KAREN M. WELCH v. WILLIAM B. WELCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3579-10T3

KAREN M. WELCH,

Plaintiff-Respondent,

v.

WILLIAM B. WELCH,

Defendant-Appellant.

_________________________________________________

December 15, 2011

Submitted October 25, 2011 - Decided

Before Judges Payne and Hayden.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1006-94.

William B. Welch, appellant, pro se.

Karen M. Welch, respondent, pro se.

PER CURIAM

Defendant, William B. Welch, appeals from a February 9, 2011 order of a judge of the Family Part awarding him $1,949.76 in attorney's fees and costs as the result of the refusal, by plaintiff, to appear at a hearing scheduled to commence on January 26, 2009. On appeal, defendant argues that the judge also should at least have awarded a $4,563.86 fee incurred in the period from January 17, 2009 through February 20, 2009, allegedly as the result of his counsel's preparation for the hearing. Defendant also notes the judge's failure to award a $1,752.50 fee incurred for the period from March 16 to April 16, 2009 in connection with a motion by plaintiff for reconsideration of a contempt order entered against her as the result of her failure to appear. We affirm.

In this decision, we recite only those facts and that procedural history that directly relate to the appeal. In that regard, the record reflects that the parties were divorced in 1994. At the time, they had one son, born in 1992. The judgment of divorce gave joint custody of the son to the parents, and gave residential custody to plaintiff.

The present matter arises from claims by defendant that plaintiff was attempting to alienate the affections of the son for his father and to interfere with his ability to reconcile with him. In that connection, defendant brought to the attention of the judge to whom the matter had been assigned a series of e-mails written to the leader of the son's Boy Scout troop and to the parents of members of the troop, claiming that those e-mails provided evidence of plaintiff's improper conduct. At a hearing in the matter, plaintiffdenied sendingthe e-mails, although they bore her name as the sender. As a result, the judge scheduled a hearing to resolve the issue of the

e-mails' validity, to be held in one-hour segments over the course of the week commencing on January 26, 2009. However, on January 23, 2009, plaintiff wrote to the judge stating, in part:

I have a job that I need to keep and your scheduling of a plenary hearing for an hour a day every day during the last week of January would put my job at risk. I am not able to take the time to attend this hearing. I don't care about scout e-mails.

Plaintiff did not appear at the hearing scheduled for January 26, 2009.

As a consequence of plaintiff's failure to appear, the judge issued an order to show cause why plaintiff should not be held in contempt "for her failure to attend the scheduled court hearing, and her further failure to assist in the effectuation of parenting time between the child and his father." A hearing in the matter was scheduled for February 23, 2009. Following the hearing, the judge issued an order holding plaintiff in contempt "for having failed to appear at the scheduled hearing dates on the transmissions of e-mails to representatives of the Boy Scouts, which contempt shall be subject to sanctions[.]" A decision on the amount of sanctions was reserved pending submission of a certification of attorney's services. Plaintiff filed a motion for reconsideration, but it was denied on April 17, 2009.

In the meantime, on February 20, 2009, defendant's counsel submitted a certification of services, which she supplemented with an additional certification dated June 3, 2009. The certifications set forth services resulting in attorney's fees and costs of $56,409.11 for the period from June 27, 2007 through May 31, 2009.

At a hearing held on August 7, 2009, the judge addressed the sanctions issue and appeared to conclude that his focus was solely on fees and costs incurred as the result of plaintiff's non-appearance on January 27, 2009. Indeed, his order stated:

4. The court has found the plaintiff to be in contempt of court for her failure to appear on January 26, 2009. The court shall reserve its decision pertaining to the amount of counsel fees and sanctions as a result of that failure to appear.

However, in an order issued on October 22, 2009, the judge awarded fees of $25,318.34 for "a series of appearances before this court on the issue of whether the plaintiff was interfering with the defendant's right to access to his child." As support for the award, the judge relied on N.J.S.A. 2A:34-23, Williams v. Williams, 59 N.J. 229 (1971) and Rule 5:3-5.

Plaintiff appealed the fee award. In an unreported decision issued on December 8, 2010, we affirmed in part and reversed in part the judge's order, and we remanded the matter for further proceedings. Welch v. Welch, No. A-1541-09 (App. Div. December 8, 2010). In that opinion, we held that although the judge had used the word "contempt," he intended to sanction plaintiff for her failure to appear at the scheduled hearing. Id. (slip op. at 4). As a consequence, Rule 1:2-4(a), not Rule 1:10-2, applied to the imposition of sanctions. Ibid.

We affirmed the judge's decision to sanction plaintiff for her "one-day non-appearance." Id. (slip op. at 4-5). We stated:

Her willful failure to appear violated Rule 1:2-4(a), thus subjecting her to a list of sanctions referenced therein, one of which is the payment "of the reasonable expenses, including attorney's fees to the aggrieved party." R. 1:2-4(a).

[Id. (slip op. at 5).]

However, we concluded that the judge's award of counsel fees and costs in the amount of $25,318.34 for a one-day non-appearance was a mistaken exercise of discretion.1 Ibid. We thus remanded the matter for "the determination and imposition of reasonable counsel fees and costs for plaintiff's one-day non-appearance pursuant to Rule 1:2-4(a)." Ibid.

On remand, the judge, following our direction, conducted a hearing to determine the fees and costs associated with plaintiff's non-appearance. In that regard, the judge, having reviewed the statements of services, noted that there were no specific bills for the day that plaintiff failed to appear. In response, defendant offered a bill for the period from January 22, 2009 to January 30, 2009 in the amount of $1,661, which was marked in evidence. Additionally, defendant sought an award of $4,563.86 for fees incurred in the period from January 17, 2009 through February 20, 2009 and of $1,752.50 for the period from March 16, 2009 to April 16, 2009, claiming that the latter sum represented counsel's work on a response to plaintiff's motion for reconsideration of the judge's finding of contempt. However, the judge did not accept defendant's arguments regarding the augmented sum, awarding only the $1,661 in fees incurred between January 22, 2009 and January 30, 2009 plus the sum of $288.76, consisting primarily of the costs for subpoenas to witnesses to compel their appearance at the aborted hearing. The judge then entered an order requiring plaintiff to pay defendant the sum of $1,949.76 within thirty days.

As we previously stated, defendant has appealed, seeking the additional monies and, most particularly, the $4,563.86 fee that defendant claims defense counsel certified was incurred in preparation for the hearing on the e-mails and the subsequent contempt hearing.

Rule 1:2-4(a) provides as a sanction for non-appearance at a scheduled proceeding without just excuse payment by the delinquent party of the attorney's fees of the aggrieved party. An award of attorney's fees is a discretionary matter that will be disturbed only upon a showing of an abuse of discretion. Bayne v. Johnson, 403 N.J. Super. 125, 145 (App. Div. 2008), certif. denied, 198 N.J. 312 (2009).

On appeal, defendant argues that the judge failed to exercise the discretion accorded to him in assessing fees, regarding that discretion to have been eliminated as the result of our prior opinion. We disagree. The transcript of argument on February 9, 2011 discloses that the fees awarded were for the period from January 22 to January 30, 2009 a period greater than the single day upon which plaintiff failed to appear. That the judge awarded fees for that period of time suggests that he considered preparation time in addition to such time as counsel spent in attending the aborted hearing particularly since the hearing was to be only one hour in duration.2 However, because the statement of services upon which the judge's ruling was based is not contained in the record on appeal, we are unable to analyze the matter further.

Defendant seeks in addition to the $1661 awarded to him in attorney's fees the sum of $4,563.86 billed for the period from January 17, 2009 through February 20, 2009. He notes in that regard counsel's certification that her office

was required to prepare for a plenary hearing and personally serve eight witnesses with subpoenas to compel their attendance in court. The plaintiff failed to appear at the hearing, rendering the preparation for the hearing moot, as well as the expenses therefore. As a result of plaintiff's failure to appear, defendant has again incurred legal fees and expenses preparing for this Order to Show Cause.

10. The total for counsel fees and costs that were incurred by the firm of Tonneman, Vuotto, Enis, LLC for this time period is broken down as follows:

From January 17, 2009 through February 20, 2009

$ 4,281.50 in fees

$ 277.04 in costs

$ 4,563.86

While this statement indicates that counsel was required to prepare for the hearings on the e-mails and order to show cause, it does not state that all fees incurred in the period from January 17 through February 20, 2009 were for work in connection with that preparation. Additionally, no explanation has been provided to account for the apparent partial overlap between the services referenced here and the services encompassed in the bill for $1,661. As a result, we find no abuse of discretion by the judge in failing to include these fees in the award.3 We note in this regard that the judge did include in his award the costs of subpoenaing witnesses.

As a final matter, we find the judge acted within his discretion in determining not to award fees resulting from plaintiff's motion for reconsideration of the order of contempt.

1 It is apparent to us that the judge's focus changed from the consequences of plaintiff's failure to appear on January 26, 2009 to plaintiff's general course of conduct. While the judge might have properly awarded fees to defendant as the result of a successful challenge to that conduct, he misused his discretion in awarding such fees in the context of a sanction for a single-day non-appearance.

2 Defendant's counsel billed her legal services at $425 per hour.

3 We note that no detailed entries are provided describing the work performed in this period of time.