SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0345-19T1

JENNIFER A. LAROSA,

Plaintiff-Respondent,

v.

PETER BENZA,

Defendant-Appellant.

________________________

Argued October 1, 2020 – Decided October 27, 2020

Before Judges Vernoia and Enright. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FM-07-0731-13.

Marianne Zembryski argued the cause for appellant.

Kathy Karas-Pasciucco argued the cause for respondent 

(Feitlan, Youngman, Karas & Gerson, LLC, attorneys; 

Kathy Karas-Pasciucco and Frederick Gerson, on the 

brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Peter Benza appeals from an August 29, 2019 order awarding 

his former wife, plaintiff Jennifer LaRosa, $7377.35 in counsel fees. We affirm. 

The parties are divorced and have two teenage sons. In November 2012, 

they entered into a Marital Settlement Agreement (MSA), which was 

incorporated into their 2013 Dual Judgment of Divorce. In January 2019, 

plaintiff moved to enforce the MSA, seeking: (1) reimbursement for defendant's 

share of their children's expenses; (2) permission for the children to travel and 

participate in extracurricular activities; and (3) an award of attorney's fees. 

Plaintiff claimed she contacted defendant multiple times concerning the childrelated issues, but he either withheld consent for the children to participate in 

activities, refused reimbursement for his share of their expenses, or did not 

respond to her requests. Plaintiff's motion was supported with copies of 

communications she and her attorney sent to defendant and his counsel between 

September 2018 and January 2019, requesting reimbursement for the children’s 

medical expenses, extracurricular activities, and school lunches. 

Following extensive oral argument on May 13, 2019, the motion judge 

directed defendant to reimburse plaintiff $4545.54 for his share of expenses due 

under the MSA. She also awarded plaintiff counsel fees in an undetermined 
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amount, pending receipt of an updated certification of services from plaintiff's 

counsel and defendant's response to same. 

In support of her decision to award counsel fees, the motion judge noted 

that, although defendant contended he did not owe the total sum requested by 

plaintiff, he conceded he was responsible for some reimbursements. The judge

observed:

But he paid none of the ones that were supposed to be 

paid. Even in his own exhibit, there are charges there 

that he agrees he should have paid. He still hasn't paid 

to this day. The necessity of having to file an 

application for the children to go on vacation with the 

plaintiff, for the children to participate in sports -- there 

just is no reason why this motion should have had to 

have been filed.

He's not paying any child support whatsoever. 

Certainly[,] it’s not a financial thing.

. . . . 

[His income of ] $112,000 a year is all for him -- all for 

the benefit of him. He certainly could have paid these 

extracurricular activities and medical expenses for the 

reimbursement. He didn’t even do that, causing this 

motion to have to be filed.

And this isn't the first one. There’s been more . . . . So, 

I am going to award counsel fees. 

Defendant did not appeal from the May 13, 2019 order. On August 29, 

2019, the judge awarded plaintiff $7377.35 in counsel fees, although the record 
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reflects that plaintiff represented she incurred over $17,000 in counsel fees and 

costs to pursue her enforcement application. In the judge's statement of reasons, 

she itemized those legal services provided by plaintiff's counsel which she 

deemed reasonable, noting the hourly rates and the time expended for those 

services.

On appeal, defendant argues the fee award should be reversed because the 

motion judge did not perform the requisite analysis under Rule 5:3-5(c) and 

applicable case law. We are not persuaded. 

In Mani v. Mani, the Court summarized Rules 5:3-5(c) and 4:42-9(b) 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.

[183 N.J. 70, 94-95 (2005) (citations omitted).]

"'Where one party acts in bad faith, the relative economic position of the 

parties has little relevance' 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) (quoting Kelly v. Kelly, 262 
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N.J. Super. 303, 307 (Ch. Div. 1992)). Bad faith may consist of a party's 

"constant disregard" of court orders, id. at 460; or the "intentional 

misrepresentation of facts," Borzillo v. Borzillo, 259 N.J. Super. 286, 294 (Ch. 

Div. 1992).

Next, we note that at page thirty-one of the parties' MSA, they agreed:

Nothing herein contained shall be deemed or construed 

as a waiver or denial of either party's right to secure 

payment of counsel fees for any breach by the other of 

the terms of this agreement. In the event of such 

breach, the breaching party shall be responsible for any 

and all legal fees arising from same.

There is a "'strong public policy favoring stability of arrangements' in 

matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) 

(quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). Matrimonial settlement 

agreements are "governed by basic contract principles," Quinn v. Quinn, 225 

N.J. 34, 45 (2016), and "fair and definitive arrangements arrived at by mutual 

consent should not be unnecessarily or lightly disturbed," id. at 44 (quoting 

Konzelman, 158 N.J. at 193-94). Indeed, as we have previously observed, a trial 

court's failure to give effect to a counsel fee award provision in an MSA 

constitutes an abuse of discretion. See Strahan v. Strahan, 402 N.J. Super. 298, 

317 (App. Div. 2008). 
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Under Rule 5:3-5(c), a trial court has discretion to award counsel fees in 

matrimonial actions. Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 

2010) (citing Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004)). "We 

will disturb a trial court's determination on counsel fees only on the 'rarest 

occasion,' and then only because of clear abuse of discretion." Strahan, 402 N.J. 

Super. at 317 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). 

Here, we discern no abuse of discretion. It is evident the motion judge 

tethered her award of counsel fees to her May 13, 2019 ruling, when she found

defendant acted unreasonably by withholding consent to the children's activities,

and by withholding payments he agreed were due to plaintiff, even though he 

enjoyed the exclusive use of his significant earnings. As the judge observed, it 

was this recalcitrant behavior that caused "this motion to have to be filed. And 

this isn't the first one. There's been more." 

Given defendant's ongoing bad faith and intransigence, we see no reason 

to second guess the amount of counsel fees awarded, particularly since the sum 

was fixed only after the judge considered defendant's opposition to the award 

and after the requested fee was adjusted for reasonableness. Moreover, the 

defendant's objections to the amount of the award ring hollow, in light of the 
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provision in the MSA that a "breaching party shall be responsible for any and 

all legal fees arising from [the breach]." 

Defendant's remaining arguments lack sufficient merit to warrant 

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

Affirmed.