September 19, 2007
SUSAN CHAN, PLAINTIFF-APPELLANT,
GORDON HUIE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2364-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2007
Before Judges Payne and Messano.
Plaintiff Susan Chan and defendant Gordon Huie were married in 1990 and are the parents of two daughters. Plaintiff filed for divorce and the proceedings ultimately culminated in a June 29, 2004, dual final judgment of divorce (JOD). As reflected in the JOD, the parties had settled virtually all contested issues regarding equitable distribution, alimony, child support and custody, and the terms of their agreement were incorporated in the judgment. As to the health care and education of the children, however, the parties could not settle their differences and a two-day bench trial ensued. The trial judge incorporated his findings and conclusions on these issues in the JOD.
This appeal implicates two specific provisions of the JOD. The first, apparently consented to by both parties, provided
[D]efendant will purchase plaintiff's interest in the marital home as promptly as possible. Plaintiff will convey a Deed to defendant upon the tender of the money to her. Plaintiff must vacate the marital premises within thirty . . . days after receipt of the monies but not before June 30, 2004.
The second, based upon the judge's findings and conclusions after trial, provided
[D]efendant . . . shall be designated as the parent of primary decision making on the health care issues and education issues. The defendant is directed to consult with the plaintiff in the decision making process. The Court further appoints Cynthia Johnson, M.S.W., as parenting coordinator . . . to work with the parties, the goal being for them to ultimately share primary decision making. The Court further orders that at the end of one year, upon application by either party, the Court shall review this decision and the Court shall receive an interim report from the parenting coordinator containing her suggestions and recommendations.
Within weeks, defendant filed the first post-judgment application, signaling a continuation of the already acrimonious litigation. In support of his request for an order to show cause filed on and made returnable on July 20, 2004, defendant certified that he paid the monies required under the JOD for the purchase of the marital home to plaintiff on July 13, 2004. He claimed that plaintiff refused to vacate the home leaving both parties still in the residence, that plaintiff interfered with his relationship with his children, and that she had caused physical damage to the premises.
Plaintiff appeared pro se at the hearing. The judge noted that the JOD provided plaintiff with "30 days from the date she receive[d] the money to move out," and that the time simply had not expired. When defense counsel pressed the claim that plaintiff was vandalizing the premises, and should be required to vacate sooner, the following exchange took place between the judge and defense counsel:
[Judge.] He can bring the police to the house. He can get the locks changed. [Defense counsel.] Well, if he gets the locks changed . . . then we're out of this order. Thank you . . . . [I]f he changes the locks . . . then she doesn't get to live (sic) within thirty days, does she?
[Judge.] No. She can get the locks changed again. If they're changing locks on each other, that's what they do.
They're both entitled to live in the house right now.
One should not lock the other out.
They both have a right to be in the house.
I'm just speculating that if they both have a right to be in the house, they both have a legal right to get a locksmith to change the locks.
The judge entered an order denying defendant's application finding "no credible threat that substantial, immediate and irreparable harm will occur if the injunction does not issue."
The next day, July 22, 2004, defendant apparently did change the locks to the home while plaintiff was out necessitating her entry through a second-floor screen window. The police were summoned and they mistakenly advised plaintiff that she was not entitled to be on the premises. She was required to leave for the night and secure a hotel room with the children. Additionally, on July 23, 2004, defendant signed criminal complaints against plaintiff based upon her alleged unlawful entry into the premises.
On July 23, 2004, plaintiff appeared pro-se before the same judge requesting emergent relief enforcing those provisions of the JOD that permitted her continued residence in the marital home. We are advised that the judge did not consider the application on the record, but simply entered an order denying the relief, once again noting "no credible threat that substantial, immediate or irreparable harm will occur if the injunction does not issue."
On or about October 7, 2004, defendant filed a pro-se motion to enforce litigant's rights which sought a modification of his child support payment schedule. He also sought to enforce the terms of the JOD which he claimed required plaintiff, who had moved to Montgomery Township, to move back to Bergen County and be evaluated by a psychiatrist. Plaintiff cross-moved seeking various relief including increases in alimony and child support, modification of the parenting schedule, and "damages for [the] wrongful eviction" from the marital residence three months earlier.
The same judge who earlier denied the July applications heard the motion and cross-motion on November 19, 2004. The judge determined that defendant had established a good reason for modification of his child support and alimony payment schedule. She also ordered plaintiff to cooperate with the psychiatrist conducting the evaluation. The judge also awarded defendant $100 in counsel fees as a "symbolic sanction" for having to defend against plaintiff's cross-motion, which the judge characterized as a "whole bunch of bologna."
With respect to the substance of plaintiff's cross-motion, the judge determined that there was no change of circumstances that warranted an upward modification of child support or alimony. The judge also refused to hear any of plaintiff's argument regarding her "eviction" from the marital residence, noting, "Cross-motions . . . are limited to the issues that have been brought up in the motion. We are not here today about the eviction. That is not before me." The judge entered an order that, among other things, denied "plaintiff's cross-motion for increased support and other relief sought," and ordered a review hearing be held on December 3, 2004.*fn1
On July 20, 2006, plaintiff filed a pro-se motion seeking modification of the JOD with respect to healthcare and educational decision-making, parenting time, and other issues primarily relating to the children. In addition, plaintiff sought to "[t]erminate the use of Cynthia Johnson" as parenting coordinator, and, once again, reimbursement of various expenses related to her "eviction" from the marital residence in 2004. Defendant cross-moved and sought 1) sole custody of the children; 2) to limit plaintiff to supervised visitation with them; 3) to have the court order plaintiff to undergo psychiatric treatment before unsupervised visitation resumed; and 4) counsel fees.
On September 8, 2006, a different judge heard the applications. Plaintiff appeared pro-se, defendant appeared with counsel. Only plaintiff was placed under oath; defendant, who testified as to certain facts, was not.
The judge concluded there were no changed circumstances warranting modification of the terms contained in the JOD. When plaintiff sought to "explain some things that took place after the divorce," the judge answered, "I don't want to hear anything about the locking out." Later during the hearing, the judge characterized plaintiff's request for reimbursement of expenses caused by the 2004 lockout as "moot." When plaintiff asked for an explanation as to why the issue was moot, the judge responded, "Laches applies, res judicata . . . . It was already addressed." The judge noted the earlier judge "decided [it] when she decided not to decide it. She found it was not a legitimate basis for any relief . . . . It wasn't a legitimate issue."
Turning to the cross-motion, the judge essentially denied all relief sought by defendant. Neverthless, she also determined that plaintiff's "application . . . really [was] not [filed] in good faith" and lacked any "factual basis" supporting a change in circumstances. She awarded defendant counsel fees.
In companion orders entered that day, the judge included two provisions which frame the issues before us. She concluded any attempt by plaintiff to "revisit the circumstances of her removal from the former marital home" was barred by res judicata. The judge also ordered defense counsel to submit an order upon notice to plaintiff "for all counsel fees including charges for today's appearance."
Defense counsel did submit a certification of services totaling $8612.50 on September 13, 2006, and on September 19, the judge ordered plaintiff to pay that amount within ten days "as a sanction for initiating this frivolous motion, and failing to comply with the prior orders of the Court." Plaintiff's appeal ensued.
Plaintiff appeals only from those portions of the September 2006 orders that 1) determined her application for damages based upon her "wrongful eviction" from the formal marital home was barred by the doctrine of res judicata; and 2) awarded defendant counsel fees. After consideration of the arguments advanced by both parties on these issues, we reverse and remand for further proceedings consistent with this opinion.
We concur with plaintiff that her request to be reimbursed for expenses associated with her "eviction" from the former marital home was never decided on its merits. As she notes in her brief, neither judge ever decided whether defendant in fact violated the terms of the JOD by changing the locks in the marital home and otherwise refusing plaintiff access to the premises.
Res judicata can only bar a claim "[w]hen an issue of fact or law is actually litigated and determined by valid and final judgment." Hernandez v. Region Nine Housing Corp., 146 N.J. 645, 659 (1996) (quoting Restatement (Second) of Judgments §27, at 250 (1982)). That simply never occurred here.
In denying plaintiff's request for an order to show cause on July 23, 2004, the judge failed to explain any reasons for her decision. However, it is clear from her order that the judge only determined that the matter was not sufficiently emergent to require injunctive relief, but never reached the merits of the request.*fn2 When the issue resurfaced at the November 19, 2004, hearing, the judge's conclusion that the issue was not properly presented by a cross-motion once again avoided any adjudication of the merits of plaintiff's claim. Therefore, in 2006, the second judge mistakenly concluded that res judicata applied because the issue had never been litigated and determined.
Defendant's arguments that plaintiff's appeal is moot or time-barred are also not persuasive. Since plaintiff's claim was never specifically addressed on the merits, the July 23, 2004, the November 19, 2004, and the December 3, 2004, orders were not final judicial determinations and plaintiff could not have perfected an appeal by right from those orders. R. 2:2-3(a). She has, however, perfected a timely appeal from the 2006 order which is the only order that specifically addressed her claim.
Nor is her claim moot. An issue is moot when our decision "can have no practical effect on [an] existing controversy." Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254, 258 (App. Div. 2006). While plaintiff's claim that defendant willfully violated the terms of the JOD, if successful, can no longer effectively yield injunctive relief because of the passage of time, she has also asserted a claim for specific monetary damages. That claim has never been adjudicated, and if successful, plaintiff is entitled to appropriate relief.
In reaching this conclusion, we do not imply a particular result should occur. In light of the first judge's assertions that either or both litigants could legally "change the locks" to the house, plaintiff may not prevail on her claim that defendant willfully violated the terms of the JOD. Nevertheless, she is entitled to present her claim. We therefore specifically remand the matter to the motion judge for a determination on the merits.
Turning to plaintiff's second point on appeal, we agree that the award of counsel fees to the defendant was a mistaken exercise of the motion judge's discretion. We therefore reverse, and vacate that portion of the September 8, 2006, order dealing with the issue, as well as the September 19, 2006, order in its entirety.
We begin by noting that an award of counsel fees in a matrimonial action rests with the sound discretion of the motion judge whose decision must take into account the factors set forth in R. 5:3-5(c). Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007). One such factor is "the reasonableness and good faith of the positions advanced by the parties." R. 5:3-5(c)(3). But it is not the only factor.
The record does not reveal that the motion judge considered any of the other factors. While an award of counsel fees may be appropriate when a party acts in bad faith, Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000), it cannot be imposed upon a matrimonial litigant simply as punishment. See Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997)(holding award of counsel fees and other costs to be punitive particularly in light of the judge's failure to consider all appropriate factors).
While we might otherwise remand the matter to the motion judge for further consideration of the other factors contained in the rule, our review of the record leads us to a different result. The JOD contained a specific court order "that at the end of one year, upon application by either party" the Court would review the sharing of the parties' decision making relationship regarding issues of their daughters' healthcare and education. The JOD also specifically anticipated the court's review of the parenting coordinator's report.
When plaintiff filed her motion in 2006, she requested the review of these issues in accordance with the express terms of the JOD. In fact, the parenting coordinator had filed a "status report," apparently her first, dated August 10, 2006, with the judge. Therefore, the conclusion that plaintiff's motion was frivolous and made in bad faith is not supported by the record under review.
Lastly, the order awarding counsel fees includes a finding that plaintiff failed to comply with prior court orders. Our review of the transcript of the September 8, 2006, hearing fails to reveal any such finding by the judge or any evidence adduced that would support such a finding.
We therefore reverse paragraph four of the September 8, 2006, order denying plaintiff's request for relief based upon her unlawful removal from the marital home. We remand the matter for further proceedings.
We also reverse and vacate paragraph eleven of that order, as well as the entirety of the September 19, 2006, order, both of which awarded counsel fees to defendant.
Reversed and remanded; we do not retain jurisdiction.