E.C. v. C.W.Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
February 27, 2015
Argued December 3, 2014 Decided
Before Judges Fuentes, Ashrafi and Kennedy.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FD-04-3156-11.
Appellant argued the cause pro se.
Michael S. Rothmel argued the cause for respondent.
Plaintiff appeals an order of the Family Part denying her motion to vacate an earlier "consent order" entered by the court that gave her "sole legal and residential custody of the parties' minor child[,]" and, in return, "terminated" the "child support obligation" of defendant. Both provisions were entered "without prejudice." Further, the consent order provided that the court's earlier award of a counsel fee to defendant, as well as a contempt sanction against plaintiff in the sum of $5000 "shall be reduced to judgment" in favor of defendant. We reverse the order denying plaintiff's motion to vacate the consent order, as well as the order for contempt and counsel fees, and we remand the matter to the Family Part for further proceedings in accordance with this opinion.
Our review has been hampered, to a degree, by the failure of the parties to provide a complete record on appeal. Rule 2:5-4(a) states in relevant part
The record on appeal shall consist of all papers on file in the court or courts or agencies below, with all entries as to matters made on the records of such courts and agencies, the stenographic transcript or statement of the proceedings therein, and all papers filed with or entries made on the records of the appellate court . . . .
See also, R. 2:5-3(b) ("the transcript shall include the entire proceedings."); and R. 2:6-1(a) (the appendix must contain parts of the record "essential to the proper consideration of the issues."). While this serious deficiency might ordinarily prompt us simply to dismiss the appeal, Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:5-3 (2015); see also Cipala v. Lincoln Tech. Inst., 179 N.J. 45 (2004) (failing to provide the complete transcript may result in dismissal of the appeal); In re Zakhari, 330 N.J. Super. 493, 495, (App. Div. 2000); R. 2:8-2 (providing that an appellate court may, at any time and on its own motion, dismiss an appeal), or, alternatively, affirm the order under appeal, Soc. Hill Condo. Ass'n, Inc. v. Soc. Hill Assoc., 347 N.J. Super. 163, 178 (App. Div. 2002) ("Without the necessary documents . . . we have no alternative but to affirm."), we are confident that we have enough of the record to undertake meaningful appellate review.
We glean the following from the record before us. On June 3, 2011, plaintiff filed a complaint against defendant in the Family Part seeking custody of a child born in January 2010. Plaintiff appears to have proceeded pro se at that time, and the complaint itself failed to assert any facts other than she was the child's biological mother and the child resided with her.
Plaintiff thereafter hired an attorney who filed a motion returnable on September 16, 2011, for an order requiring defendant to pay child support, as well as plaintiff's "au pair" expenses, health insurance for the child, various other expenses, and requiring defendant to "file a complete and accurate Case Information Statement (CIS)[.]" The motion was apparently mailed to defendant at his home in Canada, and we infer he had either not been served with plaintiff's complaint at that point, or had elected to proceed pro se. Defendant subsequently hired counsel.
On September 16, 2011, counsel for both parties appeared before the Family Part. The transcript reveals that on July 18, 2011, another Family Part judge had entered an order awarding custody of the child to plaintiff, and that defendant, through counsel, had filed a cross-motion to set aside the prior order, to require the parties to participate in paternity testing and to compel plaintiff to return defendant's car, and for other relief.1
The submissions of the parties apparently indicated that both parties were physicians, and that defendant had a medical practice in Canada, while plaintiff had worked at a hospital in New Jersey as a staff obstetrician/gynecologist.
After hearing counsel, the judge found that issues of fact warranted a plenary hearing, and she entered an order requiring defendant to pay interim child support of $300 per week and directing the parties to file complete and accurate CIS forms. The order permitted the parties to engage in discovery, required them to participate in paternity testing, and provided that if the testing established defendant was not the father of the child, plaintiff would repay the interim child support payments to defendant. The order set the matter down for a plenary hearing on December 8, 2011.
On that date, the parties appeared before the Family Part judge with counsel. It was clear to all that the matter was not ready for a plenary hearing, and that much discovery remained outstanding. The judge gave the parties an opportunity to resolve the case through a support agreement, but it was soon apparent that the parties would not agree to anything. Defendant's counsel stated that if the paternity test showed defendant to be the father of the child, he would seek custody of the child, prompted by his alleged concern over "serious issues" raised by some ostensibly vituperative emails sent by plaintiff.
Again, if the parties had submitted any documents or certifications to the judge for the hearing on December 8, 2011, these were not provided by either party on this appeal. In any event, a close reading of the transcript reveals the rising tension between the parties. A plenary hearing was scheduled for February 2, 2012.
In February, the parties and counsel again appeared before the Family Part, and various written submissions were given to the judge at that time, including the paternity test report establishing that defendant was, in fact, the father of the child. At the outset, the judge explained that the hearing would address "custody, parenting time, [and] child support," suggesting that defendant had, by this time, filed an amended pleading in which he sought custody of the child and parenting time.
During discussions with counsel on the record, the judge learned that defendant had made only one payment to plaintiff for child support in accordance with the September order. Plaintiff claimed she was unemployed at the time, although her financial disclosures in discovery were less than complete. The judge told counsel she was not accepting plaintiff's claims at face value and would take into consideration the "last income" reported on plaintiff's CIS of $241,588 per year.
Thereafter, plaintiff's counsel called defendant as a witness and extensively examined him about his assets and income. At one point, defendant conceded he had paid only $1,500 in child support following entry of the interim support order in September, and explained he had no "personal cash" available to make all the payments.
Prior to the conclusion of defendant's testimony, the judge paused to allow the parties to discuss a resolution of the support issue. Following the break, when it became clear that the parties were unable to reach an agreement, the following colloquy took place on the record
THE COURT: . . . I also have the issue of child custody that I have to deal with and parenting time. And I thought that when we broke, and I sent counsel out to talk about the child support, I recognized that I was asking [E.C.] to compromise her position with regard to child support in exchange for the certainty of knowing that she had nothing to lose on the custody, okay? . . . . I basically said, take less on the child support, and you are then guaranteed, as part of this global settlement, that you have sole, legal, and residential custody of this child --
THE COURT: -- permanently.
THE COURT: Okay? But that's been rejected, which now means custody is on the table.
. . . .
[E.C.]: -- I don't want him to have parent -- parenting time with my son.
THE COURT: Well, he's going to. That's the law and that's the way it's going to be. Like it or not. So that's something I can't change. I'll tell you that up front.
Prior to the end of the proceeding, the judge suggested to the parties that it would be efficient if defendant were examined on the issue of custody and parenting time at the next hearing date. Plaintiff became agitated after defense counsel suggested that he would also examine her at that time on whether she was taking medication to address a mental health issue. Plaintiff asserted that defendant had "tried to kill" her in the past and was not fit for custody of the child and should not have any parenting time. The judge then explained to plaintiff that, "Ma'am, he wants custody. And right now, as we sit here today, he has a 50/50 shot at getting it," after which, the following exchange took place
THE COURT: Yes, I would like him to start paying $300 a week that I previously ordered. There may be an adjustment, because if I -- if I do the support, I did reserve in the order to go back --
. . . .
THE COURT: -- and recalculate. I also want to put in an order today what his parenting time will be before he goes back. I'm assuming you're -- you're going to be here for a couple days?
MR. ROTHMEL: And he would like parenting time for the next three days while he's here.
THE COURT: Okay.
MR. ROTHMEL: 10:00 to 6:00?
THE COURT: Counsel any problem with that?
. . . .
THE COURT: -- it will only be 10:00 to 6:00.
[E.C.]: I disagree
THE COURT: You can disagree all you like. That's the order of the Court.
THE COURT: 10:00 to 6:00 he'll have the child. We're putting it in an order right now. If he shows up and you don't give him the child, I will immediately transfer custody to him and he can take the child back to Canada.
Subsequently, after the judge explained to plaintiff the consequences of her refusal to make the child available in accordance with the court's order, plaintiff told the judge, "[The child] is not here and I will not be able to bring him tomorrow . . . ." The judge then asked plaintiff several times where the child was and plaintiff refused to disclose the child's location. The judge declared plaintiff to be in contempt of court, after the following exchange
THE COURT: He'll have his parenting time tomorrow, absolutely. I don't know what else to do, Mr. Fabian. What do you want me to do?
MR. FABIAN: I want to be able to meet with her back in my office.
THE COURT: What am I supposed to do then?
MR. FABIAN: Well --
THE COURT: I'm leaving here in five minutes.
MR. FABIAN: -- the visit isn't until tomorrow, and I --
THE COURT: So, then, what do I do?
MR. FABIAN: -- I have -- I have the number of opposing counsel, and I will try to --
. . . .
MR. FABIAN: -- make a good faith effort to work it out.
. . . .
THE COURT: I am going to hold her in contempt. I think the fact that she won't answer the name --
MR. FABIAN: And I
THE COURT: -- she won't tell me the location of the child, she will not tell me the name of the au pair, she will not tell me she will not try to contact the au pair, or give me the phone number of the au pair. She's not going to be incarcerated, Officer. I'm not taking her --
. . . .
THE COURT: She's -- she's found in contempt. There's a sanction on -- levied against her, $5000, counsel fee of $1500 for today. You can give her back her phone. If that child's not here tomorrow morning, Mr. Rothmel, I expect to see --
[E.C.]: He's [the child] not going to be there.
THE COURT: -- an Order to Show Cause.
[E.C.]: He's [the child] not going to be there.
MR. FABIAN: Stop making comments.
. . . .
THE COURT: Okay. But I'm -- I'm hoping that won't be the case, because I don't think that [E.C.] realizes what serious trouble could arise from her non-compliance, and I don't want to see that happen. I don't think she is thinking clearly, which may or may not point then to the issue of the mental illness.
I hope not. I hope it's just her knee-jerk reaction to the fact that now she realizes we're here, and there has to be a sharing of this child, and -- and she's not happy about it, and I understand that.
But I am hoping that her attorney can speak to her and explain things to her more adequately, so that she understands the severity of the violation of the order, okay?
The judge then entered a written order which provided, in pertinent part
Defendant shall have parenting time on Feb. 3 & 4th from 10am-6pm. The parenting time will take place at the home of [a person known to both parties]. [C.W.] may take the child out of the home with the proper car seat.
Pick up & drop off will be @ Cherry Hill Police Dept. If [E.C.] does not bring the child for visits, the local police are authorized to enforce the order.
If [E.C.] does not comply with the parenting order, [C.W.] may bring OTSC [an Order to Show Cause] for immediate temporary custody for court determination.
[C.W.] is to begin paying $300 per week through probation.
What happened next is somewhat unclear from the record. Plaintiff apparently left the State with the child, and failed to present the child for visitation, as the judge had ordered. Defendant then filed an order to show cause, seeking unspecified relief. Again, no party has provided a copy of that pleading. There appears to have been a hearing before the judge on February 3, 2012, although the parties have not provided a transcript of that hearing on appeal. Apparently, defendant and the two attorneys appeared in court, at which time plaintiff's counsel indicated that plaintiff had consented to the entry of an order whereby she would "waive" child support from defendant, and defendant would relinquish his claims to child custody or visitation. We infer it was also represented that plaintiff agreed not to contest the imposition of counsel fees or the judge's contempt citation. The judge then entered the following written order
1. The awarded attorney's fees of $1,500 and the sanction of $5,000 against the Plaintiff, [E.C.], shall be reduced to judgment in favor of the Defendant.
2. The Plaintiff shall have sole legal and residential custody of the parties' minor child, , without prejudice.
3. The child support obligation of the Defendant, [C.W.], is hereby terminated, without prejudice.
4. All child support arrears on the account shall be vacated.
At some point, plaintiff filed a pro se appeal from the consent order, but the appeal was dismissed because plaintiff had not, at that point, moved in the Family Part to vacate the order. Plaintiff thereafter moved to vacate the February order in the Family Part, and on December 14, 2012, the judge denied the motion, finding, in pertinent part
[T]he Consent Order was reached as a result of her strong, emphatic desire to cut off the involvement of [the father] in the raising of their son, and that was paramount to her. She did not want him involved. He lived far away. He had a wife. He had other children. He had lied to her. She felt betrayed and she did not feel comfortable with releasing her son to him, even though it was his son too.
And the ultimate agreement between the parties was not taken lightly by either one of them. But in the end, [E.C.] got what she wanted. She won the prize.
[C.W.] walked away from his son.
He said, I will agree, although very reluctantly, to give up any contact with the boy. The child is in her care and custody. The the quid pro quo for that was that he wasn't going to be responsible to pay any support. He was willing to pay support. He fought for his son, and ultimately in the end, the agreement was on her part, I want you to give up the boy, and I will walk away. So she won the prize. She got it. She got what she wanted.
In finding that plaintiff in fact agreed to the consent order, the judge relied on her own recollection of the negotiations and an email exchange between plaintiff and her attorney. The judge stated,
I am confident that the Consent Order was entered into by her knowingly and voluntarily, and that she was involved in the negotiation of that agreement. And that is further evidenced by [the email from plaintiff's then counsel to plaintiff] . . . . [T]hat would have been a perfect opportunity to say to him, What are you talking about? What do you mean, we have this Consent Order?
This appeal followed.
Defendant raises the following arguments on appeal
POINT I: THE LACK OF ADEQUATE FINDINGS OF FACTS (R. 1:7-4) AND APPLICATION OF LAW NECESSITATE A REMANDING OF THE MATTER TO THE COURT BELOW WITH A DIFFERENT NON-PREJUDICIAL, [IM]PARTIAL JUDGE.
POINT II: THE ALLEGED WAIVER OF CHILD SUPPORT WAS ILLEGAL BECAUSE CHILD SUPPORT IS A LEGAL RIGHT THAT BELONGS TO THE CHILD.
POINT III: THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY HOLDING THE APPELLANT IN CONTEMPT OF COURT.
POINT IV: THE DEFENDANT NEVER HAD ANY INTEREST IN THE WELFARE OF MY CHILD.
POINT V: THE AGREEMENT VIOLATES PUBLIC POLICY AND WAIVES RIGHTS OF MY SON.
We have considered these arguments in light of the record and applicable law, and we agree that the consent order should have been vacated because it violates established public policy in this State. Further, for reasons we express hereinafter, we vacate the contempt order and the imposition of counsel fees against plaintiff. We remand this matter to the Family Part for further proceedings in accordance with this opinion.
Ordinarily, we defer to the Family Part's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). We likewise defer to the Family Court's decisions that are committed to the court's exercise of discretion. Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).
However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). Also, if the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). We may also exercise more extensive review of trial court findings that do not involve a testimonial hearing or the opportunity to assess witness credibility. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Part conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made").
In our view, the question presented by this appeal is not whether defendant knowingly approved the consent order, but rather whether the consent order itself is flawed as a matter of law. We hold that the order is flawed as a matter of law because it violates well-established public policies in this State, to wit: the court may not participate in and approve the waiver of the right to child support by a custodial parent, absent a "best interests" determination by the court; and, further, a parent's right to visitation and a parent's duty to support a child are not dependent and cannot be traded off in a consent order.
The child's best interest is the "'greatest and overriding consideration'" in a family court matter. Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Monmouth Cnty. Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super. 83, 88 (Ch. Div. 1997)). "[T]he right to receive support belongs to the children, not the custodial parent." Ibid.; see also L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002). Consistent with this principle, the court may not sanction a parent's waiving or bargaining away a child's right to support. See Gotlib, supra, 399 N.J. Super. at 305; see also Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).
Moreover, parents are presumptively required to provide for the financial support of their unemancipated children. See N.J.S.A. 2A:34-23. Child support is necessary to ensure that parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). As we noted earlier, the right to child support "belongs to the child" and, therefore, cannot be waived by the custodial parent. Id. at 591. An order regarding child support "must be based on an evaluation of the child's needs and interests and not on the conduct of the parents." Ibid.
While we recognize that parties are permitted to fashion an agreement respecting child support, they may not simply bargain it away and ask the court to approve their bargain. In Monmouth Cnty. Div. of Soc. Servs. for D.M., supra, 308 N.J. Super. at 95, the parties entered into a consent order relieving a father of child support in exchange for termination of his parental rights. The Family Part judge vacated the order and said
It is a fundamental principal [sic] of the Family Division that the right to child support belongs to the child or children, not to the custodial parent. Kopak[v. Polzer],  5 N.J. Super. , 117 [(1949)], aff'd, 4 N.J. 327  (1950); Martinetti[v. Hickman],  261 N.J. Super. , 512 [(App. Div. 1993)]. Therefore, the actions and circumstances of the child, and not those of the parent, are to be evaluated in determining support obligations. Ibid.
. . . .
[I]t is clear that regardless of the unenforceable termination of the defendant's rights in this case, plaintiff, as custodial parent, lacked standing to effectively waive her right to child support, as that support right belongs to the child, and not to that parent.
[Id. at 95-96.]
See Ordukaya v. Brown, 357 N.J. Super. 231, 239-41 (App. Div. 2003) (parties may agree to deviate below the standards for child support in the guidelines, but not if the child will be prejudiced thereby).
In Ordukaya, we reversed an order of the Family Part denying plaintiff's motion to modify a child support award arising from a negotiated property settlement agreement entered into by the parties. 357 N.J. Super. at 232. The Family Part had determined that plaintiff knowingly and voluntarily entered into the agreement, and that although the amount of child support was below the guideline standard, plaintiff failed to demonstrate any material change in circumstances. Id. at 239. We reversed, and explained, in part
[T]he parties failed to comply with [Rule 5:6A], and the judge did not consider the guidelines nor whether the best interests of the children were served by deviating from the guidelines. The judge observed that "people have the right to make bad deals," but "bad deals" do not extend to child support. The "deal" was not simply an agreement affecting two independent parties. The most critical issue is the children's interests. Where such interests are compromised, courts must insure that they are protected. Cf. Bengis v. Bengis, 227 N.J. Super. 351 (App. Div. 1987) (permitting waiver of child support by a natural parent where the obligation may be imposed on a responsible third-party). No such inquiry was made here and a remand is mandated.
[Id. at 241.]
In the present case, not only did the judge fail to make a best interest determination or consider the requirements of court rule, but also approved a consent order that waived completely the child's right to support from defendant. The consent order, therefore, must be reversed and the matter remanded to the Family Part for further proceedings.
Moreover, we are constrained to observe that the consent order also violates another well-established policy in this State: i.e., the obligation of a parent to provide support is independent of the parent's right to parenting time. See Wagner v. Wagner, 165 N.J. Super. 553, 556 (App. Div. 1979) ("since visitation is primarily for the benefit of the children of a marriage, defendant's obligation to support the children is independent of his visitation rights"), certif. denied, 85 N.J. 93 (1980); see also Fiore v. Fiore, 49 N.J. Super. 219, 225-27 (App. Div. 1958) (overturning order that abated child support payments if the mother or her family interfered with the father's visitation rights and stating that the "duty of a father to support his children and the right of a father to visitation and overnight custody are not dependent upon or connected with each other"), certif. denied, 28 N.J. 59 (1958); Ryan v. Ryan, 246 N.J. Super. 376, 383-84 (Ch. Div. 1990) (concluding that the court was not bound by an agreement whereby the father gave up his visitation rights in exchange for being relieved of his support obligations and stating that "[i]n the best interests of the child, support and the right of visitation cannot be dependent upon or connected with each other").
Here, the Family Part "consent order" not only contained an explicit waiver of the child's right to defendant's support,2 but also provided that in return for being free of that obligation, defendant agreed to waive his right to custody and visitation. Such an agreement violates public policy if sanctioned by the court. See Kopak, supra, 4 N.J. at 333 (a "child cannot be prejudiced by an agreement between parents."); see also Gotlib, supra, 399 N.J. Super. at 305 ("Even an explicit waiver agreement cannot vitiate a child's right to support."); Ordukaya, supra, 357 N.J. Super. at 241; Gulick v. Gulick, 113 N.J. Super. 366, 371 (Ch. Div. 1971) ("[T]he conscience of equity will not permit present needs of children to be limited by the agreement of the [parties]."). The order before us violates both public policies which have long been a part of our jurisprudence.
Defendant argues, among other things, that the public policy issue we have addressed above had not been presented to the Family Part judge. This is an argument without merit, given the facts of this case. The Family Part had an obligation to the child here beyond determining whether plaintiff had knowingly agreed to waive child support; indeed, even when the parties agree to provide child support, the court must nonetheless ensure that the child's best interests are protected. See Ordukaya, supra, 357 N.J. Super. at 239-41; see also R. 5:6A (requiring an explanation where child support guidelines apply and an agreement provides for child support in a different amount); Caplan v. Caplan, 182 N.J. 250, 272 (2005) (discussing determination of appropriate child support in cases where parental income exceeds the amount covered by the child support guidelines); Isaacson v. Isaacson, 348 N.J. Super. 560, 579-85 (App. Div. 2002).
Further, we recognize that the settlement of litigation, including divorce litigation, ranks high in our public policy, Dolce, supra, 383 N.J. Super. at 20, and courts will ordinarily enforce matrimonial settlement agreements, absent a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 148-49, (1980).3 In fairness to the motion judge, we also acknowledge that plaintiff's apparently unexplained refusal to participate in good faith negotiations on child support, as well as her wide-ranging, relentless and unsupported assault on defendant's character, may have obscured these issues. However, we also bear in mind that parental settlements are always subject to a principled consideration of the child's best interests.
Finally, we would be remiss if we did not observe that the record before us raises concern about the child's welfare in this case. Not only has plaintiff refused to produce the child, but also plaintiff's conduct and statements reflected in the record suggest that she may be struggling with issues that would impact upon her ability to care for the child. The motion judge recognized these issues as well, but then, without explanation, disregarded those concerns when she executed the consent order, and, later, denied the motion to vacate the order.4
We have repeatedly emphasized that the Family Part must always be guided by a consideration of the best interests of any child subject to its jurisdiction. This duty imposes upon the Family Part a parens patriae obligation "to intervene where it is necessary to prevent harm to a child." Segal v. Lynch, 413 N.J. Super. 171, 181 (App.Div.) (citing Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)), certif. denied, 203 N.J. 96 (2010). The parens patriae doctrine authorizes the Family Part to modify even freely negotiated agreements concerning child custody and parenting time, and requires vigilant judicial oversight to prevent any adverse impact or harm to the child arising from such agreements. Fawzy, supra, 199 N.J. at 477-78.
Here, the Family Part, recognizing the existence of potential issues that would affect the best interests of a child subject to its jurisdiction, executed the proffered consent order without exploring those issues more thoroughly. It was error to do so, and on remand, we direct that the child be produced before the Family Part and that the court shall make an appropriate inquiry into the welfare and best interests of the child before entering an order pertaining to custody and parenting time. See Rules 5:8-1 to -6. In conducting such an inquiry, the Family Part may also consider appointing a guardian ad litem for the child, if appropriate. See Rule 5:8A.
Because we are reversing the consent order which incorporates the imposition of counsel fees, and the assessment of a contempt penalty reduced to a judgment in favor of defendant, we shall address that aspect of the order here.
"Relief under Rule 1:10-3, whether it be the imposition of incarceration or a sanction, is not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of the court order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997). "[A] monetary sanction imposed pursuant to [Rule] 1:10-3 is a proper tool to compel compliance with a court order." Ibid. Monetary sanctions under Rule 1:10-3 must be "related to the litigant's damages" and not punitive. D'Atria v. D'Atria, 242 N.J. Super. 392, 408 (Ch. Div. 1990). "The sanction, while 'in an amount sufficient to sting and force compliance . . . must not be so excessive as to constitute ruinous punishment.'" Franklin Twp. Bd. of Educ. v. Quakertown Educ. Ass'n, 274 N.J. Super. 47, 56 (App. Div. 1997) (quoting E. Brunswick Bd. of Educ. v. E. Brunswick Educ. Ass'n., 235 N.J. Super. 417, 422 (App. Div. 1989)). Before imposing a sanction, the court "must consider the offending party's ability to pay and the sanction's impact on that party in light of its income, status and objectives, as well as the sanction's impact on innocent third parties." E. Brunswick Bd. of Educ., supra, 235 N.J. Super. at 422-23.
Here, plaintiff's persistent refusal to provide the child for visitation in accordance with the court's order may have deserved a sanction for contempt. Nonetheless, the trial judge made no findings with respect to plaintiff's ability to pay or the impact that the sanction would have upon her. Finally, there is no citation to any authority permitting the judge to convert the contempt sanction into an award to defendant.
Likewise, the record before us discloses no basis for the amount of the counsel fee assessed. An award of counsel fees in Family Part actions is permitted by N.J.S.A. 2A:34-23, Rule 4:42-9(a)(1), and Rule 5:3-5(c). See Mani v. Mani, 183 N.J. 70, 93-94 (2005); Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). N.J.S.A. 2A:34-23 instructs that courts, "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." Here, there is nothing in the record to show that the judge considered any factors other than plaintiff's conduct in awarding counsel fees to defendant. Hence, this part of the order must be reversed as well.
Further, we reject plaintiff's argument that the motion judge was biased or lacked impartiality in any manner in her dealings with plaintiff. The record fully supports the conclusion that the motion judge was patient and polite throughout the proceedings, notwithstanding plaintiff's provocative conduct, and acted with complete impartiality. Our opinion should not be construed as implying any criticism of the judge's conduct in considering the difficult issues raised in this case.
The order denying plaintiff's motion to vacate the order of February 3, 2012, is reversed and the matter is remanded to the Family Part for further proceedings in accordance with this opinion. We do not retain jurisdiction.
1 Neither party has provided us with the earlier custody order, defendant's cross-motion, or with any certifications or exhibits submitted in support of these motions.
2 We are guided by our long standing view that "[t]he obligation to provide child support 'is engrained into our common law, statutory, and rule-based jurisprudence,'" Colca, supra, 413 N.J. Super. at 414 (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)), and "[t]he right to [receive] child support belongs to the child." J.B. v. W.B., 215 N.J. 305, 329 (2013) (quoting Pascale, supra, 140 N.J. at 591); Martinetti, supra, 261 N.J. Super. at 512; see also, J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006) ("The purpose of child support is to benefit children, not to protect or support either parent."), certif. denied, 192 N.J. 295 (2007). "Child support is the right of the child and the responsibility of both parents, not a chip won or lost by the custodial parent from the non-custodial parent[.]" Pascale, supra, 140 N.J. at 593. For this reason, "enforcing the parental duty to support children is 'an inherent part of the 'best interests of the child' rubric which underlies our family courts.'" Colca, supra, 413 N.J. Super. at 414 (quoting Monmouth Cnty. Div. of Soc. Servs. for D.M., supra, 308 N.J. Super. at 88 (citing Wilke v. Culp, 196 N.J. Super. 487, 489 (App. Div. 1984)).
3 As we have noted above, however, the consent order at issue here violates important public policies and thus is not enforceable. Moreover, the trial judge did not have the full financial picture of the parties before her. In Zazzo v. Zazzo, 245 N.J. Super. 124, 129 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991), we held that the "complete financial information of both parents [is] necessary for any order of child support." We have further explained that "[t]his mandate is not just window dressing;" rather, it provides the motion judge with "the full financial picture of the parties[.]" Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991). In this case, defendant was relieved of the obligation to support the child by virtue of the consent order. The judge was required to provide the guidelines worksheet and a statement of the reason for entering an order that deviated from the guidelines amount. R. 5:6A; see Ordukaya, supra, 387 N.J. Super. at 231.
4 We have not burdened the record with every instance of conduct that caused the motion judge to express concern about the possibility that plaintiff may struggle with issues that could adversely affect the child. Moreover, we do not suggest that such issues exist and, if so, that the child is in any jeopardy. However, as we explain herein, having recognized that the record raises these concerns, the motion judge was required to explore the facts more thoroughly before executing the consent order proffered by the parties.