S.B.P. v. D.J.P.
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0343-16T4
S.B.P.,
Plaintiff-Respondent,
v.
D.J.P.,
Defendant-Appellant.
__________________________
Submitted March 7, 2018 – Decided April 12, 2018
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-2023-12.
Santo J. Bonanno, attorney for appellant.
Philip C. Puglisi, attorney for respondent.
PER CURIAM
Defendant D.J.P. appeals from an August 22, 2016 order
awarding counsel fees to plaintiff S.B.P., now known as S.B.S. We
affirm.
The parties were married on October 21, 2007, and divorced
on February 12, 2013. The final judgment of divorce incorporated
the terms of the Matrimonial Settlement Agreement (MSA) entered
into by the parties.
Two children were born of the marriage: a daughter, born in
2010, and a son, born in 2012. The MSA provides for joint legal
custody of the children, with plaintiff designated as parent of
primary residence and defendant designated as parent of
alternative residence. The MSA further provides that after their
son reached the age of one, defendant would have supervised
parenting with the children on alternate Saturdays, with the
supervision being provided by defendant's mother. The MSA also
required defendant to undergo substance abuse and psychological
evaluations and to follow any treatment recommendations.
Defendant was also required to complete the Alternatives to
Domestic Violence Counseling Program and thereafter continue with
individual counseling. The MSA further provides each party would
be responsible for their own counsel fees and costs.
Frequent motion practice has led to the entry of numerous
post-judgment orders. A February 18, 2014 order denied parenting
time for defendant's mother, denied defendant's application for
unsupervised parenting time, and determined defendant's mother was
no longer permitted to supervise defendant's parenting time. The
order also denied the application to compel defendant to continue
unification therapy. A June 15, 2015 order denied defendant's
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emergent application for unsupervised parenting time on Father's
day. A June 26, 2015 order established an interim parenting time
schedule for two days. A subsequent order awarded defendant
gradually increasing parenting time. A September 8, 2015 order
denied defendant's motion for reconsideration of the June 26, 2015
order, denied plaintiff's cross-motion, and denied both parties'
applications for counsel fees and costs. A February 4, 2016 order
appointed a parenting coordinator "to assist the parties to resolve
conflicts related to parenting schedule and to address the
resumption of parenting time" by defendant. The order further
provided that if "either party has been recalcitrant and/or non-
cooperative and thereby has interfered with the parenting
coordinating process," the affected party "may then petition the
court for appropriate relief, including, but not limited to[,]
[s]anctions, counsel fees, and the remedies set forth in Rule 5:3-
7."
On June 3, 2016, defendant applied for an order to show cause
to: (1) increase his parenting time on their daughter's upcoming
birthday; (2) allow pick-up and drop-off in Emerson because
plaintiff was moving to Morris Plains, making it more difficult
for defendant to exercise his parenting time; (3) allowing his
mother to be present during his parenting for more than two hours
per month; and (4) increasing his parenting time due to plaintiff's
3 A-0343-16T4
12.5-hour work shifts. The application was converted to a motion
returnable on a date after their daughter's birthday due to
scheduling issues. Plaintiff filed opposition and a cross-motion
seeking to restrain defendant from filing meritless applications
and for an award of counsel fees and costs. On July 21, 2016,
defendant filed another application for an order to show cause
regarding his parenting time schedule and pick-up and drop-off
location.
On August 5, 2016, the motion judge heard oral argument on
the pending applications and issued an oral decision: (1)
determining defendant's request for additional parenting on their
daughter's birthday to be moot; (2) denying defendant's request
to pick up and drop off the children in Emerson; (3) denying
defendant's request for specific parenting time on July 23 and
July 24, 2016; (4) denying plaintiff's request to restrain
defendant from filing frivolous, meritless applications; and (5)
granting plaintiff's application to compel defendant to cooperate
with the court-appointed parenting coordinator.
With regard to cooperation with the parenting coordinator,
the judge noted: "The parties were supposed to work out parenting
issues with their parenting coordinator." The judge explained the
order appointing the parenting coordinator "requires both parties
to act with good faith and fair dealings." The judge was not
4 A-0343-16T4
convinced defendant "has made a good-faith effort to try to
negotiate the issues." He then stated:
Now dad, you can roll your eyes. You can
shake your head. You can hit your table,
whatever you want, but as far as I'm
concerned, based on what I've seen here, dad,
you are not acting in good faith and fair
dealings.
As to the award of counsel fees to plaintiff, the judge
stated:
The court does not believe that all of
[defendant's] requests are frivolous. At
least some of [defendant's] request, including
the order to show cause that was filed while
the motion was pending, was not consistent
with the premise of good faith and fair
dealings. [Defendant] has been running up .
. . unnecessary counsel fees instead of trying
to work out issues with [plaintiff] through
the parenting coordinator. I don't deem it
appropriate to go back and award counsel fees
for prior motions as [plaintiff] requested.
The judge directed plaintiff's counsel to submit a certification
of services for the period between June 6 and August 5, 2016,
afforded defendant an opportunity to object, and, at defendant's
request, directed both parties to submit Case Information
Statements (CIS) and their 2015 income tax returns. The parties
filed CIS's.
Plaintiff's counsel timely submitted an affidavit of
services. The affidavit disclosed counsel has been a member of
the bar since 1982 and his practice is primarily devoted to
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matrimonial law. He has served as a Matrimonial Early Settlement
Panel panelist for over twelve years and is a certified family law
mediator. Counsel billed plaintiff at the rate of $400 per hour.
The affidavit addressed each of the factors set forth in RPC
1.5(a). The attached billing records disclose counsel expended
approximately eighteen hours on behalf of plaintiff from June 7,
2016, to August 5, 2016, for services totaling $7309.36. In
addition, counsel incurred a $50 filing fee on behalf of plaintiff.
Accordingly, plaintiff sought an award of $7359.36.
Although given the opportunity to do so, defendant did not
submit any objection to counsel's fee certification. Indeed, in
his reply brief, defendant's counsel states: "The amount of counsel
fees that were being requested and the certification of services
were not being contested regarding accuracy." Thus, defendant
does not contest the hourly rate or billable hours charged by
plaintiff's counsel. Instead, defendant contends the trial court
overstated his ability to pay plaintiff's counsel fees by failing
to consider the $1060 per month he pays for child support and his
having to borrow money from third parties in order to meet his
expenses and pay his child support. He further contends that when
the child support plaintiff receives is added to her net income,
her budget does not exceed her available funds. He also contends
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the trial court failed to allocate any part of plaintiff's fixed
shelter expenses to her fiancé who resided with her.
On August 22, 2016, the judge awarded plaintiff $7359.36 in
counsel fees and costs to be paid by defendant within thirty days.
Defendant requested the trial court provide its basis for the
ruling. On September 16, 2016, the judge issued a written
statement of reasons. The judge stated, in part:
Thereafter, on July 21st [defendant]
filed an Order to Show Cause requesting
emergent relief to permit him to pick up and
drop off the minor children in Emerson and to
permit him to have visitation with the
children on two days in late July. That very
issue was raised by the parties with their
parent coordinator, Cynthia Johnson, on June
14, 2016 and defendant "absolutely refused"
to address the issue with Ms. Johnson.
. . . .
Since this request did not involve a
situation demanding immediate action due to a
situation involving "immediate and
irreparable harm," the application for
immediate relief sought in the Order to Show
Cause was denied[] and converted into a
Motion.
On June 26, 2015[,] Judge Sattely had
previously ruled that defendant "shall pick-
up and drop-off the minor children for his
parenting time at [his mother's] residence."
In 2016[,] defendant filed Motions with regard
to that Order which resulted in further Orders
of January 22nd, February 4th and May 27th[,]
all of which refused to lift the restriction
that Judge Sattely ordered. There was no
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change in circumstances warranting a re-visit
of the issue.
The attempt to obtain emergent relief
bordered on frivolous.
On the cross-motion, the plaintiff
pointed out that she had incurred thousands
of dollars in counsel fees due to the
defendant's excessive motion filings. It was
pointed out that the defendant had several
multi-week and multi[-]month absences and it
was pointed out that the defendant had stopped
seeing the children and did not call his
daughter on her birthday, June 26th.
As part of the cross-motion the plaintiff
requested an award of counsel fees. . . . The
[c]ourt was satisfied that at least some of
the defendant's request, including the Order
to Show Cause that was filed while the motion
was pending was done in bad faith and was
frivolous. The defendant had caused plaintiff
to incur unnecessary counsel fees instead of
trying to work out the issues with the
plaintiff and the parent coordinator. The
request for award of counsel fees covered the
day the defendant filed his initial motion up
to and including the return date of the
hearing.
With regard to the financial circumstances of the parties,
the judge stated:
Although plaintiff is employed as a Nurse
in New York[,] [s]he has covered the vast
majority of the costs of raising the family
and had to withdraw from her retirement [plan]
just to pay bills and been forced to defend
and file motions mostly due to defendant's
unreasonable demands. It was asserted that
plaintiff has had to borrow money to pay
attorney's fees on several occasions.
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Defendant earned in excess of $61,000 in
2015 and netted in excess of $45,000. His
Case Information Statement lists his Schedule
A, B and C expenses of approximately $41,700.
With regard to the ability of the parties to pay their own
fees and pay the fees of the other party, the judge stated: "A
review of the plaintiff's CIS shows that her monthly expenses
exceed her monthly income by thousands of dollars. She has had
to take more than $16,000 from her retirement account and, even
with that withdrawal, is left with a shortfall of more than $5,000
annually."
As to the past history of dealings between the parties, the
judge stated:
There has been a history of court events
between these parties including [m]otions for
[r]econsideration, many times by the
defendant, all of which caused plaintiff to
file responses or to bring affirmative claims
to protect her or the children's rights. Even
though they have been [o]rdered to address
parenting issues with the coordinator,
defendant declined and, if dissatisfied with
the Coordinator's decisions, he files
[m]otions. It must be noted that the filings
by the defendant have been so numerous that
plaintiff sought an Order precluding defendant
from filing motions. That request was denied.
The judge further noted defendant was previously ordered to
pay counsel fees and costs of $3500 to plaintiff. The judge
further stated:
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The award of counsel fees should also serve
as notice to the defendant that the practice
of filing motions, not based on good faith and
fair dealings, are not an appropriate manner
to resolve issues. These parties have the
benefit of the experienced parent coordinator
to address issues of parenting time.
This appeal followed. On appeal, defendant argues the trial
court erred in refusing to address visitation and awarding counsel
fees to plaintiff equivalent to fifteen percent of his annual
income despite her alleged ability to pay for her own fees. He
also asserts his parenting time applications were not made in bad
faith.
We first note defendant's notice of appeal identifies only
the August 22, 2016 order as the order being appealed. It is
well-settled that we review "only the judgment or orders designated
in the notice of appeal." 1266 Apartment Corp. v. New Horizon
Deli, Inc.,
368 N.J. Super. 456, 459 (App. Div. 2004) (citing
Sikes v. Twp. of Rockaway,
269 N.J. Super. 463, 465-66 (App. Div.
1994)); see also R. 2:5-1(f)(3)(A). In addition, we conclude
defendant abandoned any argument relating to the trial court's
decision regarding parenting time by failing to brief that issue.
See Zavodnick v. Leven,
340 N.J. Super. 94, 103 (App. Div. 2001)
(indicating the failure to present an argument relating to an
appeal renders that appeal "abandoned"). Accordingly, defendant's
appeal shall be limited to review of the August 22, 2016 order
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awarding plaintiff counsel fees. We decline to review any prior
visitation rulings.
Defendant challenges the award of $7359.36 in counsel fees
and costs to plaintiff. Defendant argues the trial court
improperly analyzed the requisite factors of Rule 5:3-5(c).
Specifically, defendant asserts the trial court overstated his
ability to pay counsel fees and failed to take into consideration
plaintiff's higher income and the child support payments she
received in assessing the parties' ability to pay. Defendant
further asserts the trial court failed to allocate any part of the
food and fixed shelter expenses to the fiancé with whom plaintiff
was residing.
Fee allowances may be made in family actions pursuant to Rule
5:3-5(c). R. 4:42-9(a)(1). The trial court must consider nine
factors in making an award of counsel fees:
(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.
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[R. 5:3-5(c).]
The Supreme Court distilled these factors to their essence
by explaining:
[I]n awarding counsel fees, the court must
consider whether the party requesting the fees
is in financial need; whether the party
against whom the fees are sought has the
ability to pay; the good or bad faith of either
party in pursuing or defending the action; the
nature and extent of the services rendered;
and the reasonableness of the fees.
[Mani v. Mani,
183 N.J. 70, 94-95 (2005)
(citing Williams v. Williams,
59 N.J. 229, 233
(1971); Mayer v. Mayer,
180 N.J. Super. 164,
169-70 (App. Div. 1981)).]
The decision to award counsel fees in a matrimonial action
lies within the sound discretion of the Family Part judge. See
Williams v. Williams,
59 N.J. 229, 233 (1971); Addesa v. Addesa,
392 N.J. Super. 58, 78 (App. Div. 2007); R. 5:3-5(c). "Appellate
courts accord particular deference" to the Family Part's findings
"because of its 'special jurisdiction and expertise' in family
matters." Harte v. Hand,
433 N.J. Super. 457, 461 (App. Div.
2013) (quoting Cesare v. Cesare,
154 N.J. 394, 412 (1998)). "We
will disturb a trial court's determination on counsel fees only
on the 'rarest occasion[s],' and then only because of [a] 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)).
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Notably, defendant has not included the CIS's or income tax
returns upon which his argument is based in his appendix, and they
are not part of the appellate record. A party on appeal is obliged
to provide the court with "such other parts of the record . . .
as are essential to the proper consideration of the issues." R.
2:6-1(a)(1). The CIS's and income tax returns are essential to
any meaningful analysis of the parties' respective income and
budgets. Defendant's failure to supply this critical financial
information substantially impedes our ability to effectively
review the trial court's findings and conclusions.1 Based on the
truncated record before us, defendant has not demonstrated the
trial court overstated his income or failed to adequately consider
plaintiff's income level, other available funds, and budget.
Defendant also contends his applications were not made in bad
faith. "Fees in family actions are normally awarded to permit
parties with unequal positions to litigate (in good faith) on an
1
The failure to provide the CIS's and income tax returns is
compounded by the woefully deficient statement of facts section
of defendant's brief, which fails to set forth "a narrative
chronological summary incorporating all pertinent evidence" that
is "supported by references to the appendix and transcript." R.
2:6-2(a)(5); see also Walters v. YMCA,
437 N.J. Super. 111, 120-
22 (App. Div. 2014) (discussing impact of the failure "to clearly
and accurately narrate the salient facts of a case, followed by a
precise citation to the page number in the appendix or
transcript"). Defendant's statement of facts, which is only one
sentence long, does not set forth any of the pertinent underlying
facts and contains only a single citation to the record.
13 A-0343-16T4
equal footing." J.E.V. v. K.V.,
426 N.J. Super. 475, 493 (App.
Div. 2012) (quoting Kelly v. Kelly,
262 N.J. Super. 303, 307 (Ch.
Div. 1992)). However, "where one party acts in bad faith, the
relative economic position of the parties has little relevance."
Kelly,
262 N.J. Super. at 307. Stated another way, "[t]he argument
between the parties over their 'real' income, net worth and monthly
needs would not be as significant if defendant were truly the
person in bad faith." Yueh v. Yueh,
329 N.J. Super. 447, 461
(App. Div. 2000). Thus, while a financial disparity between the
parties affecting their respective ability to pay might otherwise
militate against an award of counsel fees, one who acts in bad
faith can be compelled to pay counsel fees "to protect the innocent
party from unnecessary costs and to punish the guilty party."
Welch v. Welch,
401 N.J. Super. 438, 448 (Ch. Div. 2008) (citing
Yueh,
329 N.J. Super. at 461).
The motion judge found the filing of the order to show cause
application "bordered on frivolous" and "was not consistent with
the premise of good faith and fair dealings." He concluded
defendant caused plaintiff to incur unnecessary counsel fees by
filing inappropriate motions and orders to show cause rather than
utilizing the court-ordered parenting coordinator. The motion
judge further found at least some of defendant's application "was
14 A-0343-16T4
done in bad faith and was frivolous." Each of these findings is
amply supported by the record.
We find no basis to disturb the counsel fee award. The trial
court addressed each of the factors in Rule 5:3-5(c), making
specific findings as to the applicable factors and finding other
factors inapplicable. The trial court's findings and conclusions
are supported by the record before us. The court also properly
took into account defendant's conduct, including his bad faith,
lack of fair dealings, and failure to try to resolve parenting
time issues through the parenting coordinator, which caused
plaintiff to unnecessarily incur considerable legal expenses.
Accordingly, we discern no abuse of discretion by the trial court.
Affirmed.
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