GINA CAITANO v. KENNETH CAITANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GINA CAITANO,

Plaintiff-Respondent,

v.

KENNETH CAITANO,

Defendant-Appellant.

______________________________

June 11, 2015

Submitted May 12, 2015 Decided

Before Judges Yannotti and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1617-09.

Kenneth Caitano, appellant pro se.

Law Offices of Ira M. Senoff, L.L.C., attorney for respondent (Alfred M. Caso, of counsel and on the brief).

PER CURIAM

Defendant appeals from a post-judgment order entered by the Family Part on January 31, 2014. We affirm.

We discern the following facts from the record. The parties were married in 1993 and divorced in 2010 when a final judgment of divorce incorporating a marital settlement agreement (the "Agreement") was entered. After the divorce, the parties continued to file motions to address on-going financial and parenting issues. After mediation on March 6, 2013, the parties entered into a consent order concerning unresolved issues of parenting, alimony, child support, and life insurance. Defendant filed an emergent application in August 2013 requesting a change in custody because he thought his son was being left unattended by plaintiff for long periods of time and was concerned for his well-being. The application was denied and defendant was directed to alert the Division of Child Protection and Permanency if he had concerns for his son's safety.

On January 1, 2014, defendant filed a motion seeking a transfer of custody and best interests hearing regarding the children, a court interview of the children, and enforcement of the parenting schedule and transportation plans outlined in the Agreement, as well as reconsideration of other issues regarding parenting and support of the children previously addressed in the consent order. Defendant also requested sanctions against plaintiff and that she be held in violation of litigant's rights for interfering with defendant's telephone communication with the children by taking away their cell phones and blocking defendant's number.

Plaintiff filed a cross-motion seeking sanctions against defendant for failing to maintain life insurance as required under the consent order and for various other relief. On January 31, 2014, the court entered an order addressing each of defendant's twenty-three prayers for relief and plaintiff's nine prayers for relief.

On appeal, defendant argues that the court improperly awarded counsel fees to plaintiff on her cross-motion and erred when it denied defendant counsel fees, reimbursement for monthly costs and insurance for his son's cell phone, and the replacement cost of the phone.

Our scope of review is limited in assessing the factual findings of the Family Part. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Findings are binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, Family Part judges have "special expertise" in these matters. Id. at 412.

We first address defendant's argument that the court erred in denying reimbursement from plaintiff for their son's cell phone service and replacement costs. Defendant asserted in his certification that he had purchased his son a cell phone and that in August 2013, his son told him it had disappeared at plaintiff's house. He told his son that the phone was insured and that he would replace it. In September 2013, defendant's son told him that plaintiff had purchased a phone for him on her cellular plan and that she had blocked defendant's phone numbers to prevent him from texting or calling his son for five months.

Defendant asked the motion judge to require plaintiff to reimburse him $225 for monthly costs and insurance from September to November 2013, as well as $305.87 representing the cost of a phone. The request was denied because defendant had not provided a factual or legal basis for an order compelling plaintiff to pay for the phone expenses. We agree.

Defendant knew in August 2013 that the phone was missing, and while he suggests that plaintiff had taken the phone to obstruct communication with their son, he has provided no evidence to support that theory. We note that the court partially granted defendant's application finding plaintiff in violation of litigant's rights for interfering with defendant's telephone communications, and stated that

[t]o the extent that [p]laintiff has blocked defendant's phone numbers from the children['s] cellphones, she shall remove any such restrictions immediately. It is [ordered] that [p]laintiff shall [e]nsure the home phone is charged at all times so that [d]efendant may access the children on the landline in [p]laintiff's home and [p]laintiff is not permitted to take the children's cellphones away. It is noted that normally the court does not enter [o]rders that could interfere with methods of discipline exercised by parents. However, in this case, [p]laintiff does not deny that she blocked numbers from [her son's] phone, nor does she assert that she has taken the children's phones away as a form of discipline, and thus the court finds it appropriate to prohibit [p]laintiff from engaging in behaviors that inhibit defendant's phone contact with the children, including taking away the children's phones as a form of discipline.

This finding does not establish that plaintiff took the missing phone or is responsible to reimburse defendant for the monthly carrying charge or replacement cost. Accordingly, we discern no error in the court's determination.

We next address the issue of the denial of counsel fees to defendant and the award of fees to plaintiff. The award of counsel fees in a matrimonial case rests in the sound discretion of the trial judge. R.4:42-9; see alsoR.5:3-5; Mani v. Mani, 183 N.J.70, 93-94 (2005) (quoting R.5:3-5). However, that discretion is not unfettered, and a judge deciding such an application must address the relevant standards such as the reasonableness of fees. See, e.g., Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div. 2013) (citations and internal quotation marks omitted) (noting that a key factor in determining the reasonableness of a fee award is whether the party seeking the award prevailed in the litigation).

In determining the fee award applications, the judge appropriately considered the standards set forth in N.J.S.A.2A:34-23 and Rule5:3-5(c) and the reasonableness of defendant's motion in the context of prior proceedings. The court found defendant responsible for plaintiff's counsel fees because defendant's application for change of custody was largely without merit and appeared to be a motion for reconsideration of issues previously addressed by the parties in their consent order. While plaintiff was granted only partial relief and did not prevail on every issue, it is not determinative that a party prevail in order to be entitled to an award of fees. SeeKingsdorf v. Kingsdorf, 351 N.J. Super.144, 158 (App. Div. 2002).

In addition, defendant was in a better position financially to pay for plaintiff's fees incurred in defending against defendant's motion as demonstrated by the submission of the child support worksheet submitted with his motion. Moreover, after reviewing counsel's certification, the court reduced counsel's hourly rate so that it was commensurate with that of lawyers with similar levels of experience in Monmouth County. We discern no abuse of discretion in the court's award.

Affirmed.