The opinion
NOT FOR PUBLICATION WITHOUT THE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-3143-20
DONNA MACRI FATOVIC,
Plaintiff-Respondent/
Cross-Appellant,
v.
DAMIR FATOVIC,
Defendant-Appellant/
Cross-Respondent.
________________________
Argued December 19, 2023 – Decided January 9, 2024
Before Judges Mayer, Enright and Paganelli.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1782-18.
Robert A. Skoblar argued the cause for appellant/cross-
respondent (Skoblar Law, PC, attorneys; Robert A.
Skoblar, on the briefs).
Bonnie C. Frost argued the cause for respondent/cross-
appellant (Einhorn, Barbarito, Frost & Botwinick,
attorneys; Bonnie C. Frost, Matheu D. Nunn and Jessie
M. Mills, on the briefs).
PER CURIAM
In this highly contentious divorce case, defendant Damir Fatovic appeals
from a March 10, 2021 judgment of divorce (JOD) and a June 11, 2021 amended
JOD (AJOD). Plaintiff Donna Macri Fatovic cross-appeals from an October 29,
2021 order granting her a $25,000 counsel fee award, arguing the award is
inadequate. We affirm the challenged judgments and order, substantially for the
reasons set forth by Judge Darren T. DiBiasi in his well-reasoned oral opinions.
I.
Because we write for the parties, we need only summarize the relevant
factual and procedural history of this matter. In June 1998, two days before the
parties wed, they entered into a prenuptial agreement (PNA). The PNA stated,
in part:
It is the intention of the parties in entering into
this Agreement that in the event of an end to the[ir]
marriage[,] . . . their rights shall be fixed in
advance . . . . It is their intention to avoid litigation and
intrusion into their professional and personal lives,
which would perhaps otherwise occur if this Agreement
had not been entered into. . . .
It is the intention of the parties to create limited
joint property during the marriage. The joint property
to be created shall be confined to any joint checking
account maintained by the parties and gifts given to the
parties jointly. With the exception of these assets, all
other property acquired by either party shall be
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2
considered their sole and separate property unless title
is placed in joint names.
[(Emphasis added).]
The parties also agreed under the PNA: (1) each party's premarital
property would "remain the separate property of the respective parties"; (2) each
party's earned income during the marriage would be "joint marital property," but
plaintiff was entitled to retain "income realized by [her] from gifted, inherited[,]
or premarital assets"; and (3) if the marriage ended, defendant waived any right
to alimony, but plaintiff could receive alimony if she was the "primary
caretaker" for any children born of the marriage, and "the parties mutually . . .
agree[d] that [she] should discontinue her employment."
The parties remained married for almost twenty years and had two
children together, a daughter, born in 2001, and a son, born in 2008. On
February 11, 2018, plaintiff obtained a temporary restraining order (TRO)
against defendant. Defendant obtained a TRO against plaintiff two days later.
Within a week, the parties dismissed the TROs and entered into a consent order
providing for mutual civil restraints. Also in February 2018, plaintiff filed a
complaint for divorce.
In November 2018, the parties and their counsel executed a confidentiality
agreement (CA). The CA limited the ability of defendant and his attorney to
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3
review certain financial and private information plaintiff deemed confidential,
including information:
[R]elating to and/or involving [her] non-marital/gifted/
inherited/entities in Trust (specifically the Donna Macri
Fatovic Trust and the Macri Complete Trust) and any
and all financial holdings non-marital and of any Trust,
including but not limited to accounts, financial
statements, real property, investments and the like.
Two months later, the parties signed another agreement entitled,
"Agreement Regarding Certain Issues." Under this agreement, defendant
withdrew "any claim he ha[d] to review and/or obtain information about the
Macri Complete Trust," and both parties agreed not to "seek alimony or any
other form of spousal support from [each] other." Contemporaneously, the
parties executed a Custody and Parenting Agreement (CPA). The CPA provided
they would have joint legal custody of the children and "share physical custody"
based on "a flexible parenting time schedule for the children's benefit," without
designating either party as the parent of primary residence.
Although the parties successfully resolved many of their matrimonial
issues, they continually argued over discovery matters. In July 2019, the judge
then assigned to the parties' case entered an order denying plaintiff's motion to
quash various subpoenas issued by defendant's counsel. But the judge also
directed that documents submitted in response to defendant's subpoenas would
A-3143-20
4
be held by his attorney "to ensure . . . no discovery [wa]s provided to [d]efendant
that the parties agree[d wa]s not discoverable" "or that [wa]s subject to [the
CA]," including the Macri Complete Trust. Additionally, the judge granted
defendant's motion to compel plaintiff to "file a complete updated Case
Information Statement [(CIS)], with all required attachments, disclosing any and
all accounts she h[eld] . . . exclusive of the Macri Complete Trust." Further, the
judge directed defendant to file an updated CIS and that both parties "answer
any discovery deficiencies."
Months later, during intensive settlement conferences (ISCs) on October
29, and November 14, 2019, the parties resolved additional financial issues. On
October 29, 2019, they agreed to divide proceeds from the sale of the former
marital home, with defendant receiving fifty-six percent of the proceeds and
plaintiff receiving forty-four percent of the proceeds, after the parties deposited
$40,000 from the sale proceeds into their son's 529 account. Counsel for the
parties also stated during the October 29 ISC that both parties agreed to waive
"all credits" each claimed against the other, except for an "ALCA account,"1
which remained in dispute. During questioning by Judge DiBiasi, the parties
1
The ALCA account also is referenced in the record as the "ALKA" or "Alka
account."
A-3143-20
5
represented to the judge they: understood the oral agreement; were voluntarily
entering into it; had enough time to consider its terms; were satisfied with their
attorney's services; and understood that "by committing to the[] terms [of the
agreement]," they were "waiving [their] right to have a trial on th[o]se issues."
During the November 14, 2019 ISC, with the assistance of counsel and
the court, the parties orally agreed to equally divide the ALCA account, which
was worth less than $3,000. They also agreed to share responsibility for marital
tax debts and certain expenses associated with the former marital residence.
Before the ISC concluded, the parties confirmed to Judge DiBiasi that they
entered into the oral agreement voluntarily; they were not "under the influence
of any substances" that would affect their ability "to think clearly"; they had
sufficient time to consult with their attorneys about the agreement; and were
satisfied with their attorneys' services. The judge then directed "counsel to draft
a [marital] settlement agreement [(MSA)] incorporating all of the[] terms"
agreed upon between the parties to date and ordered the parties to return to court
the following month.
The parties never signed an MSA following the November 2019 ISC. In
March 2020, defendant's fourth attorney moved to be relieved as counsel over
defendant's objection. Judge DiBiasi granted counsel's application immediately
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6
following argument on May 22, 2020, finding defendant not only breached his
retainer agreement, but his relationship with his attorney was "broken."
However, the judge also informed defendant "if [he] wish[ed] to retain an
attorney, [he] ha[d] time" to do so prior to trial.
Considering the parties' inability to agree on the form and entry of an
MSA, Judge DiBiasi entered an order on June 5, 2020, setting forth the terms of
the parties' oral agreements from the October and November 2019 ISCs. The
judge's order also gave the parties ten days to submit a list of the remaining
issues they believed had to be tried.
Less than two weeks later, the parties virtually appeared for a pretrial
conference. At the hearing, Judge DiBiasi acknowledged receiving the parties'
lists of trial issues and noted defendant's list was fifteen pages long, "single-
space[d and in] small font." Judge DiBiasi told defendant he was "a little
overwhelmed" by defendant's list, and "having a tough time reconciling
[defendant's stated] objective to . . . avoid a trial," considering defendant's
lengthy "list of requests." Before concluding the hearing, the judge encouraged
the parties to continue trying to resolve their outstanding issues.
The parties virtually appeared in court again in June 2020, after defendant
submitted a pared-down list of trial issues to Judge DiBiasi. At the hearing,
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7
defendant disputed that he waived certain credits during the October and
November ISCs. Accordingly, the judge took a brief recess to review the record
from the ISC hearings. Following his review, the judge confirmed to the parties
that during the October and November 2019 ISCs, plaintiff's attorney "state[d]
on the record that part of the settlement was the waiver of all credits. And
[defendant's attorney] echoed that understanding, and added some important
language that it was not just [defendant] who was waiving credits . . . . It was a
mutual waiver of credits." Therefore, the judge instructed the matter would
proceed to trial on July 6, 2020, and if defendant "attempt[ed] . . . to bring up
the credits again" at trial, the judge was "going to remind [him] that the credits
[we]re waived."
On June 22, 2020, the judge issued a case management order (CMO),
scheduling the trial for July 6 and 9, 2020. The CMO also provided: "the parties
mutually waived their rights to request credits from the other party during the
October 29 . . . and November 13, 2019 settlement conferences. The court will
not hear testimony as to this issue."
Three days after the judge entered the CMO, and less than two weeks
before the trial was scheduled to commence, Robert Skoblar, Esq. 2 wrote to
2
Skoblar represents defendant on this appeal.
A-3143-20
8
Judge DiBiasi, seeking to adjourn the trial "for at least four weeks" to allow
Skoblar to represent defendant. Skoblar stated he had "many prior
commitments" and could "only agree to become involved" on defendant's behalf
if the judge granted the adjournment. Judge DiBiasi denied the adjournment
request.
When the parties virtually appeared for trial on July 6, defendant argued
plaintiff's July 5, 2020 CIS was incomplete because she listed the values of
certain assets on her CIS as "TBD," meaning the value had yet "to be
determined." Defendant asked the judge, "should I be including my personal
accounts [on my CIS] if she's not?" Plaintiff's counsel responded that defendant
"ha[d] received voluminous . . . documents with regard to the[] accounts in
question. So therefore, if [defendant] want[ed] to know what the account
balances were, he certainly c[ould] go look them up himself." The judge
interjected that he understood there was "a stipulation [the parties would]
divide . . . marital accounts [equally]." He later explained, "I would have
intervened earlier about some of the confusion regarding the TBD [references
in plaintiff's CIS]. But . . . the focus is . . . regarding marital accounts. That's
what need[s] to be divided, not exempt accounts."
A-3143-20
9
Following this discussion, defendant placed a global settlement offer on
the record to resolve the parties' remaining financial issues. Judge DiBiasi
acknowledged it "was a good-faith settlement offer." However, plaintiff did not
accept or reject the offer. Instead, she asked for additional time to consider it.
With Judge DiBiasi's assistance, the parties continued their virtual
settlement discussions on July 9, and July 27, 2020, and reached a resolution on
a myriad of issues, including an agreement to waive child support payments
from each other. After eliciting testimony from the parties, the judge found the
parties: understood the terms of this most recent agreement; entered into it
voluntarily; and understood they were waiving their right to a trial on any issues
resolved under the July 2020 agreement.
On August 12, 2020, Judge DiBiasi executed another CMO. The CMO
stated, "[t]he parties . . . substantially resolved all outstanding issues. The
[c]ourt [will be] incorporating the settlement terms into a [JOD]." Additionally,
the CMO stated the trial would begin on September 8, 2020, and Judge DiBiasi
would "hear limited testimony" on four remaining equitable distribution issues:
(1) whether plaintiff's TD Bank ITF checking account was a marital asset subject
to equitable distribution; (2) how to equitably distribute airline miles and credit
card points acquired during the marriage; (3) whether plaintiff's 2017 and 2018
A-3143-20
10
restricted cash units (RCUs) were subject to equitable distribution; and (4)
whether certain retirement accounts held by defendant were subject to equitable
distribution.
Five days prior to the September 8 trial date, rather than file a formal
motion, defendant sent a four-page email to Judge DiBiasi, seeking relief on
various issues. For example, he requested time to serve subpoenas on plaintiff's
employer and TD Bank, and an adjournment of the trial so defendant could
"gather the missing information." He also asked Judge DiBiasi to order plaintiff
"to provide an accurate and complete CIS," alleging she "answer[ed] 'TBD'
down the line to the questions" on her CIS and "le[ft] out accounts and assets."
The trial proceeded as scheduled on September 8, 2020. It continued over
several days but did not conclude until January 2021, even though the parties
were the only witnesses to testify. Plaintiff was represented by counsel at trial;
defendant was self-represented.
During plaintiff's testimony, she provided documentation for, and testified
about, her TD Bank ITF account. She also testified regarding accrued points on
various credit cards, identifying how many points were awarded premaritally,
and the conditions attendant to using the points. Further, she testified about the
RCUs she received from her then employer, Avis Budget Group (ABG), when
A-3143-20
11
the RCUs vested, and the terms under which she was entitled to receive the
RCUs in her position as real estate counsel staff attorney for ABG. Following
plaintiff's testimony about her TD Bank ITF account, defendant conceded this
account was exempt from equitable distribution.
Defendant's testimony centered around claims his Vanguard Roth and
Vanguard Traditional IRAs were premarital and thus, exempt from equitable
distribution. However, shortly before the trial concluded, defendant advised
plaintiff and Judge DiBiasi that defendant "was mistaken and had misidentified
his account numbers." Defendant explained "he confused [a] previously
stipulated marital retirement account . . . with [his] Vanguard Roth IRA . . . .
[and now] concede[d] that the Vanguard Roth IRA ending in 940 [wa]s . . . a
marital account . . . subject to equitable distribution." This concession left Judge
DiBiasi to determine whether defendant's "Vanguard Roth IRA ending in 322
and Vanguard Traditional IRA ending in 4939" were subject to equitable
distribution.
On March 10, 2021, Judge DiBiasi placed his decision on the record
regarding the parties' four trial issues. He prefaced his decision with the
following remarks:
This case has a long and tortured history.
Litigation . . . lasted three years. The parties conducted
A-3143-20
12
extensive discovery, engaged in . . . voluminous motion
practice, attended approximately ten mediation
sessions, participated in multiple and partially
successful [ISCs], and ultimately tried several issues to
conclusion. Civility does not exist between the parties.
The record is replete with venom, insults[,] and
contempt. Their anger permeated the courtroom[] and
penetrated the [Z]oom screen. It was palpable and self-
destructive. They have an unhealthy and toxic
relationship. The fractured procedural history reflects
this toxicity.
After recounting the litigation's procedural history and the parties' pretrial
agreements, the judge stated that their agreements and a decision he rendered on
"a midtrial motion" would be incorporated into the JOD, so the parties would
"have one document to which [they could] refer" in the future. The judge also
addressed defendant's claim that defendant's limited "ability to access certain
discovery as a self-[]represented litigant prevented him from effectively
representing himself." Judge DiBiasi emphasized he had discussed this very
"argument on the record multiple times, but it b[ore] repeating." The judge then
stated he was "confident . . . defendant had access to all the necessary
information and documents he needed to adequately represent himself on the
four limited trial issues."
Turning to his decision on the four trial issues, the judge found: (1)
plaintiff proved her ITF checking account was premarital and thus, exempt from
A-3143-20
13
equitable distribution; (2) plaintiff owed defendant $1,145.50, plus an additional
$250 for his share of her marital credit card points and airline miles,
respectively; (3) plaintiff owed defendant $1,6663 for his one-half share of the
marital portion of her 2017 RCUs; and (4) because defendant failed to show his
retirement accounts ending in 332 and 4939 were not commingled during the
marriage or were otherwise exempt, the marital portion of those accounts were
to be equally divided between the parties.
The judge further observed defendant's testimony about his retirement
accounts was "confusing and unpersuasive." Additionally, the judge stated he
"was surprised that [defendant] didn't better understand his own account history"
because "[t]hese were his accounts[ and defendant] was in the best position to
explain the account history to the court." The judge entered a conforming JOD
that day, and incorporated the parties' prior oral and written agreements into the
judgment as he stated he would.
3
This amount was subsequently adjusted in the JOD and AJOD to reflect
plaintiff owed defendant $2,111.76 for his share of this asset.
A-3143-20
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The parties subsequently moved for clarification or modification of the
JOD. Judge DiBiasi granted in part, and denied, in part, their applications in an
order dated June 11, 2021, and then entered the AJOD the same day.4
Three months later, each party moved for an award of counsel fees from
the other party. Defendant sought fees totaling $174,689.68; plaintiff requested
$480,000 in counsel fees. Following argument on October 29, 2021, during
which both parties were represented by counsel, Judge DiBiasi orally granted
plaintiff $25,000 in counsel fees, and declined to award defendant any counsel
fees. In explaining his decision on the record, the judge stated:
Now, this is a matter with a [PNA] that addressed
alimony, a negotiated [fifty/fifty] parenting plan, no
child support, and relatively straight[]forward equitable
distribution [issues]. Nevertheless, closure
required . . . ten mediation sessions, five [ISCs] with
the court, [several] days of trial, and many, many
formal applications. [Litigation] lasted over a thousand
days. . . .
The parties have incurred nearly [one] million
[dollars] in legal fees—let me repeat, [one] million
[dollars]. It's an incomprehensible amount of money.
The parties are successful but they're not necessarily
wealthy.
4
Because the clarifications and modifications set forth in the AJOD do not
affect our decision, we do not address them.
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. . . The court relentlessly tried to stop this
madness. It failed. . . . Even [c]ounsel tried to stop t[he
parties]. They also failed.
The parties' decisions have consequences. In this
case, the consequences add up to hundreds and
hundreds of thousands of dollars . . . . They must own
that. No motion can repair what the parties have
broken. This is quite simply the worst case with the
worst behaved litigants over which I have presided in
my nearly five years in the Family Division, and it was
all completely avoidable.
Next, the judge acknowledged he was authorized to award counsel fees
pursuant to Rules 4:42-9 and 5:3-5, and N.J.S.A. 2A:34-23. After finding the
hourly rates of counsel were reasonable, the judge referenced the factors set
forth under Rule 5:3-5(c), and stated:
[B]oth parties are earning approximately similar
level[s] of incomes, although their income[s have]
fluctuated recently. They each received about . . .
$100,000 or so[] from the sale of the marital residence.
They each have retirement accounts. Plaintiff is the
beneficiary of [a] Trust. I'm not precisely sure the
extent to which she receives distributions from that
Trust[,] but the court is aware that there are
distributions that exist and that does put her in a
stronger financial position than [defendant].
. . . The parties are both successful professionals.
They each have the ability to afford reasonable attorney
fees in connection with common sense matrimonial
litigation, but that's not what happened here. The
parties spent an unhealthy amount of their income and
assets on this litigation.
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So, while each party is able to perhaps contribute
to the other party's fees, neither party is in a position
certainly to pay all of those fees. They're just too high.
They're too high.
....
Now, here, to be perfectly clear, both parties
contributed to this toxic litigation. Neither party has
clean hands. I am confident of that finding. Their
behavior more often than not was shocking and
embarrassing. . . . They were just as disrespectful in
the courtroom as they were over Zoom. Grievances
consume them.
. . . The court has never experienced anything
quite like them. The economic issues [we]re relatively
straight forward but resentment and anger prevented the
parties from quickly striking common-sense
solutions. . . .
The spirit and intent of the settlement
conferences was to end the litigation [and] to obtain
closure, but that never happened[,] and the court finds
that the defendant is primarily responsible for this
outcome. He tried to renegotiate the settlement. He
made it impossible to finalize the [MSA]. Defendant
tried to reneg[e] and presented a [fifteen]-page, single-
spaced list of outstanding issues. The court finds that
to be in bad faith.
Defendant then demanded trials on issues that he
primarily lost on. Plaintiff is not perfect. Both parties
were disrespectful to the court, to counsel, and to each
other but plaintiff is not primarily responsible for how
the litigation ended.
....
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. . . Here, plaintiff has indicated [she] . . . paid
over $480,000 in counsel fees. Defendant . . . paid
nearly $200,000 but has a substantial balance that he
owes of another $200,000. That balance will linger
with him for some time. It's a significant obligation that
is outstanding.
With respect to the results obtained, plaintiff
primarily succeeded on the issues that the parties
decided to try to conclusion. And the degree to which
[fees] were incurred to enforce existing orders or to
compel discovery, there was voluminous prejudgment
motion practice in this case by both parties.
So, . . . in light of the court's analysis of the
factors set forth in . . . Rule 5:3-5[(c)], the court
finds . . . defendant shall pay plaintiff counsel fees in
the amount of $25,000 and shall pay those fees within
[thirty] days.
[(Emphasis added).]
II.
On appeal, defendant argues Judge DiBiasi erred in: (1) denying
"defendant's application to retain counsel for the trial"; (2) failing to compel
plaintiff "to serve a meaningful [CIS]"; (3) "limit[ing] the issues to be tried on
the basis of a partial settlement which did not exist"; and (4) "awarding
[plaintiff] counsel fees[,] given her lack of good faith throughout the
proceedings." Additionally, defendant contends for the first time on appeal the
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judge "demonstrated a general bias against [him] which resulted in an unjust
judgment."
Plaintiff disagrees with defendant's contentions and argues he "is
procedurally barred from appealing an[y] issue upon which he previously
agreed . . . [because] he does not allege unconscionability, fraud, or
overreaching." She also argues on cross-appeal that Judge DiBiasi "abused [his]
discretion and failed to consider the extent of defendant's bad faith when [the
judge] limited plaintiff's counsel fee award to only $25,000 out of the $480,000
she incurred."
The parties' arguments lack merit. R. 2:11-3(e)(1)(E). We add the
following comments.
Our review of a Family Part order is limited. See Cesare v. Cesare, 154
N.J. 394, 411 (1998). Appellate courts "review [a] Family Part judge's findings
in accordance with a deferential standard of review, recognizing the court's
'special jurisdiction and expertise in family matters.'" Thieme v. Aucoin-
Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare, 154 N.J. at 412). Such
deference is particularly proper "when the evidence is largely testimonial and
involves questions of credibility." Cesare, 154 N.J. at 412 (quoting In re Return
of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
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"Thus, 'findings by the trial court are binding on appeal when supported
by adequate, substantial, credible evidence.'" Thieme, 227 N.J. at 283 (quoting
Cesare, 154 N.J. at 413). "Only when the trial court's conclusions are so 'clearly
mistaken' or 'wide of the mark' should we interfere." Gnall v. Gnall, 222 N.J.
414, 428 (2015) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88,
104 (2008)). However, we review legal issues de novo. Ricci v. Ricci, 448 N.J.
Super. 546, 565 (App. Div. 2017).
Appellate review is not limitless. "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." State v. Robinson, 200 N.J. 1,
19 (2009); see also Zaman v. Felton, 219 N.J. 199, 226-27 (2014). Accordingly,
we need not consider arguments which were not raised in the trial court.
Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Similarly, we do not consider arguments raised for the first time in reply
briefs. Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590,
596 (App. Div. 2001). Also, "claims not addressed in [a party's] merits brief
[are] deemed abandoned." Pressler & Verniero, Current N.J. Court Rules, cmt.
5 on R. 2:6-2 (2023) (citing Drinker Biddle & Reath LLP v. N.J. Dep't. of Law
A-3143-20
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& Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011)). Moreover, to the
extent we review an argument raised for the first time on appeal, we do so under
a plain error standard, meaning we disregard such errors unless "clearly capable
of producing an unjust result." R. 2:10-2.
Regarding defendant's first argument—which is mistakenly framed as a
denial of counsel issue rather than denial of his belated request for an
adjournment days before the divorce trial was due to begin—it is well settled
that a "trial court's decision to grant or deny an adjournment is reviewed under
an abuse of discretion standard." State ex rel. Comm'r of Transp. v. Shalom
Money St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013). Thus, we will not
reverse the denial of an adjournment request to allow a party to retain counsel
of their choosing "absent a showing of an abuse of discretion which caused [the
party] a 'manifest wrong or injury.'" State v. Hayes, 205 N.J. 522, 537 (2011)
(quoting State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div. 1998)). In
deciding whether to grant a request for an adjournment to enable a party to retain
successor counsel, "the trial court must strike a balance between its inherent and
necessary right to control its own calendar and the public's interest in the orderly
administration of justice, on the one hand," and a party's right to have sufficient
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21
time to retain that party's choice of counsel. Id. at 538 (quoting State v.
Furguson, 198 N.J. Super. 395, 402 (App. Div. 1985)).
Here, we are satisfied the judge did not abuse his discretion in denying
defendant's June 25, 2020 adjournment request. As noted, defendant made this
request days before the trial was to commence on July 6, 2020, despite the fact
he had sufficient time to retain counsel after Judge DiBiasi granted his trial
attorney's motion to withdraw from the case in May 2020. Moreover, defendant
fails to explain why he could not have retained counsel between May 2020 and
September 8, 2020, the date the trial began.
Turning to defendant's second argument, we generally "accord substantial
deference to a trial court's disposition of a discovery dispute" and "will not
ordinarily reverse" those decisions "absent an abuse of discretion or a judge's
misunderstanding or misapplication of the law." Brugaletta v. Garcia, 234 N.J.
225, 240 (2018) (quoting Cap. Health Sys., Inc. v. Horizon Healthcare Servs.,
Inc., 230 N.J. 73, 79-80, 165 (2017)). Although our discovery rules are
"construed liberally in favor of broad pretrial discovery," Payton v. N.J. Tpk.
Auth., 148 N.J. 524, 535 (1997), a party's right to discovery is "not unlimited,"
Trenton Renewable Power, LLC v. Denali Water Sols., LLC, 470 N.J. Super.
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22
218, 226 (App. Div. 2022) (quoting Piniero v. N.J. Div. of State Police, 404 N.J.
Super. 194, 204 (App. Div. 2008)).
Further, pertinent to defendant's discovery argument, Rule 5:5-2(a)
provides, in part, "[t]he case information statement required by this rule shall be
filed and served in all contested family actions . . . in which there is any issue
as to custody, support, alimony[,] or equitable distribution." Additionally,
pursuant to Rule 5:5-2(c), parties maintain a continuing obligation to inform the
court of any "material changes in the information supplied on the [CIS]," and
"[a]ll amendments to the [CIS] shall be filed with the court no later than [twenty]
days before the final hearing."
Here, neither party timely filed an amended CIS before the scheduled trial
date of July 6, 2020. Also, both parties were ordered during the pendency of
this matter to cure "discovery deficiencies." However, because the parties
exchanged voluminous discovery prior to trial and resolved numerous issues
pendente lite, leaving Judge DiBiasi to rule on only four discrete issues, we
decline to find the judge erred in failing to order plaintiff to update her July 5,
2020 CIS.
Regarding defendant's contention that Judge DiBiasi erred in "limit[ing]
the issues to be tried," we are mindful New Jersey has a "strong public policy in
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favor of the settlement of litigation." Gere v. Louis, 209 N.J. 486, 500 (2012)
(citing Brundage v. Est. of Carambio, 195 N.J. 575, 601 (2008)). "This policy
rests on the recognition that 'parties to a dispute are in the best position to
determine how to resolve a contested matter in a way which is least
disadvantageous to everyone.'" Ibid. (quoting Impink ex rel. Baldi v. Reynes,
396 N.J. Super. 553, 563 (App. Div. 2007)).
"In furtherance of this policy, our courts 'strain to give effect to the terms
of a settlement wherever possible.'" Brundage, 195 N.J. at 601 (quoting Dep't
of Pub. Advoc. v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (App. Div.
1985)). "In general, settlement agreements will be honored 'absent a
demonstration of fraud or other compelling circumstances.'" Nolan v. Lee Ho,
120 N.J. 465, 472 (1990) (quoting Pascarella v. Bruck, 190 N.J. Super. 118, 125
(App. Div. 1983) (internal quotation marks omitted)).
We also recognize "[a] Family Part judge has broad discretion in . . .
allocating assets subject to equitable distribution," Clark v. Clark, 429 N.J.
Super. 61, 71 (App. Div. 2012), and in determining the manner of distribution,
Steneken v. Steneken, 367 N.J. Super. 427, 435 (App. Div. 2004), aff'd in part,
modified in part on other grounds, 183 N.J. 290 (2005). An appellate court will
affirm an award of equitable distribution provided "the trial court could
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reasonably have reached its result from the evidence presented, and the award
is not distorted by legal or factual mistake." La Sala v. La Sala, 335 N.J. Super.
1, 6 (App. Div. 2000).
We also note that typically, "[a]ny property owned by a husband or wife
at the time of marriage will remain the separate property of such spouse and in
the event of divorce will be considered an immune asset and not eligible for
distribution." Valentino v. Valentino, 309 N.J. Super. 334, 338 (App. Div. 1998)
(citation omitted). The burden of establishing that an asset or any portion
thereof is immune from distribution rests on the party claiming its immunity.
Pacifico v. Pacifico, 190 N.J. 258, 269 (2007).
Here, the record well supports Judge DiBiasi's determination that the
parties reached numerous agreements prior to trial, including agreements
reached during lengthy ISCs, with the benefit of counsel and the judge's
assistance. The record also supports the judge's findings that plaintiff met her
burden in demonstrating certain property was immune from equitable
distribution, whereas defendant failed to satisfy his burden in that regard.
Accordingly, defendant's arguments that the judge erred in concluding the
parties left only four discrete issues for trial, and that the judge abused his
discretion in deciding those four issues, fail.
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Turning to defendant's newly raised bias argument, we recognize "judges
must refrain . . . from sitting in any causes where their objectivity and
impartiality may fairly be brought into question." State v. Deutsch, 34 N.J. 190,
206 (1961). "Any questions concerning that impartiality threatens the integrity
of our judicial process." State v. Tucker, 264 N.J. Super. 549, 554 (App. Div.
1993).
Concerns pertaining to a judge's partiality are generally considered in the
context of whether the judge should be recused from the case. But the decision
about whether recusal is warranted is a matter within the sound discretion of the
judge. State v. McCabe, 201 N.J. 34, 45 (2010); State v. Medina, 349 N.J. Super.
108, 129 (App. Div. 2002). Importantly, a judge cannot be considered partial or
biased merely because of rulings that are unfavorable toward the party seeking
recusal. State v. Marshall, 148 N.J. 89, 186-87 (1997).
Where a litigant fails to file a motion for recusal in the trial court, we
assess the issue under the plain error standard. Medina, 349 N.J. Super. at 129
(citing Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)). As discussed,
under this standard, "[a]ny error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been clearly capable of
producing an unjust result." R. 2:10-2. Here, because defendant's claims of bias
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are not supported by the record, Judge DiBiasi committed no error, let alone
plain error, in failing to recuse himself in this matter.
Finally, regarding the parties' counsel fee arguments, we observe that an
"award of counsel fees and costs in a matrimonial action, rests in the [sound]
discretion of the trial court." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-
45 (App. Div. 1992) (citing Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div.
1990)). Therefore, we will not disturb a counsel fee decision in a matrimonial
matter "absent a showing of an abuse of discretion involving a clear error in
judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010).
"An allowance for counsel fees is permitted to any party in a divorce
action, R[ule] 5:3-5(c), subject to the provisions of Rule 4:42-9." Slutsky v.
Slutsky, 451 N.J. Super. 332, 366 (App. Div. 2017). Additionally, "where a
party acts in bad faith[,] the purpose of the counsel fee award is to protect the
innocent party from [the] unnecessary costs and to punish the guilty party."
Welch v. Welch, 401 N.J. Super. 438, 448 (Ch. Div. 2008) (citing Yueh v. Yueh,
329 N.J. Super. 447, 461 (App. Div. 2000)).
Per Rule 5:3-5(c), family courts must consider the following nine factors
when deciding attorney fee applications:
(1) the financial circumstances of the parties;
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(2) the ability of the parties to pay their own fees or
to contribute to the fees of the other party;
(3) the reasonableness and good faith of the positions
advanced by the parties both during and prior to
trial;
(4) the extent of the fees incurred by both parties;
(5) any fees previously awarded;
(6) the amount of fees previously paid to counsel by
each party;
(7) the results obtained;
(8) the degree to which fees were incurred to enforce
existing orders or to compel discovery; and
(9) any other factor bearing on the fairness of an
award.
In Mani v. Mani, 183 N.J. 70, 94-95 (2005), the Supreme Court
summarized the attorney fee inquiry 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.
[Ibid. (citing Williams v. Williams, 59 N.J. 229, 233
(1971)).]
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"In 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." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div.
2012) (quoting Yueh, 329 N.J. Super. at 464). The court must exclude any hours
billed that are "not reasonably expended" and calculate the reasonable hourly
rate as per community standards. Yueh, 329 N.J. Super. at 465 (quoting Rendine
v. Pantzer, 141 N.J. 292, 335 (1995)).
Governed by these standards, we discern no reason to disturb the
challenged judgments, nor the October 29, 2021 order granting plaintiff a
$25,000 counsel fee award. In reaching this conclusion, we do not condone
plaintiff's inexplicable omissions, nor her use of "TBD" in multiple places in her
July 5, 2020 CIS, rather than monetary figures, including her use of "TBD" for
her personal and total monthly budget. Similarly, we do not sanction her
attorney's pre-trial proposal that because the parties exchanged discovery, if
defendant wanted to know the balances of plaintiff's accounts, "he certainly
c[ould] go look them up himself." Still, considering the parties exchanged
significant discovery prior to trial and resolved all but four equitable distribution
issues, we agree with Judge DiBiasi that "defendant had access to all the
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necessary information and documents he needed to adequately represent himself
on the four limited trial issues."
Likewise, the record well supports the judge's findings that: (1) defendant
acted in bad faith and "made it impossible to finalize the [MSA]"; (2) both
parties "contributed to this toxic litigation"; (3) "neither party ha[d] clean
hands"; and (4) "[t]he economic issues" in this matter were "relatively straight
forward but resentment and anger prevented the parties from quickly striking
common-sense solutions." Accordingly, we affirm the JOD, AJOD, and October
29, 2021 order substantially for the reasons set forth in Judge DiBiasi's
thoughtful and comprehensive oral opinions.
Affirmed.
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