                                NOT FOR PUBLICATION WITHOUT THE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-3851-18T1

MICHAEL PICKHOLZ,

          Plaintiff-Appellant,

v.

JESSICA PICKHOLZ,

     Defendant-Respondent.
__________________________

                   Submitted April 27, 2020 – Decided July 22, 2020

                   Before Judges Rothstadt and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FM-02-1301-18.

                   The Law Offices of Lawrence H. Kleiner, LLC,
                   attorneys for appellant (Lawrence H. Kleiner, of
                   counsel and on the briefs).

                   Shapiro, Croland, Reiser, Apfel & Di Iorio, LLP,
                   attorneys for respondent (Brian C. Martel and Lily J.
                   D'Olimpio, on the brief).

PER CURIAM
      Plaintiff Michael Pickholz appeals from the Family Part's March 28, 2019

order granting defendant Jessica Pickholz counsel fees in the amount of

$14,350.85 relative to defendant's efforts to secure payment of funds plaintiff

was obligated to pay her under an agreement the parties entered into before being

divorced on December 3, 2018. The Family Part judge entered the award after

reviewing the considerations delineated in Rule 4:42-9(b) and Rule 5:3-5(c) and

concluding that plaintiff acted in bad faith when he failed to make the required

payment. On appeal, plaintiff argues that the award was improper, excessive,

and violated his rights under the Eighth Amendment to United States

Constitution. We affirm substantially for the reasons expressed by the Family

Part judge in his written decision that accompanied the order under appeal.

      The parties were married on June 15, 2002. They had two daughters, one

born in 2003 and the other in 2007. In December 2017, plaintiff filed for

divorce.

      On September 14, 2018, the parties entered into an agreement, with the

advice of counsel, which they identified as the "Essential Terms of Settlement

Agreement" (Agreement) that addressed all of the issues arising from their

divorce. The Agreement was signed by the parties and their counsel.




                                                                         A-3851-18T1
                                       2
      The Agreement stated that plaintiff would pay defendant a total of

$104,000 for all claims relating to equitable distribution by making a $10,000

payment by September 17, 2018, with the remaining amount to be paid by

October 1, 2018. Notably, there were no conditions to the payments being made

when due. Additionally, in the Agreement, the parties waived alimony and

addressed a pending lawsuit pertaining to the parties' mutually owned business.

      As to custody and parenting time, the Agreement stated that the parties

would have joint legal custody, but all other related issues would be subject to

a best interest evaluation to be prepared in the future by a psychologist they had

selected. The Agreement also required plaintiff to pay sixty percent of the

children's health insurance, uncovered medical expenses, medical copayments,

and extracurricular activities, and to pay monthly child support beginning

October 1, 2018.

      In addition, the Agreement provided that the parties would be responsible

for their own counsel fees and each party was responsible for their own debt. It

also addressed the parties' tax returns and the division of their business.

      Plaintiff made the first payment of $10,000 on September 17, 2018.

Thereafter, the parties' counsel entered into an unnecessarily contumacious

dispute about the preparation of a marital settlement agreement (MSA) that was


                                                                              A-3851-18T1
                                        3
to be made part of the parties' anticipated Final Judgment of Divorce (FJOD).

According to a September 26, 2018 email from plaintiff's counsel, defense

counsel was to have drafted the proposed MSA, the receipt of which was a

condition precedent to plaintiff making the second payment due under the

Agreement. Defense counsel responded and stated that he did "not work for

[plaintiff and did not] operate [his] practice around [plaintiff's] time frame." He

further stated that he would "draft a proposed agreement when [he got] the

chance to draft one" or plaintiff's counsel could draft one himself. Either way,

defense counsel stated that the proposed MSA could not "be signed and finalized

until custody and parenting time [was] resolved." The next day, plaintiff's

counsel drafted a proposed MSA and sent it to defense counsel.

      Plaintiff failed to make the $94,000 payment and his child support

payment that were both due under the Agreement on October 1, 2018. In

response to defense counsel's inquiry about the payments, plaintiff's counsel

stated "that [p]laintiff's position was that he would not comply with the

remainder of [the] Agreement until [the parties] entered into a full [MSA] ."

However, ten days later, on October 11, 2018, plaintiff made his child support

payment.




                                                                           A-3851-18T1
                                        4
      When the second payment for equitable distribution was not made,

defendant filed a motion to compel payment of the remaining $94,000 and to

require future child support payments through wage garnishment. According to

defendant's supporting certification, plaintiff acted in bad faith when he

withheld the payment. Additionally, she stated that since plaintiff was "in a

superior economic position [than defendant,] . . . [she requested] that [p]laintiff

be ordered to reimburse [her] for the counsel fees [she] incurred in connection

with [this] . . . application." Defendant's application was also supported by her

counsel's certification of services.

      Prior to plaintiff filing any opposition to the motion, the Family Part judge

conducted a case management conference to finalize the MSA on a day that had

been scheduled for the final hearing. During the conference, the judge addressed

the pending motion.      The judge observed that plaintiff "didn't follow the

essential terms, and [defendant] didn't follow exactly the essential terms" of the

Agreement. He also questioned whether the Agreement could be enforced since

it was not part of a court order or judgment. However, the judge suggested that

it would be in plaintiff's interest to make the outstanding payment tomorrow,

and that he "may not be done with the penalty or the exposure that [plaintiff was

going to] risk when [he was] done with this case."


                                                                           A-3851-18T1
                                        5
      Shortly after the conference, plaintiff made a $10,000 payment towards

the outstanding $94,000. Plaintiff's counsel advised defense counsel about the

payment and asked when plaintiff could expect a response to the proposed MSA.

On October 30, 2018, defense counsel asked plaintiff's counsel for a differently

formatted version of the proposed MSA, which plaintiff's counsel forwarded to

him. On November 8, 2018, plaintiff's counsel asked for an update on the

proposed MSA, to which defense counsel responded by stating that they were

"in the process of revising it."

      On November 20, 2018, plaintiff filed opposition and a cross motion to

plaintiff's motion for counsel fees, seeking the denial of defendant's motion, the

entry of a deadline for defendant to reply to the proposed MSA, and an award

of counsel fees.     In his supporting certification, plaintiff argued that the

Agreement was not a settlement agreement and that defendant's "arguments

show[ed] her wanton disregard for [the c]ourt [o]rders and continued ba d faith

in pursuit of her personal vendetta against [him]." He stated that defendant and

her counsel are the ones that purposely prolonged this process. According to

plaintiff, after the Agreement was completed, defense counsel was supposed to

draft an MSA by October 1, 2018 but he failed to do so. Since efforts to contact

defense counsel were unsuccessful or ignored, plaintiff's counsel drafted an


                                                                          A-3851-18T1
                                        6
MSA. Contrary to defendant's assertions, plaintiff argued that the only issue

that needed to be resolved by the psychologist was to advise on parenting time,

as the parties agreed to have joint legal custody.         Plaintiff asserted that

defendant's continued failure to respond to the drafted MSA supported a finding

that defendant's actions were in bad faith. In further support of his application,

plaintiff attached a certification of services from his counsel. Neither plaintiff's

nor his counsel's certifications identified any issue about plaintiff's counsel fee

being excessive.

      A week after plaintiff filed his opposing papers, defense counsel revised

the proposed MSA and sent it to plaintiff's counsel. Two days later, he filed

defendant's certification in further support of her pending application and in

opposition to plaintiff's cross motion. In her certification, defendant challenged

the plaintiff's statements made in his papers and explained that any delay in

addressing the MSA was due to her and her counsel being "under the impression

that there was no urgency in drafting the [MSA], because [they] were under the

mistaken impression that the [c]ourt would not bifurcate the issue of child

custody from the economics of [this] matter." She further asserted that the delay

was also caused by plaintiff's failure to make the required payments, which she

needed in order to retain the psychologist. According to defendant, she had no


                                                                            A-3851-18T1
                                         7
"firsthand knowledge" of the conversations the parties' counsel had with each

other but noted that plaintiff's statements were contradicted by her counsel's time

sheet.

         On December 2, 2018, plaintiff and his counsel again revised the proposed

MSA and forwarded it to defendant and her counsel. The next day, the parties

appeared before the Family Part judge for their final hearing.

         At the hearing, before the parties testified, the judge informed plaintiff

that because he failed to pay the $84,000 he still owed under the Agreement, he

was "in violation of an [A]greement that [he was] not done with yet. So

[plaintiff thought] getting divorced [that day] end[ed] it . . . [but the judge was]

not so sure it [did]."     The judge further stated that plaintiff did have the

"opportunity to make this right. [Plaintiff] signed an agreement which [the

judge] anticipated [plaintiff] would be bound to. And if plaintiff [thought] that

this court [was] a joke, . . . [he would] have [an] opportunity to spend some time

with [the court].      Unless [his counsel] convince[d the judge] otherwise."

Plaintiff then handed the check for the amount owed to his counsel. The parties

then testified to their acceptance of the terms of the Agreement, which they both

had signed and included that plaintiff was required to pay defendant $104,000,




                                                                            A-3851-18T1
                                          8
that the parties were able to negotiate the terms in the Agreement, they

understood the terms of the Agreement, and they agreed to be bound by its terms.

      Afterwards, the judge asked plaintiff why he should not impose sanctions

against him. Plaintiff's counsel responded by again justifying plaintiff's actions

by relying upon defense counsel's failure to address the MSA in a timely fashion.

Plaintiff's counsel explained that plaintiff was not acting in bad faith but instead

was just being extremely cautious as the matter kept getting dragged on. With

that, plaintiff believed that counsel fees should not be awarded to defendant,

especially since the Agreement stated that each party would be responsible for

their own counsel fees.

      Defense counsel argued that "nowhere in [the Agreement did] it condition

compliance on anything else happening. Nowhere [did] it say that . . . plaintiff

will pay $104,000 upon execution of a subsequent written agreement. It doesn 't

say that anywhere." Further, defense counsel admitted that he did not review

the drafted MSA immediately, but explained that his lack of immediate review

was because the parties "were still months away from resolving the custody and

parenting time issues[, as the psychologist had not] even issued his report yet."

To counsel's understanding, the case was going to be bifurcated between the

divorce and custody issues, and after this was decided, counsel asked plaintiff


                                                                            A-3851-18T1
                                         9
to send over a word format of the drafted MSA, in which he had to essentially

rewrite. He then explained that although the parties agreed to many of the terms,

plaintiff's counsel then sent a new revision the day before this hearing which

revised aspects that were already agreed upon. Since the proposed MSA could

not be agreed upon, the parties had to go back to the Agreement, as defendant

was in need of the remaining amount due.

      The judge indicated that he never agreed to bifurcate the matter and there

had to be some parenting time in place in the interim before the FJOD was

entered. The parties then agreed to an interim parenting schedule that would be

in place until the psychologist had conducted his best interest analysis, and if

they could not agree to follow the recommendations in the report, they could

come back to court.     The judge then entered the FJOD, incorporating the

Agreement.

      After the judgment was entered, the judge informed defense counsel that

he could "submit a certification of [his] services . . . that says, why [he thought

he] should get those fees, given all of the circumstances that were just laid out

on the record" by December 14, 2018. Plaintiff's counsel was given a week to

respond.




                                                                           A-3851-18T1
                                       10
      Both parties filed certifications. In defense counsel's certification he set

forth information about the fees and costs expended as required by Rule 4:42-

9(b) and the Rules of Professional Conduct (RPC) 1.5, and itemized defendant's

position as to each of the factors under Rule 5:3-5(c). He argued that these rules

warranted an award of counsel fees to defendant in the amount of $14,350.85,

which was incurred in attempt to enforce the Agreement during the period from

October 1, 2018 to December 4, 2018.

      In his opposing certification, plaintiff's counsel stated that defense

"[c]ounsel ha[d] proven to be an inaccurate historian of the facts surrounding

this case." He stated that from the "signing of the [Agreement] on September

14, 2018 until the uncontested hearing on December 3, 2018 [there had been]

confusion regarding the obligations of the parties." Plaintiff reiterated the lack

of communication on defendant's end in relation to drafting an MSA. Further,

he stated that the fees for the appearances from November 30, 2018 and

December 3, 2018 related to "finalizing the negotiations for the ultimate

resolution of this matter," rather than for the application for counsel fees. Last,

he stated that this could have all been avoided if "[d]efendant had simply taken

[the] time and negotiated a settlement." Notably, plaintiff's counsel did not




                                                                           A-3851-18T1
                                       11
argue that the time expended by defense counsel was excessive, other than it

would have been better focused upon settlement rather than enforcement.

      On March 28, 2019, the judge entered the order awarding fees, which

included his written decision. The judge reviewed all of the factors under Rule

5:3-5(c) and he found that plaintiff had the ability to pay his own fees, but

defendant did not. He further determined that plaintiff acted in "bad faith by

failing to pay . . . [d]efendant as part of the" Agreement. The judge found

plaintiff's argument that the full $104,000 was only payable to defendant upon

the signing of an MSA as unsupported by the record. He specifically stated that

the execution of a final MSA was not a condition precedent and the Agreement

"would have been sufficient for the parties to be divorced . . . and to submit a[n

MSA] after-the-fact." By failing to adhere to the Agreement and allowing

defendant to incur significant legal fees in attempt to get the delinquent payment,

it allowed the judge to grant defendant counsel fees in the amount of $14,350.85.

This appeal followed.

      On appeal, plaintiff argues that the judge's conclusion that he "acted in

bad faith by not paying the monies referenced in the [Agreement], and that the

fees requested were reasonable," were without merit and an abuse of the judge's

discretion. He contends that the judge's finding was contrary to the evidence,


                                                                           A-3851-18T1
                                       12
as the judge had continuously stated that both parties were at fault for not

following the Agreement.       Plaintiff asserts that he only promised to pay

defendant $104,000 so long as a reasonable parenting-time schedule was made.

Since defense counsel failed to draft the MSA, failed to acknowledge the one

that plaintiff's counsel drafted in a reasonable time, and defendant failed to

speedily retain the psychologist, he argues that the judge's decision was

incorrect. In the alternative, plaintiff asserts that the fees requested by defense

counsel were excessive because the hours expended by defense counsel

exceeded what was necessary to secure his performance. We disagree.

      Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J.

394, 411 (1998); Gnall v. Gnall, 222 N.J. 414, 428 (2015). This court accords

deference to the family courts due to their "special jurisdiction and expertise in

family matters." Cesare, 154 N.J. at 413. The family court's findings are

binding so long as its determinations are "supported by adequate, substantial,

credible evidence." Id. at 411-12. We will not "disturb the 'factual findings and

legal conclusions of the trial judge unless [we are] convinced that they are so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice.'" Id. at 412

(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. of Am., 65 N.J. 474, 484 (1974)).


                                                                           A-3851-18T1
                                       13
"Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the

mark' should we interfere to 'ensure that there is not a denial of justice.'" Gnall,

222 N.J. at 428 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.

88, 104 (2008)).

      Where the issue before us relates to a trial judge's award of counsel fees,

we "will disturb [the judge's] determination on counsel fees only on the 'rarest

occasions, and then only because of a clear abuse of discretion.'" J.E.V. v. K.V.,

426 N.J. Super. 475, 492 (App. Div. 2012) (quoting Rendine v. Pantzer, 141 N.J.

292, 317 (1995)). In determining whether to award fees, a trial judge must

determine the reasonableness of the fees sought based on information required

by Rule 4:42-9(b), which incorporates RPC 1.5, and, in family matters, a party's

entitlement to fees after considering the factors listed in Rule 5:3-5(c). Id. at

493. A judge "shall consider the factors set forth in [Rule 5:3-5(c)], the financial

circumstances of the parties, and the good or bad faith of either party." N.J.S.A.

2A:34-23.

      Among the factors under Rule 5:3-5(c) is "the reasonableness and good

faith of the positions advanced by the parties both during and prior to trial."

J.E.V., 426 N.J. at 493 (quoting R. 5:3-5(c)(3)). Where one party pursues a

position in bad faith, the judge may award reasonable counsel's fees to the other


                                                                            A-3851-18T1
                                        14
irrespective of the parties' relative economic health "because the purpose of the

award is to protect the innocent party from unnecessary costs and to punish the

guilty party." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000). Fees

can be awarded or denied where otherwise appropriate based upon bad faith.

See J.E.V., 426 N.J. Super. at 493 ("[T]he party requesting the fee award must

be in financial need and the party paying the fees must have the financial ability

to pay, and if those two factors have been established, the party requesting the

fees must have acted in good faith in the litigation.").

      Bad faith "generally impl[ies] or involv[es] actual or constructive fraud or

a design to mislead or deceive another or a neglect or refusal to fulfill some duty

or some contractual obligation, not prompted by an honest mistake as to one's

rights or duties, but by some interested or sinister motive." Kelly v. Kelly, 262

N.J. Super. 303, 308 (Ch. Div. 1992) (quoting Bad Faith, Black's Law Dictionary

(4th ed. 1968)); see also Borzillo v. Borzillo, 259 N.J. Super. 286, 293 (Ch. Div.

1992) (explaining that bad faith includes, among other things, "[t]he intentional

noncompliance with a voluntary agreement" and "[t]he misuse or abuse of

process to evade court-ordered obligations or obligations arising out of

voluntary agreement").




                                                                           A-3851-18T1
                                       15
      Applying these guiding principles here, we discern no reason to disturb

the Family Part judge's award of fees to defendant.        As the judge found,

plaintiff's obligation to make the equitable distribution and child support

payments under the Agreement were not contingent on anything, a fact that

plaintiff obviously understood when he partially performed the Agreement by

making the initial $10,000 payment to defendant. See Duff v. Trenton Beverage

Co., 4 N.J. 595, 604 (1950) (explaining that a condition precedent will apply

only if that was "[t]he intention of the parties"); see also Liberty Mut. Ins. v.

President Container, Inc., 297 N.J. Super. 24, 34 (App. Div. 1997) (explaining

that since condition precedents are disfavored, the creation of a condition

precedent has to be clearly expressed in the agreement for it to be applied);

Wanaque Borough Sewerage Auth. v. Township of West Milford, 144 N.J. 564,

574 (1996) ("Courts often find and enforce implied promises by interpretation

of a promisor's word and conduct in light of the surrounding circumstances.").

      Other than an unrelated delay in defense counsel drafting or reviewing the

proposed MSA, plaintiff does not cite to any evidence that defendant acted in

bad faith by breaching the parties' express agreement. See Kelly, 262 N.J.

Super. at 308; Borzillo, 259 N.J. Super. 293-94. Moreover, to the extent plaintiff

relies upon defendant's failure to retain the agreed upon psychologist, his


                                                                          A-3851-18T1
                                       16
argument is belied by the Agreement's express terms that fixed a date for the

payments he was obligated to make, and left to the future, without any deadline,

the retention of the expert and the issuing of his report.

      Additionally, contrary to plaintiff's contention, there was no evidence that

the judge abused his discretion by finding the fees he awarded were reasonable.

To the extent that plaintiff raises on appeal for the first time specific time entries

from defense counsel's time sheets to support his contention, we need not

consider his argument as it was not raised before the trial judge. See Nieder v.

Royal Indem. Ins., 62 N.J. 229, 234 (1973); Correa v. Grossi, 458 N.J. Super.

571, 576 n.2 (App. Div. 2019).

      Finally, we find plaintiff's remaining contention about the award violating

his Eighth Amendment rights to be without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                              A-3851-18T1
                                        17
