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DOCKET NO. A-5858-07T15858-07T1








Submitted March 11, 2009 - Decided

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Essex County, Docket No. FM-07-81-07.

Cutler, Simeone, Townsend, Tomaio & Newmark, L.L.C., attorneys for appellant (Gina L. Campanella, on the brief).

Skoloff & Wolfe, P.C., attorneys for respondent (Jonathan W. Wolfe, of counsel; Barbara A. Schweiger and Kimber L. Gallo, on the brief).


Defendant, Jeffrey Allman, appeals from the July 3, 2008 denial of his motion for reconsideration of a March 28, 2008 order that awarded counsel fees of $5,000 to plaintiff, Lara Allman. He also appeals from that portion of the July 3, 2008 order that awarded plaintiff an additional $2,075 in counsel fees for expenses she incurred in opposing his motion for reconsideration. He asserts that the court erred when it assessed counsel fees based on his failure to participate in mediation to resolve parenting time disputes, and incorrectly applied the provisions of Rule 5:3-5(c). We affirm.


The parties were divorced on August 29, 2006. The parties' Property Settlement Agreement (PSA) required them to "attempt mediation of any dispute" arising under the PSA or "concerning their child." The PSA specifically provided that it was the parties' "intention to first attempt mediation in good faith before resorting to litigation." Their agreement also provided that residential custody of the parties' then three-year-old son would remain with plaintiff.

One year after the divorce, defendant moved over an hour away from Hoboken, to Garrison, New York, some fifty miles north. When disputes arose concerning the exercise of parenting time, defendant proposed that the parties attend mediation to resolve those disputes. Although plaintiff was initially somewhat resistant, she ultimately attended a preliminary mediation session on December 19, 2007. Thereafter, defendant canceled the second mediation session the day before it was to occur and never responded to the mediator's request to reschedule another session. After refusing to continue with mediation, defendant, on February 15, 2008, filed a motion to change custody and authorize him to remove the parties' son from New Jersey to New York. In her cross-motion, plaintiff urged the court to deny defendant's application in its entirety, and compel defendant to return to mediation to address the parenting issues, as required by the PSA.

After oral argument on the motions, Judge Convery ruled on March 28, 2008 that defendant had failed to make a prima facie showing of changed circumstances. He therefore denied defendant's application for a change of custody and relocation of the minor child to New York. In so ruling, the judge reasoned that at the time of the parties' divorce, they decided to live in the same community, Hoboken. The judge observed that defendant could not simply move out of New Jersey, and then "say, 'I moved therefore that's a change of circumstances.'" The judge reasoned, "You can't self-help yourself by creating a change of circumstances." The judge also found that there was no conceivable basis for an application for relocation because having conceded he could operate his business by computer, there was no business necessity for a relocation to New York. Having found that defendant's relocation and custody motions were meritless, the judge ordered defendant to pay plaintiff $5,000 in counsel fees and costs, no later than April 11, 2008.

Defendant never paid the court-ordered $5,000 counsel fee. Instead, he filed a motion seeking reconsideration of that counsel fee award. In his July 3, 2008 written decision, Judge Convery observed that defendant had failed to "raise any evidence that was unavailable at the time of the underlying motion" and had failed to identify "any palpable error on the part of the court." The judge reasoned that the court had previously explained its reasons for awarding plaintiff counsel fees, and defendant was "essentially seeking to rehash the same issues addressed at the March 28th motion hearing." Consequently, the judge denied defendant's motion for reconsideration, and awarded plaintiff an additional $2,075 for having to oppose defendant's meritless motion for reconsideration.

On appeal, defendant maintains that because he had indeed participated in the mediation process, the court erred when it awarded counsel fees to plaintiff on March 28, 2008. He further argues that the judge misapplied the provisions of

Rule 5:3-5(c), and that the counsel fees awarded on March 28 and July 3, 2008, were improperly awarded.


We review the denial of a motion for reconsideration for an abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). A court abuses its discretion only "when a decision is 'made without a rational explanation, inexplicably departed from an established policy, or rested on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

We turn first to Judge Convery's award of $5,000 in counsel fees to plaintiff on March 28, 2008. Contrary to defendant's assertions, the record demonstrates that Judge Convery awarded those counsel fees not because defendant refused to attend any mediation sessions, but rather because defendant refused to attend any sessions beyond the initial meeting. The judge pointed to defendant's blatant and unwarranted refusal to attend any further mediation sessions, despite the express provision of the PSA requiring him to do so. Then, the judge held, after reneging on his obligations under the PSA, defendant took the additional step of filing a groundless motion to relocate his son to New York. We discern from the judge's remarks a conclusion that in light of all of the circumstances, defendant's filing of the motion was in bad faith. Under those circumstances, the award of counsel fees was proper. Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (holding that where the moving party acts in bad faith, the relative economic circumstances of the parties have little relevance, as the purpose of the award is to protect the innocent party from the cost of having to defend against a meritless application); see also Yueh v. Yueh, 329 N.J. Super. 447, 460-61 (App. Div. 2000) (approving the Kelly analysis).

Defendant also argues that the award of counsel fees was improper because the judge ignored the Rule 5:3-5(c) requirement that a judge consider the parties' relative ability to pay counsel fees. We cannot find fault with the judge's failure to consider the parties' relative financial circumstances, as neither party submitted such information to him. We therefore affirm Judge Convery's award of counsel fees to plaintiff on March 28, 2008, which was well within his discretion.

The award of counsel fees during the July 3, 2008 reconsideration motion was even more well-justified. Defendant had refused to pay the counsel fees the court ordered during the March 28, 2008 motion hearing, thus causing plaintiff to incur counsel fees to file a cross-motion for enforcement. Moreover, plaintiff was entitled to counsel fees to compensate her for the expense incurred in opposing defendant's motion for reconsideration, which was meritless. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (holding that a motion for reconsideration should be denied when it is filed "merely because of [the litigant's] dissatisfaction with a decision of the [c]ourt").






April 3, 2009


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