Argila v. Argila

• Decision Date: 19 May 1992
• Citation: 256 N.J.Super. 484,607 A.2d 675
• Parties: Joan ARGILA, Plaintiff-Respondent and Cross-Appellant, v. Charles ARGILA, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 484

256 N.J.Super. 484

607 A.2d 675

Joan ARGILA, Plaintiff-Respondent and Cross-Appellant, v. Charles ARGILA, Defendant-Appellant and Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Argued April 14, 1992.

Decided May 19, 1992.

Michael J. Stanton, Somerville, for defendant-appellant and cross-respondent Charles Argila (Schachter, Trombadore, Offen, Stanton & Pavics, attorneys; Michael J. Stanton, of counsel and on the brief).

Jean R. Campbell, Woodbridge, for plaintiff-respondent and cross-appellant Joan Argila (Wilentz, Goldman & Spitzer, attorneys; David M. Wildstein, of counsel; Noel S. Tonneman, on the brief).

Before Judges MICHELS, HAVEY and CONLEY.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Defendant Charles Argila appeals and plaintiff Joan Argila cross-appeals from a judgment for counsel fees of the Chancery Division, Family Part, that directed defendant to pay plaintiff's attorneys Wilentz, Goldman & Spitzer, counsel fees in the amount of $55,250.

Briefly, in August 1987, plaintiff instituted this divorce proceeding by an order to show cause with temporary restraints in the Chancery Division--Family Part. As a consequence, the trial court enjoined defendant from entering the marital home and enjoined both parties and co-respondent, defendant's alleged paramour, from harassing, assaulting or threatening each other or dissipating the marital assets. Plaintiff then filed a complaint for divorce on the grounds of extreme cruelty, adultery and physical abuse. In October 1987, the trial court issued a pendente lite order (1) again enjoining plaintiff, defendant and co-respondent from harassing each other; (2) directing defendant to pay $300 per week in pendente lite support for plaintiff and the three minor children born of the marriage; (3) directing defendant to maintain certain insurance and pay other expenses; (4) setting visitation, and (5) ordering defendant to permit plaintiff to inspect certain financial records and to pay a $1,500 retainer for plaintiff's accountant.

Over approximately the next two years, the parties engaged in extensive discovery proceedings. By November 1988, the parties reached a settlement agreement regarding custody and visitation of the minor children, which was incorporated into a Final Judgment for Custody and Visitation. Plaintiff was given sole physical, residential and legal custody of the three minor children. Thereafter and throughout 1989, numerous motions seeking an increase in the pendente lite support and enforcement of the court's prior orders and judgment were filed. In November 1989, the trial court entered a case management order compelling defendant to provide certain discovery and documents relating to his numerous medical and real estate partnerships and other financial investments. After several court appearances, the parties resolved all issues regarding the property settlement, with the exception of counsel fees. In April 1990, the oral settlement agreement was placed on the record, and finally, in October 1990, a written agreement incorporating the settlement was executed.

The settlement agreement provided plaintiff in part with essentially the more liquid assets, such as IRAs, bank accounts, investments, valued at $260,000 of which $166,000 is from defendant's IRA; the marital home, valued at $500,000 by plaintiff and $645,000 by defendant and subject to a $245,000 mortgage; her automobile, and most of the furnishings. Defendant retained his medical practice valued at $453,000 by plaintiff and $209,000 by defendant; his Porche & Thunderbird automobiles, and other substantial real estate and medical partnership interests and investments. Additionally, plaintiff alleges that defendant receives $50,000 to $60,000 from his pension and profit sharing plan, and $10,000 to $20,000 in tax refunds. The agreement further provided plaintiff with $70,000 per year in alimony until April 30, 1994, and $60,000 thereafter, and child support of $12,000 per year for each of their children.

Pursuant to the settlement agreement, the parties were to submit to the trial court written certifications regarding counsel fees. In May 1990, plaintiff filed voluminous certifications of services, including those of David M. Wildstein, Esq. and Robert J. Chalfin, CPA, in which plaintiff requested $121,378.56 in counsel fees and an additional $10,819.65 in expert appraisal fees. Defendant and plaintiff exchanged additional certifications, and in October 1990, plaintiff submitted a supplemental certification in which she requested an additional $10,222.35 in counsel fees and $3,000 in expert fees, for a total of $149,183.14. After reviewing the documents, Judge Ross in the Chancery Division, Family Part, found:

After an in-depth and extensive review of the certifications supplied, it is apparent to this court that plaintiff's charge of more than $149,000.00 is not a reasonable amount.

Due, in part, to the number of conferences, the large number of personnel involved in this matter and the apparent overuse of certain staff members this court finds the plaintiff's counsel fee request to be inflated. Therefore, this court sets plaintiff's counsel fees at $85,000.00.

Said figure was derived at by noting that, although this, matter was extremely complex, the plaintiff has not met its burden of proving to the court that said request has met and satisfied the reasonableness standard.

It is for the above reasons that this court sets the lower counsel fee.

The trial court then considered to what extent defendant was responsible for plaintiff's fees, commenting:

When deciding to what extent a party is entitled to contribution from the other party for counsel fees and costs, courts have focused on many factors. The three most often articulated factors include: (a) the applicant's needs; (b) the financial ability of the spouse to pay; and (c) the applicants good faith in instituting or defending the action.

In varying degrees, courts have also noted these additional factors: (a) the complexity of the case; (b) the equality of financial positions between the parties; (c) the spouses' respective share in the equitable distribution of the marital assets; and (d) the applicants' share in the equitable distribution process and the liquidity and value thereof.

Additionally, the fact that the wife had received a fair share of the marital property does not preclude the trial court from awarding counsel fees and costs. Shaffer v. Shaffer, 154 N.J.Super. 491 (App.Div.1977). If the wife's share of the marital property is substantial, she presumably would have ample funds to pay her respective litigation expenses and that circumstances could play a part in deciding whether and how much of a counsel fee should be awarded. Id. at 295 [495, 381 A.2d 1221].

After a review and a comparison of the parties' respective shares in the equitable distribution of the parties' assets, this court finds that the defendant shall be responsible for sixty-five percent (65%) of the plaintiff's counsel fees. The defendant shall be responsible for $55,250.00 of the $85,000.00 amount set by this court.

More specifically, the defendant's ability to pay and his share of the marital assets decisively place him in a superior position to carry a portion of the plaintiff's counsel fee burden.

Additionally, the defendant maintains a distinctive ability to pay due, in part, to his future earning powers. In comparison, the plaintiff has "fixed" monthly "earnings" in the form of alimony and child support.

Further, the defendant and the plaintiff were both afforded assets through equitable distribution which will allow for the payment of their respective counsel fees.

In conclusion, this court directs the defendant to share in the plaintiff's counsel fees in the amount of $55,250.00 which represents a sixty-five percent (65%) share of the total $85,000.00 set by this court. Said sum to be payable within 90 days from the date of this order.

Thereafter, in March 1991, the trial court awarded plaintiff $55,250 for counsel fees. Defendant appealed and plaintiff cross-appealed.

Defendant seeks a reversal of the judgment for counsel fees, contending that the trial court's "award of counsel fees was excessive both in terms of the total fee allowed and the percentage to be paid by the defendant and therefore constitutes an abuse of discretion." Defendant contends that the $85,000.00 level set by the trial court was unreasonable given plaintiff's financial position and her bad faith. He argues that plaintiff's requests for fees were inflated due to: (1) double billing; (2) extensive conferences among staff; (3) extraordinarily high number of telephone conferences between the attorneys, staff and plaintiff; (4) extraordinary amount of time spent for trial preparation by associates who were not involved when the matter was called to trial; (5) double billing regarding the certification of services; (6) paralegal and support staff fees of $12,488.00, and (7) costs of overhead, such as secretary overtime, meeting expenses, Lexis, etc.

Plaintiff contends that the trial court abused its discretion by reducing the award to $85,000.00, claiming that the trial court's decision was based on "unreported reasons" and was "not supported by the record." Plaintiff further contends that "the trial court abused its discretion by compelling the defendant to pay only 65% of plaintiff's counsel fees" given defendant's bad faith, the discrepancy in earning capacity between the parties and the trial court's failure "to adequately consider the nature and extent of the distributed assets." Plaintiff argues that the additional expense of any "de minimis overlap of attorney time" was "insignificant" from a cost effective perspective and that the complexity of the case necessitated delegation.

We have carefully considered the record and the arguments presented and are satisfied that the trial...