May 20, 2008
JEANNE KEPPEL, PLAINTIFF-APPELLANT,
PETER N. KEPPEL, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2008
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 defendant's fees. The following findings are stated:
WHEREAS the [c]court has reviewed the [d]efendant's trial brief and the [p]laintiff's trial brief with regard to allocation of attorney's fees in the above captioned matter, and;
WHEREAS [the child] . . . is a special needs child . . . residing at [the academy], and;
WHEREAS the dispute between the parties is centered on whether it would be the plaintiff mother or the defendant father, who would be designated as parent of primary residence for their special needs child, and;
WHEREAS the [c]court has found that it was the defendant father who regularly exercised parenting time with [the child], visiting him every other weekend and for extended holiday and vacation parenting time, and;
WHEREAS the [c]court finds that over the last several years the plaintiff has only experienced several overnight visitations with [the child], and;
WHEREAS the [c]court finds that the legal issues of designating a primary decision maker with regard to the major education and medical treatment of [the child] was first brought to the [c]court's attention by defendant in January 2004, and;
WHEREAS on March 4, 2005[, a judge] entered [an] [o]rder providing the defendant with "equal say" in all educational and medical and other child rearing decisions with regard to the couples' two children (including [this child]), and;
WHEREAS the [o]rder entered by [that judge] specifically provided that the defendant be involved in [academy] decisions with regard to [this child], and;
WHEREAS there ensued multiple motions filed on behalf of the parties with regard to the issue primary residential parenting responsibilities, and;
WHEREAS the [c]court finds that the defendant was required to file enforcement motions continuing to request logical or factually based justifications for the plaintiff's opposition to defendant's request to assume responsibility for [the child] whom he had regularly visited and cared for during his residency at the [academy], and;
WHEREAS the [c]court finds that the plaintiff's litigation strategy was vexatious, not rooted in the facts of her relationship with [the child] and partially in bad faith, and;
WHEREAS on December 9, 2005[,] the [c]court established a date for a [p]lenary [h]earing and entered an [o]rder requiring witness lists and expert reports be submitted, and;
WHEREAS that [h]earing was cancelled by the [c]court on the basis that it has received no expert reports, and;
WHEREAS at a [h]earing on August 17, 2006[,] the [c]court opined that on the basis of the plaintiff's failure to adhere to prior [c]court [o]rders and defendant's necessity to continue to file motions seeking involvement in the medical, educational and other decisions with regard to [the child], would require the plaintiff to pay a portion of the legal fees incurred by defendant, and;
WHEREAS the [c]court has reviewed the [c]ertifications of the parties, legal briefs submitted by counsel, and [c]ertification of [s]ervice, and the [c]court having analyzed the documents pursuant to the standard set forth for an award of attorney fees pursuant to the applicable case law criteria, and;
IT IS ORDERED on the 30th day of May, 2007, ORDERED AS FOLLOWS:
1. The sum of $10,422.50 shall be paid from plaintiff to the defendant. This sum is based upon the [c]court's analysis of the [c]ertification of [s]ervices prepared by Davis & Mendelson, L.L.C. for attorney's time and fees expended between October 5, 2005[,] and September 29, 2006, and is an allocation of a portion of the invoices rendered, and, it is further ORDERED that
2. This sum may be paid by plaintiff in installments distributed over the next [twenty-four] calendar months to defendant.
The findings set forth above are not adequate to permit us to review this counsel fee award. "[T]he award of counsel fees in a matrimonial action is discretionary with the trial court and an exercise thereof will not be disturbed in an absence of a showing of abuse." Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999); see Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970) (same); N.J.S.A. 2A:34-23 (authorizing award of attorney fees). "[J]udicial discretion means legal discretion in the exercise of which the court must take account of the law applicable to the particular circumstances of the case and be governed accordingly." State v. Madan, 366 N.J. Super. 98, 110 (App. Div. 2004) (quoting Wasserstein v. Swern & Co., 84 N.J. Super. 1, 6 (App. Div.), certif. denied, 43 N.J. 125 (1964)). "[I]f the trial judge misconceives the applicable law or misapplies it to the factual complex, in total effect the exercise of legal discretion lacks a foundation and becomes an arbitrary act." Ibid. Because the trial court did not articulate factual findings or correlate factual findings with the relevant legal standards, we are left to speculate about whether this exercise of discretion is founded on the evidence and the law or an arbitrary act. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) (discussing the trial court's responsibility to state findings of fact and conclusions of law); Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986) (discussing the trial court's obligation to state findings of fact and legal conclusions relevant to a discretionary decision). For that reason, we vacate the order and remand.
An award of counsel fees in matrimonial actions, including post-judgment litigation, is authorized by N.J.S.A. 2A:34-23. The court must "'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.'" Mani, supra, 183 N.J. at 93-94 (quoting N.J.S.A. 2A:34-23). The relevant Rules are 5:3-5(c) and 4:42-9. The Supreme Court has described the essential elements of the inquiry required by the statute and Rules as follows:
[T]he 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, supra, 183 N.J. at 94-95.]
It is clear that "the reasonableness and good faith of the positions advanced by the parties" is one of several factors that the court must consider. R. 5:3-5(c)(3).*fn3 But "bad faith for counsel fee purposes relates only to the conduct of the litigation . . . ." Mani, supra, 183 N.J. at 95. Only egregious conduct that forces unnecessary expenditures for counsel fees - not assertion of a reasonable position ultimately rejected by the court - warrants an award in favor of a party who has the ability to pay his or her own fees. Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (noting that the assertion of a position ultimately rejected by the court is not sufficient to establish bad faith). Findings of bad faith have been approved when based on conduct that unnecessarily complicates discovery or trial or increases litigation costs through defiance of court orders. See Yueh v. Yueh, 329 N.J. Super. 447, 461-62 (App. Div. 2000) (discussing relevance of failure to comply with discovery and defiance of court orders); Chestone, supra, 322 N.J. Super. at 259 (approving consideration of lack of candor); Kothari v. Kothari, 255 N.J. Super. 500, 513 (App. Div. 1992) (approving consideration of conduct involving dissipation of assets that had an impact on the "type of trial" required). Even in cases involving conduct that supports a finding of bad faith, our courts consider whether "the amount of the counsel fee awarded is compatible with [the recipient's] financial needs and the [payor's] ability to pay." Kothari, supra, 255 N.J. Super. at 513; see also Chestone, supra, 322 N.J. Super. at 259 (disapproving punishment of litigation misconduct through a counsel fee award that was grossly disproportionate to the amount in dispute). We simply cannot determine whether the trial court considered any factor other than "bad faith." Moreover, we cannot access the finding of bad faith because the trial court did not articulate the facts that support it.
We vacate the order and remand for reconsideration based on the record and the controlling legal standards. The trial court must make factual findings relevant to the legal standards and correlate its factual findings and legal conclusions. An evidentiary hearing is not required unless material facts are in dispute; while a trial court must identify the litigation conduct that support a finding of bad faith, a trial court need not conduct an evidentiary hearing to draw inferences that are supported by facts in the record. See S.N. Golden Estates, Inc. v. Continental Cas. Co., 293 N.J. Super. 395, 408 (App. Div. 1996) (noting that the trial court may rely upon its own knowledge of a case, but stressing that "this does not absolve the judge of the responsibility of making adequate findings of fact and conclusions of law").