JILL SHEINBAUM v. ROBERT CAMPBELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3857-07T33857-07T3

JILL SHEINBAUM,

Plaintiff-Respondent,

v.

ROBERT CAMPBELL,

Defendant-Appellant.

_____________________________

 

Submitted July 7, 2009 - Decided

Before Judges Fisher and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-250-05.

Scholl, Whittlesey & Gruenberg, LLC, attorneys for appellant (Franklin G. Whittlesey, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Among various other matters, this appeal concerns the trial court's imposition of a $500 sanction against defendant Robert Campbell for each future violation of the court's April 3, 2007 order. The procedural history and statement of facts leading to the April 3, 2007 order, as well as the related orders of June 4, 2007 and August 3, 2007, are set forth in our prior consolidated opinion of Sheinbaum v. Campbell, Nos. A-5174-06 and A-0124-07 (App. Div. March 31, 2009). However, the following brief summary will place this appeal in context.

Following a seventeen-day custody trial, the trial court entered an order on April 3, 2007, resolving the issues of custody of the parties' son, parenting time, child support and counsel fees. On June 4, 2007, the court entered an order: 1) directing defendant to pay a previously-ordered counsel fee award of $68,000 in twenty-four equal monthly installments; 2) imposing a $100 per-diem sanction if defendant failed to timely pay the monthly counsel fee installments; and 3) directing defendant to pay an additional counsel fee award of $1,500 to plaintiff Jill Sheinbaum for opposing defendant's motion for reconsideration. On August 3, 2007, the court entered an order denying defendant's motion for a stay of those prior orders and awarded plaintiff an additional counsel fee of $1,500.

Defendant appealed from various portions of the three orders. On March 31, 2009, we reversed those parts of the April 3, and June 4, 2007 orders that directed defendant to pay the $68,000 counsel fee award in twenty-four equal monthly installments; and imposed a $100 per-diem sanction on him for failure to timely pay the installments in the future. Id. at 28. We concluded that "[a]n evidentiary hearing should have been conducted as to defendant's then ability to pay the monthly installments . . . before a sanction was imposed." Ibid. Moreover, we found the imposition of the per-diem sanction "premature" and that the sanction imposed was "arbitrary and punitive in amount." Id. at 29. Accordingly, we remanded to the trial court "to reconsider its prior order directing defendant to satisfy the counsel fee award in equal monthly installments of $2,833.33," id. at 30; and we affirmed on the remaining issues. Id. at 34-35.

In the interim, on February 1, 2008, plaintiff filed an application for an order to show cause (OTSC), seeking to suspend defendant's parenting time based on defendant having taken the parties' son to Colorado in the spring of 2007 to visit with members of defendant's family, without having given plaintiff prior notice. Plaintiff also sought a temporary retraining order enjoining defendant from removing their son from the State on an overnight basis. On February 6, 2008, the parties entered into a consent order enjoining defendant from removing their son from the State on an overnight basis, pending the return date of the OTSC. On the same day, the court converted the OTSC into a motion, returnable February 29, 2008.

Meanwhile, on February 4, 2008, defendant served three separate subpoenas duces tecum on: 1) Arnold P. Gold, M.D.; 2) David L. Holmes, Ph.D., plaintiff's witness at the prior plenary hearing; and 3) Lynnette J. Goodman, L.C.S.W. The subpoenas directed each to appear at the law office of defense counsel on February 18, 2008, and produce: "[c]opies of any and all correspondence, reports, [e-]mails or other writings prepared by you or received by you within the past 8 months regarding [the parties' son]. This includes correspondence from attorneys, educators, physicians and the parties."

On or about February 15, 2008, plaintiff filed a second OTSC seeking to quash the three subpoenas. Defendant cross-moved, seeking, among other matters, an order: 1) denying plaintiff's motion to quash the subpoenas; 2) finding plaintiff in violation of his litigant's rights for violating the April 3, 2007 order; 3) directing plaintiff to undergo a psychological evaluation; 4) suspending plaintiff's parenting time; 5) transferring primary custody of the parties' son to defendant; and 6) awarding defendant counsel fees.

On March 28, 2008, the court entered three orders supported by an oral opinion. One order quashed the three subpoenas and imposed a $500 sanction on defendant for each future violation of Paragraph 1(i) of the April 3, 2007 order. That paragraph prohibits defendant from "contact[ing] any of [the parties' son's] health care providers, therapists, school teachers and school administrators, and anyone else providing for [their son's] health, education and welfare," without providing plaintiff notice of his intended communication.

A second order restrained defendant from removing their son from the State on an overnight basis without providing plaintiff a thirty-day written notice of the child's travel plans. That order also granted plaintiff a $1,500 counsel fee award. A third order denied defendant's cross-motion.

On appeal, defendant argues that the trial court erred: 1) in imposing a $500 sanction against him for each future violation of Paragraph 1(i) of the April 3, 2007 order; 2) in awarding plaintiff $1,500 in counsel fees for services incurred in prosecuting her OTSC seeking to restrain him from removing their son on an overnight basis without prior notice; 3) in quashing the three subpoenas; and 4) in denying his cross-motion seeking to hold plaintiff in violation of his litigant's rights and to disqualify plaintiff's counsel.

We agree that the court erred in imposing a $500 sanction on defendant for any future violation of the April 3, 2007 order. As stated in our prior opinion, which was issued after the court's orders of March 28, 2008, the imposition of a sanction prior to a violation of the order is "premature." Id. at 29. Moreover, "the court did not explain how it arrived at the sanction of" $500 or why a smaller sanction would not have been effective; and it did not consider defendant's ability to pay. Ibid.

Thus, like the $100 per-diem sanction we reversed in our prior opinion, without an explanation as to the amount of the sanction ordered, "the amount imposed was arbitrary and punitive." Ibid.; see East Brunswick Bd. of Educ. v. East Brunswick Educ. Ass'n, 235 N.J. Super. 417, 422 (App. Div. 1989) (holding that a court "must consider the offending party's ability to pay and the sanction's impact on that party in light of its income, status and objectives, as well as the sanction's impact on innocent third parties").

Accordingly, we reverse that part of the court's order imposing a $500 sanction without prejudice to plaintiff to reapply for a sanction if defendant violates the April 3, 2007 order in the future. We conclude that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed in part and reversed in part.

(continued)

(continued)

6

A-3857-07T3

August 25, 2009