as we, in light of our deferential review of a family court judge's findings, and in light of her thoughtful articulation of each and every one, conclude defendant's claims have no merit and do not warrant further discussion. R. 2:11-3(e)(1)(E).
III
It is well established that:
A trial court's findings regarding alimony should not be vacated unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.
[J.E.V. v. K.V., 426 N.J. Super. 475, 485 (2012).]
There are four types of alimony: permanent, limited duration, rehabilitative, and reimbursement. N.J.S.A. 2A:34-23(b). The purpose of each generally "is to provide the dependent spouse with a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage." Koelble v. Koelble, 261 N.J. Super. 190, 192 (App. Div. 1992).
In deciding a claim for alimony, the court is obliged to take into account the relevant factors pursuant to N.J.S.A. 2A:34-23(b). The standards with regard to limited duration alimony are found in N.J.S.A. 2A:34-23(c). This type of alimony is awarded in marriages of short-term duration where there is an economic need. See Cox, supra, 335 N.J. Super. at 476.
In rendering her decision, the judge discussed a number of factors pursuant to N.J.S.A. 2A:34-23(b). This included defendant's earnings, plaintiff's limited marketable skills, and the fact that during the marriage the parties, in the main, only acquired debt. After making all relevant factual determinations as called for by the statute, the judge correctly concluded that the marriage was short-term and imposed the limited alimony obligation defendant now challenges. In light of the substantial deference accorded to family part judges in the award of alimony, we affirm. See J.E.V., supra, 426 N.J. Super. at 485. There was no clear abuse of discretion. In this case, the parties' short-term marriage warranted an equally short-term transitional period during which defendant, who had been the only wage earner and was, post-separation, the higher wage earner, would assist plaintiff.
Nor do we agree that the judge's award of pendente lite alimony was error. "The allowance of support pendente lite is a matter resting in the discretion of the [trial] court." Curley v. Curley, 37 N.J. Super. 351, 356 (App. Div. 1955) (citing Lasasso v. Lasasso, 1 N.J. 324, 329 (1949) and Waltz v. Waltz, 16 N.J. Super. 119, 123 (App. Div. 1951)).
The award was not made sua sponte by the judge, as defendant claims. It appears to us from our review of the record that there was an application made for pendente lite support by plaintiff as early as February 5, 2010. The application was supported by a certification and CIS dated December 23, 2009. See R. 5:7-2. The trial judge issued an order requiring defendant to pay plaintiff pendente lite alimony of $135 per week in addition to being obligated to make payments towards credit card debt.
In her decision regarding financial matters, the judge noted that defendant had failed to pay some $14,952 in credit card debt. The pendente lite award, made March 12, 2012, issued after the judge's custody decision, and prior to the court commencing that portion of the divorce trial related to the parties' financial status and the dissolution of the marriage itself. In any event, in light of the parties' limited financial resources, the pendente lite order of some three months' duration is not an abuse of discretion.
IV
We now turn to defendant's contention that the $13,000 award in counsel fees was error. As with other decisions rendered by the Family Part, this is subject to appellate review under an abuse-of-discretion standard. Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). An abuse of discretion "arises when a decision is '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) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
The award of attorney's fees is governed by Rule 5:3-5(c), Rule 4:42-9, and R.P.C. 1.5(a). J.E.V., supra, 426 N.J. Super. at 493. Prior to considering the applicable factors, a court must determine whether the party requesting fees is in financial need of the award, whether the party against whom the order is rendered has the financial ability to pay, and whether the party requesting the fees has acted in good faith. Significantly, "[i]n fashioning an attorney fee award, the judge must determine the 'lodestar,' which equals the number of hours reasonably expended multiplied by a reasonable hourly rate." Ibid.; see also Rendine, supra, 141 N.J. at 334-35.
In this case, the court reiterated in her analysis the factors that led her to the conclusion that plaintiff had no ability to pay attorney fees, while defendant had a limited ability to pay. The court found plaintiff's fees disproportionate to the marital assets, but also found that the issue of custody was hard-fought and pursued in good faith.
The judge acknowledged that despite earning three times plaintiff's annual income, defendant had limited ability to pay fees. But defendant's financial situation, in light of his obligation to his children and former wife, required some adjustment to his living expenses.
Although both parties acted in good faith as to custody, the judge did conclude that defendant exhibited a "lack of candor" regarding his business interests, and "recalcitrance at producing bank records" which may have engendered needless expenses on plaintiff's part. Defendant prolonged the litigation by extensive motion practice, although plaintiff had also engaged in futile motion practice. The court found plaintiff's actions to have been "misguided," but not undertaken in bad faith. Relying on Borzillo v. Borzillo, the court explained that bad faith was more than simply displaying poor judgment, rather, it "contemplates a state of mind affirmatively operating with furtive design or ill will." 259 N.J. Super. 286, 292 (Ch. Div. 1992). The court's analysis is meritorious.
The only shortcoming was that no determination was made as to the lodestar for the award. The judge was well aware that plaintiff's total costs and fees were more than ten times the amount she received by way of award, that defendant would not be required to make any payment towards those fees until after termination of his limited duration alimony award, and that the costs and fees included sums paid to experts, such as the custody expert. The court's manner of reaching a decision is a practice not to be encouraged, but where the fees were so disproportionate to assets, and the parties' ability to pay so limited, we will not disturb the family court judge's exercise of discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION