ABRA DICKSON v. PETER O. HANSSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4464-12T4

ABRA DICKSON, f/k/a ABRA HANSSON,

Plaintiff-Appellant,

v.

PETER O. HANSSON,

Defendant-Respondent.

___________________________________0

September 24, 2014

Submitted August 27, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Mercer County, Docket No. FM-11-924-99B.

Abra Dickson, appellant pro se.

Respondent Peter O. Hansson has not filed a brief.

PER CURIAM

In this post-judgment dissolution matter, plaintiff Abra Dickson (f/k/a Abra Hansson) appeals from the Family Part's April 12, 2013 order awarding her former husband, defendant Peter O. Hanson, counsel fees in the amount of $3200 relative to his successful motion to enforce the court's earlier order compelling plaintiff to refund to defendant his overpayment of child support. On appeal, plaintiff argues that an award of counsel fees was not warranted because she did not "act in bad faith," the trial court failed to properly apply Rule 5:3-5(c) in making the award and the fee awarded was "grossly disproportionate to the amount in dispute." Because plaintiff has failed to supply us with a complete record of the certifications filed with the Family Part, we are not in a position to properly evaluate plaintiff's arguments and, as to her argument that she did not act in bad faith, we agree with the Family Part's determination. We therefore affirm.

I.

We discern the following facts from the limited record provided for our review.

The Family Part entered an order in November 2012 modifying defendant's child support obligation in accordance with earlier orders in which the court recognized that child support had to be modified when the parties' daughter's college expenses were established. In the November order, the court terminated defendant's child support obligation, effective August 31, 2012, based on the parties' settlement agreement's requirement that defendant pay 100% of the child's college expenses of approximately $46,000. After the order's entry, defendant's counsel wrote to plaintiff asking for a refund of the September through November child support payments defendant made prior to receiving the court's order, totaling $2826. Plaintiff responded by telling counsel that she gave the money to the parties' daughter who spent it on her expenses. As a result, if defendant sought a refund he should seek it from his daughter. Plaintiff and counsel exchanged additional letters which did not resolve the issue.

In February 2013, defendant filed a motion to enforce the court's November order. The motion included a request for counsel fees.1 Plaintiff filed a certification in opposition to defendant's motion which included a "motion for clarification and/or judicial notice regarding defendant's motion for reimbursement."2

In her certification, plaintiff denied any obligation to repay the overpayment of child support because she gave the money to her daughter, with defendant's knowledge. In addition, she stated, "my genuine dispute as to [defendant's] claim is not the basis for bad faith and/or attorney's fees and costs" because she believed she had no obligation to repay defendant under the circumstances. Plaintiff also opposed any attempt by defendant to recoup his overpayment from his daughter by reducing the court ordered amount he was to pay for her college expenses. Also, plaintiff informed the court about alleged details of their daughter's failed attempt to negotiate a written agreement, as proposed by defendant, for the repayment of the disputed funds. In her description, she made reference to statements allegedly made by defendant in his certification and case law upon which he allegedly relied in support of his claim, evidently contained in a letter to the court from defendant's counsel.3

Plaintiff argued in her certification that defendant was not entitled to an award of counsel fees. Citing to federal cases, Rule 4:42-9, the Law Division's decision in Bergen County Sewer Authority v. Borough of Bergenfield, 142 N.J. Super. 438, 450 (Law. Div. 1976), and our decision in Hatch v. T & L Associates, 319 N.J. Super. 644, 647 (App. Div. 1999), plaintiff argued that because there was a genuine dispute as to her obligation to repay defendant, fees should not be awarded. In her argument, plaintiff again referenced statements made by defendant in his certification and its attached exhibits.4

Based on the parties' written submissions, the Family Part judge entered an order on March 22, 2013 requiring plaintiff to pay defendant the $2826 in overpaid child support within seven days and, if she failed to do so, permitted defendant to deduct the amount of $100 each month from the amount he paid monthly towards their daughter's college expenses. The court also ordered plaintiff to pay $1500 to defendant's attorneys for counsel fees and costs. According to the court's statement of reasons, it made that award because "the obligation of repayment and the amount of repayment of 'child support' . . . was not in dispute [and d]efendant attempted to resolve the issue with both plaintiff and their daughter prior to filing this motion to no avail." Evidently the court determined the amount of the counsel fee award from a certification of services filed by defendant's counsel.5 In its subsequent April 12, 2013 order, the court increased the counsel fee award to $3200 because it previously "overlooked" "an amended certification of services [which] had been submitted to the Court with the Defendant's reply certification."6

Plaintiff appealed from the April order on May 28, 2013. In response, on June 11, 2013 the Family Part judge entered a "supplemental order" which contained an amplification of his reasoning, pursuant to Rule 2:5-1(b), for the award of counsel fees to defendant.7 In that order the judge confirmed that the certification of services it considered complied with R.P.C. 1.5. From the information contained in the certification, the court was satisfied that the rate charged was reasonable and that a reduction from $4117.50 to $3200 was appropriate because "certain services were duplicative and/or unreasonable." Also, "[t]he amount of the fees requested or Plaintiff's ability to pay was not challenged." Further, the court reasoned that the motion itself was unnecessary as the amount of the child support overpayment was not in dispute and "the method of repayment suggested by Plaintiff was unreasonable in view of Leonard v. Woodruff, 354 N.J. Super. 135 (Ch. Div. 2001)."

II.

"An allowance for counsel fees and costs in a family action is discretionary" but requires a court to consider the factors "enumerated in Rule 5:3-5(c)." Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). That rule incorporates the factors listed in Rule 4:42-9, including its reference to R.P.C. 1.5. Among the factors contained in those two rules is the good faith of the parties, reasonableness of the rate charged by the attorney and the amount of time expended.

We review a trial court's award of counsel fees for an abuse of discretion. Ibid. In order to perform our function with regard to determining the reasonableness of the amount awarded, we minimally require copies of the certifications and exhibits considered by the trial court in its determination of a counsel fee award. "A party on appeal is obligated to provide the court with the 'parts of the record . . . as are essential to the proper consideration of the issues.'" Society Hill Condominium Ass'n Inc. v. Society Hill Associates, 347 N.J. Super. 163, 177 (App. Div. 2002). Where a party "present[s] the matter to us in a manner which render[s] our review on the merits impossible, we have no alternative but to affirm." Id. at 177-78.

Plaintiff has not provided us with any of the information considered by the trial court when it calculated the fee award. As a result we are in no position to determine whether such an award was an abuse of the court's discretion and we must therefore affirm.

We also affirm the court's determination that plaintiff's opposition to enforcement of the court's earlier order was made in bad faith. For a court to award counsel fees based on a party's bad faith, there must be evidence of something more than a showing of an unreasonable, mistaken or frivolous position. Kelly v. Kelly, 262 N.J. Super. 303, 308, (Ch. Div. 1992). There must be evidence that a party had malicious motives, was unfair, desired to destroy the opposing party, or used the court system improperly to force a concession which was not otherwise available. Ibid. Bad faith includes unwillingness to negotiate; intentional non-compliance with court orders; seeking relief for which one knows or should know no reasonable argument can be made; intentionally misrepresenting the facts or the law; or pursuing litigation for oppressive reasons. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (App. Div. 1992). "'[W]here one party acts in bad faith, the relative economic position of the parties has little relevance' because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000) (quoting Kelly, supra, 262 N.J. Super. at 307).

Applying that standard here, we can discern no abuse of discretion by the court's award of counsel fees in this case. Plaintiff intentionally failed to comply with the court's order directing repayment, taking the unreasonable position that the child support should be reimbursed by her daughter and not by plaintiff. Her decision to give the child support to her daughter did not relieve her of the obligation to refund the overpayment.

Affirmed.

1Plaintiff's appendix does not contain defendant's certification filed in support of that motion.

2The appendix does not contain a notice of cross motion filed by plaintiff, if any.

3 This letter was also omitted from plaintiff's appendix.

4 Plaintiff concluded her certification by asking the court to take judicial notice of the alleged fact that defendant's obligations for the parties' daughter's college expenses only totaled approximately $35000 rather than $46000 as originally found by the court.

5 The certification is not included in plaintiff's appendix.

6 Neither of which were included in plaintiff's appendix.

7 We question why the court would have entered an order for that purpose.