KLAUS BRINKRODE v. KATHRYN BRINKRODE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KLAUS BRINKRODE,

Plaintiff-Respondent,

v.

KATHRYN BRINKRODE,

Defendant-Appellant.

_____________________________

July 11, 2016

Argued January 4, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1424-10.

Milagros Camacho argued the cause for appellant (Camacho Gardner & Associates, L.L.P., attorneys; Ms. Camacho, of counsel and on the brief; Bradley A. Latino, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Kathryn Brinkrode appeals from the September 20, 2013 Family Part order, which, pursuant to Rule 1:2-4, ordered her attorneys, Camacho Gardner & Associates, L.L.P., to pay the attorney's fees incurred by plaintiff Klaus Brinkrode as a result of failure of Milagros Camacho, Esq.1 to timely appear for a motion hearing. Defendant also appeals from the March 10, 2014 order, which denied her motion for reconsideration and ordered Camacho to pay attorney's fees plaintiff incurred for the reconsideration motion. For the following reasons, we affirm.

This post-judgment matrimonial matter involves an ongoing dispute between the parties over their child. Plaintiff claimed he had not seen his child in a year. Motions had been filed and scheduled for oral argument at 9:00 a.m. on September 20, 2013. At Camacho's request, plaintiff's attorney consented to scheduling the motion hearing for 1:30 p.m. Two hours before the hearing, Camacho contacted the trial judge, requesting an adjournment because she had to appear in a juvenile matter for which she was retained the prior evening. Plaintiff's attorney did not consent to the adjournment. The judge denied an adjournment.

Plaintiff and his attorney appeared at 1:30 p.m., but Camacho did not appear.2 Instead, she appeared in the juvenile matter. When the juvenile matter concluded, Camacho did not appear in this matter and had to be located by the judge's sheriff's officer. Camacho finally appeared at approximately 3:30 p.m.

According to plaintiff, this was not the first time Camacho appeared late for a hearing. Plaintiff certified that Camacho had "been late to court more often than she [had] been on time" and, as a result, he and his attorney "[s]pent hours in total waiting for her" while he was being charged attorney's fees.

Following the motion hearing, the judge confirmed she had denied Camacho's adjournment request and noted this was not the first time Camacho made a late adjournment request and failed to timely appear for a motion hearing in this case. The judge emphasized that "this . . . entire case has been replete with [Camacho's] requests for adjournments, with [her] notifications that [she was] going to be late, with [her] notifications that [she was] in another [c]ourt. It [was] constant." In a September 20, 2013 order, the judge ordered Camacho to pay $700 for plaintiff's attorney's fees, representing two hours of the attorney's time waiting for Camacho to appear.

On defendant's behalf, on October 29, 2013, Camacho filed a motion for reconsideration, which the judge denied as untimely. Camacho then filed a second motion for reconsideration, arguing the judge applied the wrong deadline. In a March 10, 2014 order and written opinion, the judge agreed the original reconsideration motion was timely filed, but denied the motion, finding as follows

[Plaintiff's counsel] and her client were present for the scheduled motion hearing at 1:30 [p.m.] [] Camacho failed to arrive until 3:30 [p.m.] Although [Camacho] requested an adjournment with the [c]ourt earlier that day, said request was expeditiously evaluated and unequivocally denied despite her claims to the contrary. The [c]ourt takes note [] Camacho was handling a contemporaneous juvenile matter, however, her participation therewith does not provide a basis for her to ignore her obligations before this [c]ourt. [Camacho's] deliberate absence caused [p]laintiff to unnecessarily incur $700 in additional legal fees.

The judge determined there was no just excuse for Camacho's late appearance, reasoning as follows

Camacho, at her own discretion, chose to attend her juvenile matter with full knowledge that she had a prior obligation to be present before this [c]ourt. Her adjournment request was reviewed and denied based upon the [c]ourt's discretion. [] Camacho failed to send another attorney in her place or send another attorney to handle her juvenile matter. Therefore, the [c]ourt finds no "just excuse" for her failure to timely appear. The [c]ourt does not find this sanction excessive or irrational, but rather, logical in light of the unnecessary costs incurred by [p]laintiff.

The judge affirmed the $700 fee award and ordered Camacho to pay it within seven days or face a sanction of $5 per day for each day the $700 remained unpaid. The judge also ordered Camacho to pay an additional $750 for attorney's fees plaintiff incurred for the motion for reconsideration, finding the motion was without merit and caused plaintiff to incur additional unnecessary fees. This appeal followed.

On appeal, defendant argues the judge should have granted an adjournment; Camacho had "just excuse" for an adjournment and gave "reasonable attention" to the scheduling conflict; and the judge erred in imposing the additional sanctions. We disagree with these arguments.

We defer to the trial court in matters concerning adjournment requests and scheduling. State ex rel. Comm'r of Transp., 432 N.J. Super. 1, 7 (App. Div. 2013). We review a trial court's decision to grant or deny an adjournment request for abuse of discretion. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 574 (2003). We review a trial court's imposition of either attorney's fees or sanctions for abuse of discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001). We also review a judge's decision on a motion for reconsideration for abuse of discretion. Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 383 (App. Div. 2015). "An abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J.6, 20 (2008) (quoting State v. Torres, 183 N.J.554, 572 (2005)), and occurs when the trial court's "decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super.184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J.561, 571 (2002)). Applying these standards, we discern no abuse of discretion here.

An attorney "shall act with reasonable diligence and promptness in representing a client[,]" Rules of Professional Conduct (RPC) 1.3, and "make reasonable efforts to expedite litigation consistent with the interests of the client[.]" RPC 3.2. An attorney also has a duty to the court to obey an obligation under the rules, RPC 3.4(c), and must not engage in conduct that will disrupt the court. RPC 3.5(c). These duties include appearing timely for motion hearings.

A trial court has the discretion to impose sanctions on those who fail to appear. See Kohn's Bakery, Inc. v. Terracciano, 147 N.J Super. 582, 584-85 (App. Div. 1977). Rule 1:2-4(a) governs sanctions for failure to appear and provides as follows, in pertinent part

If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar . . . the court may order any one or more of the following: (a) the payment by the delinquent attorney . . . of costs . . . to the adverse party; (b) the payment by the delinquent attorney . . . of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint . . .; or (d) such other action as it deems appropriate.

[(Emphasis added).]

The award of counsel fees is an appropriate response to any conduct that inconveniences or wastes the time of an adversary. Rabboh v. Lamattina, 312 N.J. Super. 487, 493 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999).

Under the facts presented here, we are satisfied the judge was well within her discretion to deny an adjournment and require Camacho to pay plaintiff's attorney's fees for failure to timely appear for the motion hearing and for the motion for reconsideration. This was not Camacho's first dereliction in this case. Camacho had a history of making late adjournment requests and not timely appearing in this case, apparently opting instead to tend to other matters she deemed more important. Camacho's conduct constituted a breach of her duty to the court to obey the judge's order to appear at 1:30 p.m. and not disrupt the court's calendar. Camacho failed to timely appear for the motion hearing without just excuse and failed to give reasonable attention to this matter. Her conduct more than justified the imposition of initial attorney's fees and the attorney's fees imposed for the motion for reconsideration. If not already paid, Camacho shall pay both fees within thirty days of the date of this opinion or face the additional sanctions provided in the March 10, 2014 order.

Affirmed.

1 We shall hereafter collectively refer to Camacho Gardner & Associates, L.L.P. and Milagros Camacho, Esq. as Camacho.

2 Defendant certified that she was in the courtroom "early [on September 20, 2013]" and did not see plaintiff or his attorney, but she did not specifically say she was in the courtroom at 1:30 p.m. The judge found in her March 10, 2014 written opinion that plaintiff and his attorney were present at 1:30 p.m.