LUCAS R. LAMB v. JILL A. LAMB

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LUCAS R. LAMB,

Plaintiff-Respondent,

v.

JILL A. LAMB

n/k/a PHOENIX FEELEY,

Defendant-Appellant.

October 2, 2014

Argued September 24, 2014 - Decided

Before Judges Waugh and Carroll.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1623-00.

David C. Bendush argued the cause for appellant.

Susan B. McCrea argued the cause for respondent.

PER CURIAM

Defendant Jill Lamb, n/k/a known as Phoenix Feeley, appeals from portions of a July 8, 2013 post-judgment order (1) compelling her to comply with obtaining a passport for the parties' fourteen-year-old daughter A.L. so that A.L. could accompany her father, plaintiff Lucas Lamb, on a Disney cruise to the Bahamas; and (2) awarding plaintiff attorney's fees of $3385. For the reasons that follow, we determine that the passport issue is moot and affirm the counsel fee award.

The parties were married on April 9, 1999. They divorced on March 5, 2002, pursuant to a final judgment of divorce that awarded them joint custody of A.L. Defendant is the parent of primary residence and plaintiff is the parent of alternate residence. Although the pleadings are not part of the record, both parties assert that they have had a contentious and hostile relationship since their divorce, resulting in numerous court filings.

The current dispute arises from a Disney cruise trip that plaintiff planned to begin on November 15, 2013. The planned trip included A.L. along with plaintiff's current wife and their two children. On April 18, 2013, plaintiff e-mailed defendant the trip details, including the flight information, applicable trip dates, and a link to the Disney cruise website. On May 6, 2013, plaintiff explicitly asked defendant to confirm that she agreed to the trip. In response, defendant confirmed that she agreed so long as A.L. did not have any conflicts at school.

The e-mail communications between the parties also prompted discussion of A.L.'s passport. Plaintiff asked whether A.L.'s passport was current, and he stated that he would take A.L. to update her passport during one of his visitations if it was expired. Defendant replied that she believed the passport was expired.

In a subsequent e-mail chain beginning on June 10, 2013, plaintiff asked defendant to either have the required passport form notarized so he could take A.L. to get a new passport, or to obtain the passport if he gave her the notarized form. Plaintiff further advised defendant that she could keep the passport in her possession after the trip. Plaintiff stated that July 1, 2013 was the last day he could get a refund for A.L.'s ticket for the trip, so that defendant needed to sign the form or obtain the passport for A.L. by that date.

The parties then disagreed about the passport requirement. Plaintiff claimed that according to the recommendation of the Disney Cruise Line, A.L. should have a passport because in the event that she were to become ill on the cruise, she would not be able to receive immediate medical attention in the United States without a passport allowing her to proceed through customs in the Bahamas. Defendant claimed that children under the age of sixteen, such as A.L., do not need a passport for cruises to the Bahamas. She cited numerous sources for this contention, including the Western Hemisphere Travel Initiative ("WHTI"), the WHTI website, the Department of State website, and information from the Disney Cruise Line.

The passport issue remained unresolved. Consequently, on June 24, 2013, plaintiff filed an Order to Show Cause to compel defendant's compliance with the passport procedure. On the July 8, 2013 return date, the court found no material facts in dispute, and that the legal right underlying plaintiff's claim was well-settled, reasoning

They agreed that the child could go on the cruise. [Defendant] put it in an e-mail, [and] in addition . . . [plaintiff] has parenting time, pursuant to the property settlement agreement.

The court ordered defendant to cooperate in obtaining a passport for A.L., and that she "fully execute any and all forms/documents reasonable and necessary" toward that end.

Noting that he "[could not] imagine a party more lacking of reasonableness and good faith tha[n] [defendant]," the judge granted plaintiff's request for counsel fees in the amount of $3385. The judge further opined

Certainly, the chance for a child to have their life enriched by going on a Walt Disney [c]ruise, which for reasons known only to her . . . she seems to oppose it. It's just absolutely incomprehensible to this [c]ourt. Hard not to be infuriated by it, quite frankly.

This appeal ensued.

"Generally, the special jurisdiction and expertise of the family court requires that we defer to factual determinations if they are supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). We owe "particular deference" to the family courts because of their "special jurisdiction and expertise in family matters." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "The Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001).

However, we will not defer to a family court's decision where the court abused its discretion. See, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" Milne, supra, 428 N.J. Super. at 197 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)) (internal quotation marks and citation omitted). The family judge's legal decisions are subject to this court's plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

In her brief on appeal, defendant essentially concedes that there was no disputed factual issue before the court, as "[i]ndisputably, [she] had consented to allow [A.L.] to go with plaintiff on the Disney [c]ruise." Further, she concedes that "the passport issue is moot" as she has executed the passport documents and the cruise has taken place. Notwithstanding, she argues that she did not act in bad faith, that no passport was legally required for her daughter to go on the cruise, that the trial judge improperly relied on his own personal experience in deciding the passport issue, and that the court erred in awarding plaintiff counsel fees without analyzing the required factors. Plaintiff responds that defendant acted entirely in bad faith by reneging on her agreement to allow A.L. to travel, in an effort to thwart his visitation.

Because we conclude that the passport issue is moot, as defendant concedes, we decline to decide the issue. A matter is considered moot "when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303 (1975)). Furthermore, an issue is considered moot "when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting N.Y. Susquehanna & W. Ry. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)).

Generally, courts will not decide issues when there is no longer a controversy and the disputed issues have become moot because "mootness is a threshold justiciability determination." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311(App. Div. 2010). Courts will not hear disputes that are moot because the power of the judiciary should only be exercised when a party is threatened with immediate harm. Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).

In limited instances, courts will address the merits of appeals that have become moot, electing to do so "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996); see also Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998); In re Conroy, 98 N.J. 321, 342 (1985).

In the present case, the issue of whether the court had a proper legal basis for determining that a passport was required and, therefore, whether defendant could resist cooperation, is no longer a disputed issue. Defendant has complied with the requirements to obtain the passport and A.L. received it in time to attend the trip. Plaintiff agreed that defendant could hold the child's passport when the trip concluded. The issue is not of significant public interest nor is it capable of repetition yet evading review. Accordingly, we dismiss this aspect of the appeal as moot.

We next consider defendant's argument that the court erred in awarding plaintiff counsel fees. She contends that the judge failed to analyze the required factors under Rule 5:3-5(c), and instead focused solely upon the bad faith factor. Additionally she asserts that she did not act in bad faith, contrary to the trial court's finding.

A judge in a matrimonial action may award a party reasonable attorney's fees and costs, and in making that determination "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. See R. 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007), and will be disturbed "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) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

Certainly the judge's analysis of the relevant factors could have been more detailed. Nonetheless, the record indicates that the counsel fee awarded to plaintiff was the direct result of his efforts to compel defendant's compliance with the agreed-upon visitation. There is no indication that the fee was unreasonable. The judge acknowledged that he possessed only a limited picture of the parties' financial circumstances. He expressly noted that his decision on attorney's fees was shaped by the provisions of Rule5:3-5(c) and the factors for consideration set forth therein. The judge made findings of bad faith on defendant's part in refusing to facilitate the passport process to ensure that A.L. could accompany her father on the trip. A party's bad faith weighs heavily into the appropriateness of an award of attorney's fees. SeeMani v. Mani, 183 N.J.70, 95 (2005). "'[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 v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992). Here, the court's finding of bad faith finds ample support in the record, and compels us to affirm the counsel fee award.

Dismissed in part. Affirmed in part.