ALEXANDER SIMON VS. DIANA M. BORRERO(FM-18-1006-13, SOMERSET COUNTY AND STATEWIDE)
A-3937-15T2
| N.J. Super. Ct. App. Div. | Jun 30, 2017Background
- Parties divorced in 2013; three children. Post-judgment motions concerned college expenses and related disputes.
- Family Part entered a February 23, 2016 order requiring each party to pay their share of the children’s student loans for room, board, books, and fees, payable within 90 days.
- Family Part entered a May 3, 2016 order awarding defendant $5,000 in attorney fees after cross-motions for fees and costs.
- Plaintiff (Alexander Simon) appealed both orders; appeal of the February 23 order was filed after the 45-day deadline and without a motion to extend.
- The trial judge grounded the fee award on Rule 5:3-5(c) factors and findings that plaintiff refused meaningful communication and was noncompliant with portions of the February 23 order.
- Appellate division affirmed the fee award and dismissed/timed-out the challenge to the February 23 order as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal from Feb. 23 order | Appeal of February 23 order should proceed on merits | Appeal was untimely under R. 2:4-1(a); no extension sought | Appeal of Feb. 23 order is untimely and barred (plaintiff did not seek extension) |
| Award of attorney fees (May 3 order) | Fee award was improper/unsupported | Fee award appropriate given R. 5:3-5(c) factors, plaintiff’s bad‑faith conduct and noncompliance | Affirmed; trial court did not abuse discretion in awarding $5,000 in fees |
Key Cases Cited
- Heffner v. Jacobson, 192 N.J. Super. 299 (App. Div. 1983) (timely appeal requirement; issues not raised by untimely appeal are barred)
- Kelly v. Kelly, 262 N.J. Super. 303 (Ch. Div. 1992) (purpose of fee awards includes preventing malicious parties from inflicting economic harm via counsel costs)
- Williams v. Williams, 59 N.J. 229 (1971) (court may consider good or bad faith when awarding fees)
- Packard-Bamberger & Co. v. Collier, 167 N.J. 427 (2001) (fee award reviewed for abuse of discretion)
- Rendine v. Pantzer, 141 N.J. 292 (1995) (standards for reviewing fee determinations)
- Cesare v. Cesare, 154 N.J. 394 (1998) (deference to Family Part fact findings due to its special expertise)