On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1002-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Chambers.
Plaintiff Jeanne Keppel*fn1 appeals from a final order awarding defendant Peter N. Keppel $10,422.50 for counsel fees incurred in post-judgment litigation concerning residential custody of one of their two children. The underlying dispute was resolved by consent order entered more than two years after defendant filed the first post-judgment motion to modify residential custody. We vacate the counsel fees award and remand to permit the trial court to consider the application in accordance with Rules 5:3-5(c) and 4:49-2, Mani v. Mani, 183 N.J. 70, 94-95 (2005), and this decision.
The parties married in August 1988 and divorced in December 1995. They have two children. Their first child was born in 1990, and their second child was born in 1991. Although plaintiff has primary residential custody of the children under the terms of their final judgment of divorce, the parties' first-born child, who has a disability, lives at an academy and receives a specialized education.
Defendant's first motion for change of residential custody was filed in July 2005. At that point, their oldest child had been living at the academy for more than one year. Defendant sought residential custody of both children. Plaintiff resisted the application and sought counsel fees. The court entered an order requiring the parties to obtain family counseling or therapy, attend mediation concerning custody and exchange discovery relevant to child support. Counsel fees were not addressed.
The parties did not resolve the issues in mediation, and in October 2005, defendant filed a motion requesting an order transferring custody of the parties' oldest child to him, compelling plaintiff to attend family counseling, establishing a schedule for his parenting time with the youngest child and awarding counsel fees. Plaintiff objected and sought counsel fees.
In defendant's view, a modification of custody was in the child's best interest because he was the parent who spent time with the oldest child and regularly took him from the academy to his home. Plaintiff acknowledged that she had taken the child to her home for overnight or weekend parenting time two or three times in the past year, but said she visited him weekly at the academy and maintained regular contact with members of the staff.
Plaintiff contended that defendant's present wife's desire to gain "control" over plaintiff's children was the driving force for defendant's application. She supported that claim with a letter written by defendant's wife that was critical of plaintiff's parenting and stated her desire to take plaintiff to court. Defendant's wife later acknowledged that the tone of her letter was combative. Plaintiff did not want defendant's wife to make decisions about her child.
Plaintiff also alleged that defendant could not care for the child. She supported that claim with a police report on a motor vehicle stop. Defendant explained that his car was stopped because the child, distressed about returning to the academy, acted out in the car en route. According to defendant, the minor injuries to the child's nose and forehead, which were treated at the scene, were self-inflicted. Plaintiff also made unsupported allegations about defendant's involvement with a child protective services agency in another jurisdiction. The record does not indicate that plaintiff took any action to obtain a court order restricting defendant's contact with either of their children.
The court concluded that plaintiff was entitled to a hearing on her objections to a change in custody. On December 27, 2005, having received no objection from plaintiff's attorney, the court entered an order that had been submitted by defendant's counsel. That order established a schedule for pre-trial submissions and included a determination that, based on the limited parenting time plaintiff had exercised, she would be required to establish that a change of custody was not warranted. In part pertinent to counsel fees, the order provided: "Unless the [c]court finds that [p]laintiff's objection to [d]efendant's request to be designated [the child's] primary caretaker, and [p]laintiff's further request for a plenary hearing in connection with [d]efendant's request is legitimate, authentic, and based on the factors enumerated in Mackowski, the [c]court shall award [d]efendant counsel fees and costs."*fn2
Plaintiff's counsel objected to the form of order in February 2006 and in March 2006 filed a motion to revise the order. Defendant filed a cross-motion opposing the application. Although plaintiff's counsel submitted a revised order with leave granted, the form of order was never resolved. After the trial scheduled for August 2006 was adjourned because neither party had expert reports, the parties resolved the custody dispute by a consent order that transferred primary residential custody of the child to defendant. The question of counsel fees was not resolved, and the court set a schedule for submission of briefs and a plenary hearing to resolve that issue.
Ultimately, the trial court resolved the issue of fees without a hearing. The court's findings are incorporated in the order requiring plaintiff to pay a share of ...