NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Tatiana Litvinenko appeals from orders entered by the trial court on October 25, 2013 and January 2, 2014. Plaintiff and defendant, Suren Ter-Saakov, have one child together, a son born in April 2008. He lives with plaintiff in Minnesota. We affirm the imposition of counsel fees against plaintiff and remand to the trial judge because she did not place the reasons for adjusting child support and parenting time on the record, nor provide the Child Support Guidelines (CSG) worksheet.
Defendant relocated to the Republic of Ukraine in June 2012, when his son was four years old. Three months later, the judge signed an unopposed order granting plaintiff sole custody of the son and requiring defendant to pay child support of $463 per week, attaching a completed CSG worksheet.1 Within a few months, motions were filed by both parties. After extensive pre-hearing motion practice and extensive discovery demands, a hearing began in April 2013. Defendant flew in from the Ukraine to attend the hearing. Plaintiff was not represented by counsel, and during her testimony she sought an adjournment to seek counsel. When this mid-trial request was denied, she informed the judge that she was leaving the courtroom and would not participate further. The judge warned plaintiff that if she left, her requested relief would be denied without prejudice and the hearing would continue in her absence. Plaintiff nonetheless walked out of the courtroom.
After completing the hearing, the judge entered an order granting the parties shared custody of their child, with plaintiff named as the parent of primary residential custody. Defendant was provided with Skype2 parenting time on three separate occasions each week and one week overnight vacation time per year, which was not to interfere with the child's school schedule. Defendant's request to reduce child support was granted. He was ordered to pay reduced child support of $268 per week effective September 13, 2012.3 A CSG worksheet was not provided to the parties with the order.4 Defendant was also awarded $11,805 in attorney's fees due to plaintiff's bad faith during the litigation. All relief requested by plaintiff was denied without prejudice.
"The general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings 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, supra, 65 N.J. at 484); Beck v. Beck, 86 N.J. 480, 496 (1981).
However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J.Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). An appellate court is not bound by the legal conclusions of a trial court. State v. Gandhi, 201 N.J. 161, 176 (2010) (citations omitted).
Plaintiff argues that the trial judge abused her discretion by awarding counsel fees to defendant because defendant "is a successful [businessman] by everyone's standards, earning a seven figure income for his consulting business annually." Thus, plaintiff claims defendant is in a far superior financial position than plaintiff. Defendant responds that plaintiff's bad faith litigation techniques justify the award.
A judge in a matrimonial action may award a party reasonable attorney's fees and costs, and in making that determination "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23; see R. 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J.Super. 58, 78 (App. Div. 2007), and will be disturbed "only on the `rarest occasion,' and then only because of [a] clear abuse of discretion." Strahan v. Strahan, 402 N.J.Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
For purposes of awarding counsel fees, bad faith relates to the party's conduct during the litigation. Mani v. Mani, 183 N.J. 70, 95 (2005) (citations omitted). The purpose of an award of fees against a "bad faith" litigant "is to protect the innocent party from unnecessary costs. . . ." Yueh v. Yueh, 329 N.J.Super. 447, 461 (App. Div. 2000).
The judge based the attorney fee award on plaintiff's bad faith in leaving the proceeding against the order of the judge. The judge wrote the following in her statement of reasons:
The first time the Court was made aware Plaintiff did not believe she could proceed without the assistance of counsel was on the record at the plenary hearing on April 18, 2013. This was only after Plaintiff made remarks which seemed confusing to the Court (i.e. wedding date, move to Minnesota, babysitter's names) and more so would have been reasons for Defendant to request an adjournment of the proceedings in light of the new information Plaintiff failed to disclose. Plaintiff made many accusations about Defendant's lack of disclosure during the discovery period; however it seems to the Court that it was Plaintiff who was not forthcoming with information. While the Court notes that Plaintiff was not cooperative with discovery prior to the hearing date, the tipping point of her bad faith in the proceedings occurred when she left the plenary hearing up until the filing of this motion. Therefore the Court shall only obligate her to be responsible for Defendant's counsel fees following the hearing date. Defendant's counsel submitted a Certification of Legal Fees, detailing the work done on the case, since the April 18, 2013 trial date, totaling fees at $11,804.98. The parties have both however failed to file Case Information Statements for the Court to consider their respective ability to pay for counsel fees. The parties shall file a Case Information Statement within fifteen [] days of the date of this Order.
After plaintiff obtained counsel and the parties submitted case information statements the judge stated the following:
Upon review of the parties' Case Information Statements and certification of legal services provided by Defendant's counsel, the Court notes the following. First, Plaintiff's Counsel's letter to the Court dated December 4, 2013 indicates Plaintiff would receive a weekly income of $3,333.00 if she were paid in those increments, however Plaintiff's Case Information Statement indicates she receives $1,461.55 per week. Further, Plaintiff certifies she has received $38,683.78 in 30.5 weeks of the calendar year, from April 2013 through October 2013. Plaintiff would only be receiving an income of $65,952.00 for a calendar year if this figure were correct. However Plaintiff Counsel's letter dated December 4, 2013 indicates she receives a fixed salary of $80,000.00 per year. The Court now questions the representations made by plaintiff. As such, the Court finds it appropriate for Plaintiff to pay Defendant's counsel fees in the amount of $11,804.98.
"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." Jacoby v. Jacoby, 427 N.J.Super. 109, 116 (App. Div. 2012) (citation and internal quotation marks omitted). The judge explained her reasons for imposing reasonable attorney fees, a decision well within her discretion, and we therefore affirm that decision.
The trial judge erred, however, by granting defendant's request to modify his child support obligation, which she changed from $463 per week to $268 per week, without attaching a CSG worksheet or explaining her reasons. A judge is required to attach a completed child support guidelines worksheet to any order that includes child support. Capaccio v. Capaccio, 321 N.J.Super. 46, 54 n.11 (App. Div. 1999); R. 5:6A.
We were not provided with any factual findings made by the judge on the record. Rule 1:7-4(a) states that a trial "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury[.]" See Shulas v. Estabrook, 385 N.J.Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis for a court's action). "`Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan, supra, 402 N.J. Super. at 310 (quoting Salch v. Salch, 240 N.J.Super. 441, 443 (App. Div. 1990)).
Affirmed in part and reversed and remanded in part to allow the judge to state her findings of fact and conclusions of law and attach a completed CSG worksheet. We do not retain jurisdiction.
