CARLENE MAGURNE v. ANTHONY MAGURNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0973-06T10973-06T1

CARLENE MAGURNE,

Plaintiff-Appellant,

v.

ANTHONY MAGURNE,

Defendant-Respondent.

_____________________________________________________________

 

Submitted August 28, 2007 - Decided September 4, 2007

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2565-99.

Carlene Magurne, appellant pro se.

Sher & Blackwell, attorneys for respondent (Paul M. Tschirhart, of counsel and on the brief).

PER CURIAM

Plaintiff Carlene Magurne appeals from a September 22, 2006, order that 1) denied her post-judgment motion seeking reimbursement of medical expenses for her children, and 2) awarded defendant counsel fees and costs. She raises three points on appeal.

POINT I

THE TRIAL COURT ERRED WHEN IT REFUSED TO ENFORCE EXISTING COURT ORDERS.

POINT II

THE TRIAL COURT ERRED WHEN IT WALKED OFF THE BENCH, REFUSED TO HEAR PLAINTIFF AND CHANGED THE LANGUAGE OF AN EXISTING COURT ORDER WITHOUT SUPPORT TO DO SO.

POINT III

THE COURT ABUSED ITS DISCRETION IN ASSESSING LEGAL FEES AGAINST THE PLAINTIFF.

Defendant Anthony Magurne contends that the judge correctly denied plaintiff's motion, or, alternatively, that portions of the motion are now moot. He also argues that the judge's order awarding him counsel fees and costs was appropriate.

We have carefully considered these contentions in light of the record and applicable legal standards. We reverse in part, affirm in part, and remand the matter to the motion judge for further proceedings consistent with this opinion.

The procedural history that led to this appeal is quite convoluted and requires some explication. Plaintiff and defendant were married in 1986 and had two children together --Amanda, born September 10, 1987, and Emily, born July 18, 1989. Since their divorce in 2000, they have appeared before the Family Part and before us in a number of post-judgment proceedings.

The details of the parties' marital history, their initial property settlement agreement, and the early post-judgment motion practice are set forth at length in our unreported decision in A-2202-05, decided February 15, 2007, and we need not recite them again at length. While that appeal was pending, plaintiff filed a pro-se motion seeking reimbursement from defendant for medical expenses incurred on behalf of their children.

In a letter dated February 27, 2006, the motion judge responded by informing both parties that "[p]ursuant to R. 2:9-1," the plaintiff's appeal from two prior 2005 orders involving "the issue of unreimbursed medical expenses" prohibited consideration of the motion. The judge entered an order dated March 18, 2006, "nunc pro tunc to February 17, 2006," staying the motion and cross-motion pending our decision.

In July, 2006, undeterred, plaintiff again moved pro-se for reimbursement of $1400 of medical expenses incurred on behalf of Amanda only. Plaintiff argued that these expenses were governed by a June 7, 2002, order, and not by the orders that were under appeal before us. The 2002 order provided in relevant part

The [d]efendant shall be responsible for all future unreimbursed medical expenses for the children provided the [p]laintiff utilizes network physicians, except if such providers were previously used prior to this Order and the [p]laintiff submits the bills to the [d]efendant or the insurance provider within a reasonable time.

Defendant opposed the application and argued that the medical provider in question, Ann Marie Cecere, an out-of-network social worker, never treated Amanda prior to June 7, 2002, and, under the terms of the order, he was not responsible for reimbursement. He also sought an award of counsel fees for having to oppose plaintiff's "frivolous challenge[]."

On September 22, 2006, the parties appeared before the motion judge. It is obvious from the transcript that the judge's patience with plaintiff's motion practice had worn thin. At one point, the judge, somewhat exasperated by what she perceived to be plaintiff's constant interruptions, stated,

Why don't you get your thoughts together? When you're ready to stop talking, I'll come back out.

The judge apparently then exited the courtroom and did not return until some later point in time.

On the merits of plaintiff's motion, the judge concluded that plaintiff had "fail[ed] to provide any proofs," that the "expenses claimed . . . for Amanda's treatments," were defendant's responsibility under the terms of the June 7, 2002, order. The judge determined that plaintiff had not proven that Cecere had ever treated Amanda prior to the date of the order, and, under the terms of the order, defendant was not responsible for those expenses.

Defendant then sought an award of counsel fees. Defense counsel argued "the only way that we are going to be able to stop the incessant appeals and letters and motions and everything else . . . is to tell [plaintiff] it's time she starts paying for all of this, that she starts paying for legal fees." The judge, without further explanation, determined plaintiff was responsible for counsel fees, characterizing the motion as "a huge waste of time and energy." She advised defense counsel to "submit a certification of services."

Apparently, before leaving the courtroom, defense counsel completed a form order that the judge executed and filed that day. By its terms, the order denied plaintiff's motion for unreimbursed medical expenses for Amanda, the judge finding that Cecere "treated [only] plaintiff, defendant and Emily" prior to the entry of the June 7, 2002 order. The judge further denied "plaintiff's motion for unreimbursed medical expenses for Emily" "pending the outcome of the appeal . . . ." Lastly, the order provided that "[d]efendant may be awarded attorney's fees and costs upon proper certification of counsel." Plaintiff then filed this appeal.

As noted above, on February 15, 2007, we decided plaintiff's appeal and defendant's cross-appeal of the motion judge's prior orders entered in 2005. Our decision affirmed in part, reversed in part, and remanded several issues to the judge for further consideration, with or without, a plenary hearing as necessary. In large measure, our opinion focused on the appropriate methodology to be utilized in the computation of child support, expenses, and alimony, and not on the precise issue of whether plaintiff or defendant was responsible for these particular medical expenses reflecting Cecere's treatment.

To the extent plaintiff challenges in Point I the motion judge's refusal to consider her request for reimbursement of Emily's medical expenses, the merits of the issue are not before us since they were never argued below. The motion judge entered a stay that initially postponed any resolution of that issue until our decision in A-2205-05 was filed. Plaintiff's motion that resulted in the order now under appeal simply never raised the issue.

Therefore, we cannot discern why the motion judge included this language in her order. We assume the judge has, or will, lift the stay and will consider plaintiff's request on its merits either independently or in the context of the remand proceedings. For purposes of clarification, therefore, we reverse that portion of the motion judge's order denying plaintiff's request for reimbursement of Emily's medical expenses and remand the matter to the motion judge for determination on the merits.

We also reverse that portion of the order that apparently awarded defendant an undetermined amount of counsel fees. While the award of counsel fees in a matrimonial action rests within the sound discretion of the judge, Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007), our court rules specifically guide the exercise of that discretion by listing those factors to be considered by the judge prior to making any award. R. 5:3-5(c). Our review of this record fails to disclose any consideration by the motion judge of these relevant factors. We therefore reverse that portion of her order and remand the matter for further consideration.

Lastly, plaintiff contends that the judge essentially changed the terms of the June 7, 2002, order without the production of any testimony or evidence demonstrating a change in circumstances. Since both parties acknowledge that Cecere provided counseling services to the Magurne family prior to that date, plaintiff contends that the express language of the order "protects" Cecere and assures payment from defendant for the services she rendered at any time to plaintiff or her daughters.

In reviewing the factual determinations made by the motion judge, we note that her findings and conclusions should not be disturbed if they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). And, in particular, we must "accord deference to family court factfinding," given the "family courts' special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Here, the motion judge explicitly found that Cecere was not treating Amanda at the time the June 7, 2002, order was entered. There was ample evidence in the record to support this conclusion. First, plaintiff herself admitted Cecere "said to [her], after seeing [her] and [her] children, the three of [them], that she could not treat Amanda because Amanda was possibly bipolar." Second, the bills produced failed to prove that Cecere was treating Amanda at the time. Third, and perhaps most persuasive, defendant produced a letter from Cecere in which she admitted treating Emily and "both Mrs. Magurne and Mr. Magurne," but acknowledged that a "separate psychiatrist and psychologist have always treated their other daughter, Amanda Magurne." Therefore, we find no basis to disturb the motion judge's determination that Cecere had not provided treatment to Amanda as of June 7, 2002.

Nor do we find plaintiff's interpretation of the language of the order to be persuasive. We think it is clear that although defendant was responsible for all future unreimbursed medical expenses, he was only responsible "provided the Plaintiff utilize[d] network physicians." The exception to this general rule occurred whenever the specific provider was "previously used prior to this Order." We believe it is clear that defendant was responsible for the unreimbursed bills of an out-of-network provider, like Cecere, only if that provider had previously provided treatment to the family member before June 7, 2002. Since Cecere never provided treatment to Amanda before then, the judge properly denied plaintiff's request and we therefore affirm that portion of the order that denied the reimbursement of $1400 in medical expenses attributed to Cecere's treatment of Amanda.

 
Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.

Defendant cross-moved to deny plaintiff's motion and sought other affirmative relief.

Although plaintiff's original motion, which was stayed, sought this reimbursement, the subsequent motion did not.

The record fails to disclose whether any certification was ever submitted and no order awarding counsel fees has apparently ever been entered.

(continued)

(continued)

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A-0973-06T1

September 4, 2007