HERNAN FRANK SOCARRAS v. MARIA VALENCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HERNAN FRANK SOCARRAS,

Plaintiff-Respondent,

v.

MARIA VALENCIA,

Defendant-Appellant.

May 1, 2014

Submitted February 4, 2014 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2083-08.

Paul E. Fernandez, attorney for appellant.

McNerney & McAuliffe, attorneys for respondent (Mark P. McAuliffe, on the brief).

PER CURIAM

Defendant Maria Valencia appeals the November 30, 2012 Family Part decision denying her relief from a consent order obligating her and her former husband, plaintiff Hernan Frank Socarras, to engage the services of a parenting coordinator. She also appeals from the judge's grant to plaintiff of a $2000 counsel fee, and an earlier $1000 award. We affirm.

The parties, who have a thirteen-year-old daughter principally residing with defendant, divorced in 2009. On October 21, 2011, they appeared in court on a motion and cross-motion regarding plaintiff's requests for an increase in parenting time and contribution for unreimbursed medical expenses on behalf of the child. Plaintiff was represented by counsel, defendant was not. During the course of the proceedings, the court suggested that the parties employ a parenting coordinator to assist them with their child-related disputes, including both plaintiff's request for an increase in parenting time as well as unreimbursed medical costs. On the record, defendant agreed. During a break, she and plaintiff selected Judith Brown Greif as the coordinator, and once back on the record, defendant reiterated her consent. She signed an order designating Greif as the coordinator.

Over a year later, plaintiff filed a motion seeking to compel defendant to pay her half of the initial fee. Defendant responded that the services of the coordinator were no longer necessary since she and plaintiff had, shortly after their court appearance, agreed to the expansion of his parenting time. She also objected on the basis that she could not afford the $1500 payment because she had invested a portion of her equitable distribution in a struggling restaurant business and had limited income as a result.

In rendering his decision, the Family Part judge observed that the services of the parenting coordinator appeared to be more necessary than ever. He denied defendant's request for a plenary hearing on the issue, concluding that the time for seeking modification of the consent order had long since passed. Because plaintiff was required to seek enforcement of the prior order, which the court found that defendant had violated while having the ability to pay, he awarded plaintiff's counsel an additional $2000 in legal fees. The prior award of $1000 in attorney's fees from the October 2011 hearing, also unpaid, was reduced to a judgment.

Defendant now appeals, raising the following points for our consideration:

POINT ONE

THERE WAS NO NEED FOR PARENTING COORDINATOR AS THE PARTIES OPENLY DISCUSSED THE CHILD'S VISITATION SCHEDULE.

(i) APPELLANT'S FINANCIAL INABILITY PRECLUDED HER FROM RETAINING A PARENTING COORDINATOR.

POINT TWO

REIMBURSEMENT OF THE CHILD'S EXPENSES WAS UNWARRANTED AS THE PLAINTIFF UNILATERALLY ENGAGED THE SERVICES OF A PSYCHOLOGIST.

(i) RESPONDENT IS IN A BETTER POSITION TO PAY FOR THE SERVICES HE SOUGHT.

POINT THREE

THE LOWER COURT'S ORDER OF COUNSEL FEES ASSESSED AGAINST THE APPELLANT WAS UNWARRANTED UNDER THE CIRCUMSTANCES.

(i) THE APPELLANT DID NOT ACT IN BAD FAITH WARRANTING A $3,000.00 SANCTION.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). A Family Part judge's findings of fact are accorded special deference because of his or her "special jurisdiction and expertise in family matters." Id. at 413.

We consider defendant's first two points to be so lacking in merit as to not warrant much discussion in a written opinion. R. 2:11-3(e)(1)(E). With regard to defendant's attempt to repudiate her agreement to obtain the services of the parenting coordinator, we agree with the judge that the parties still need the services of the parenting coordinator. As to the unreimbursed medical expenses, the judge did not render a decision but merely deferred the matter to the parenting coordinator. We do not address defendant's first two points any further.

As to defendant's third point, an allowance for counsel fees is clearly permitted in a Family Part action, governed by Rules 5:3-5(c) and 4:42-9(a)(1). To determine the extent to which such an award is appropriate, the court must consider:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

The trial court's assessment of counsel fees is discretionary. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). The court "will disturb a trial court's determination on counsel fees only on the rarest occasion, and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (internal quotation marks omitted).

As to the $1000 in counsel fees ordered in 2011, defendant took no appeal from that order. She offers no fact or law which makes it error to reduce the award to a judgment.

In requiring defendant to pay an additional $2000 in fees, the Family Part judge correctly found defendant to be in contempt of the earlier order, to which she had consented. He found plaintiff's attorney's hourly rate to be reasonable. The judge found defendant to have assets and the capacity to pay the additional $2000 awarded on this occasion. Thus we see no error in the judge's calculation on this score either.

Affirmed.