On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-236-07.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2008
Before Judges Lisa, Reisner and Sapp-Peterson.
In this custody dispute, defendant A.T. appeals from three orders*fn1 issued by the Family Part: (1) the June 13, 2007 order directing her to pay $8,500 in pendente lite counsel fees in connection with her May 25, 2007 motion for reconsideration of the court's March 23, 2007 order denying defendant's motion to stay plaintiff's divorce complaint and dismiss plaintiff's custody petition; (2) the January 15, 2008 order denying her motion for registration and enforcement of the order of the One-Member First Instance Court of Athens (First Instance Court) issued April 22, 2004, granting temporary custody of the minor children born of the marriage to her; and (3) the February 13, 2008 order directing her to pay $2,500 in counsel fees to plaintiff's attorney and $900 for trial preparation by Dr. Sharon Ryan-Montgomery, plaintiff's custody expert. We reverse the June 13, 2007 order awarding counsel fees and the February 13, 2008 order directing reimbursement of the expert's trial preparation fee, but otherwise affirm.*fn2
Plaintiff and defendant, who are originally from Greece, are both naturalized United States citizens. They married in 1991 in New Jersey and resided in Boonton. They have three children, two of whom were born in New Jersey: A.A., a son, born March 25, 1992, and S.A., a daughter, born July 22, 1993. Their last child, P.A., a son, was born in Greece on July 1, 2000. In 1995, the parties returned to live in Greece where plaintiff pursued a business enterprise with a friend that involved exporting American products to Greece. After a couple of years, the business venture proved unsuccessful, but the parties and their children remained in Greece. Defendant secured full-time employment with the Greek government, for whom she had previously worked. According to plaintiff, in July 2003, based upon an agreement reached by both plaintiff and defendant that the family should return to the United States, he and their two sons, A.A. and P.A., returned to Boonton with the expectation that defendant would eventually join them with their daughter. According to defendant, however, no such agreement had ever been reached. Rather, plaintiff led her to believe that he was only returning to New Jersey for a visit, as he had done in the past, because his parents were there and also for business reasons.
After it became clear to defendant, during a telephone conversation with plaintiff, that he was not returning, defendant filed an application on October 31, 2003, before the First Instance Court seeking temporary custody of all three children.*fn3 On December 1, 2003, defendant filed a criminal complaint with the District Attorney of the Magistrate's Court of Athens alleging that plaintiff had abducted her two children, was illegally detaining them and threatening to do likewise with respect to their daughter.
A hearing was conducted by the First Instance Court on March 31, 2004. Neither party personally appeared, but were represented at the proceeding by a designated representative. Two witnesses allegedly testified at this proceeding. Defendant submitted an affidavit in support of her application. On April 22, 2004, the Greek court entered an order granting temporary custody to defendant. The court's written decision, incorporated in the order, references its consideration of "the opposing party['s] affidavit[.]" However, plaintiff denies ever submitting a sworn statement in connection with this particular proceeding. The court found that the parties had not reached an agreement that they would return to Boonton, New Jersey, and that Boonton had "minimum [G]reek families and has no Greek school. Thus[,] the children are forced to attend an American school." The court also concluded:
[T]here are no individuals to take care of the children, since the defendant works, his parents are overage and furthermore must also take care the three minor children of his sister who died. On the contrary, the applicant is a capable mother, her parents as well as her sister assist her for [sic] the children's care[.] Subsequently [sic] she is the most appropriate person to take care the children. Moreover, they must continue [t]heir studies at a Greek school as attended also during previous years.*fn4
Defendant claims the order granting her temporary custody of the children was served upon plaintiff in Boonton on December 29, 2004. Plaintiff denies that he was ever served with the order. On May 10, 2004, defendant filed a complaint in the First Instance Court for divorce and custody of the three minor children. Then, on February 25, 2005, defendant commenced an action under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention - International Child Abduction) in federal district court in New Jersey.*fn5
On August 14, 2006, plaintiff filed a verified complaint for divorce and, in the complaint, also sought custody of the three children born of the marriage. Defendant claimed that the following month, on September 4, 2006, plaintiff was served with a copy of the divorce complaint that had been filed in Greece two years earlier. Defendant also contended that plaintiff had been served with a copy of the divorce complaint in December 2004. Plaintiff denied ever being served with a divorce complaint. On December 8, 2006, in accordance with the Hague Convention for Service Abroad of Judicial or Extra-judicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, defendant was served in Greece with a copy of plaintiff's New Jersey's summons and complaint for divorce, custody, child support, equitable distribution, counsel fees and costs.
On January 5, 2007, defendant filed a Notice of Limited Appearance, seeking a stay of plaintiff's divorce complaint and the dismissal of plaintiff's custody application. On March 23, 2007, the court denied defendant's motion, finding that it had subject matter and personal jurisdiction over the divorce action which would proceed concurrently with the Hague Convention -International Child Custody action that was pending in federal district court. On May 25, 2007, the court denied reconsideration of the March 23, 2007 order and reserved decision on plaintiff's cross-motion for counsel fees pending resubmission and an updated certification. The court found that defendant "waived any further objections to the exercise of jurisdiction, sufficiency of service or joinder of parties, pursuant to [Rule] 4:6-3, [Rule] 4:6-6 and [Rule] 4:6-7."
On June 13, 2007, the court entered two orders. The first, a consent order, allowed plaintiff to withdraw his April 5, 2007 request to enter default, permitted the court to "have jurisdiction to enter a judgment as to marital status of the parties only[,]" and allowed defendant to file a responsive pleading to plaintiff's "pending Complaint for Divorce within ten (10) days." In the second order, the court awarded counsel fees to plaintiff totaling $8,500. In a statement of reasons included in that order, the court stated:
The decision of May 25, 2007 was an affirmation of the prior decision and it denied defendant's application for reconsideration. The Court applied the principles set forth in [Rule] 5:3-5(c); particularly, (3) the reasonableness and good faith of the positions advanced by the parties and (7) results obtained. The issues are complex as there are three parallel litigations, in Greece, in Federal Court and in this Court. The Court has reviewed the Affidavit of Services and concludes that $7,500.00 is reasonable and appropriate for the firm of Paras, Apy & Reiss, P.C. This firm assumed the primary burden of addressing the international issues and those issues relating to the three separate courts. The firm of Arons & Solomon, P.A., as principal counsel, undertook some efforts in assistance of co-counsel. The Court has specifically not awarded fees to both firms for their appearance in Court as that would be duplicative.
A final judgment of divorce (FJOD) was entered on July 3, 2007. The FJOD expressly incorporated the Greek divorce judgment that the court acknowledged had been entered in Greece on March 25, 2007 and stated that all other issues between the parties "remain[ed] unresolved and subject to adjudication of this Court."
On December 3, 2007, defendant filed a notice of motion seeking to register and enforce the April 22, 2004 Greek custody order, and also seeking the entry of a declaratory order granting custody of all three children to her.*fn6 On December 21, 2007, plaintiff served a subpoena upon Dr. Ryan-Montgomery to appear as an expert witness at the New Jersey custody trial, which was scheduled for January 14, 2008. A check in the amount of $900 was issued to reserve Dr. Ryan-Montgomery's time to appear at the trial.
Trial commenced on January 15, 2008. The court first addressed defendant's motion to register and enforce the temporary custody order issued by the Greek court. Defendant argued that under principles of comity, the court was obliged to defer to the earlier Greek order because plaintiff had voluntarily submitted himself to the jurisdiction of the Greek court and had filed a counter application for custody. The court disagreed and found that because the record of the Greek proceedings was so lacking in factual findings, the court was not required to defer to the earlier decision.
Just before testimony commenced, the court confirmed that the parties had reached an agreement on the issue of custody as to their son, A.A., and their daughter, S.A., and that the court was being asked to only decide the issue of custody as it related to their son, P.A. Plaintiff testified and produced three witnesses on his behalf. Defense counsel stipulated to the admissibility of the custody evaluation report prepared by plaintiff's expert, Dr. Ryan-Montgomery, in lieu of her testimony. The report cards for the parties' two sons were admitted as joint exhibits. Defendant did not appear for the trial, nor did she produce any witnesses on her behalf or introduce any exhibits. Defense counsel, however, cross-examined the witnesses.
In summation, defense counsel indicated that in view of the court's decision denying defendant's motion to register and enforce the Greek temporary custody order and the evidence plaintiff presented, defense counsel expected that custody would be awarded to plaintiff and therefore focused his argument on whether counsel fees should be awarded. He argued that defendant's actions during the course of the litigation were motivated by good faith and that ultimately the stay of the divorce proceedings that defendant sought, which the court initially denied, was granted when the parties received a trial date on the federal action. Defense counsel further argued that throughout the course of the proceedings, the court never ruled on the validity of the Greek order granting temporary custody. Additionally, defense counsel maintained that the motion for reconsideration was filed in good faith because there in fact had been a mistake, namely, the court, during the March 23, 2007 oral argument, remarked that there was no proof that plaintiff had been served with the divorce complaint, when in fact there was proof of service in the court's file and his file that both he and the court had apparently overlooked. Finally, defense counsel argued that the economic positions of the parties were both "exactly the same."
Plaintiff's counsel's summation addressed both custody and counsel fees. She argued that the proofs presented on plaintiff's behalf addressed all of the statutory factors, set forth in N.J.S.A. 9:2-4(c), which guide courts in custody determinations, and plaintiff had demonstrated the best interest of P.A. was that custody be awarded to plaintiff. On the question of counsel fees, plaintiff's counsel argued that plaintiff's income was nominal, defendant's attorney refused to accept service of the divorce complaint, defendant had not yet paid the pendente lite counsel fee award ordered in June 2007, and plaintiff was required to pay a trial preparation fee for Dr. Ryan-Montgomery, only to be told on the day of trial that there was no objection to the introduction of the report in lieu of her testimony. Plaintiff's counsel also argued that defendant took unreasonable positions during the course of the litigation:
[Defendant] has simultaneously appeared through counsel, argued her case, and objected to jurisdiction. . . . [Plaintiff] has been required to pay for appearances at motions, early settlement panels, case management conferences, and trial, none of which [defendant] has appeared at.
[Defendant] through counsel agreed to attend mediation. That was an agreement that was done with the assistance of the Court. My office spent a considerable amount of time searching for a Greek-speaking mediator and speaking for a -- and looking for a Greek-speaking therapist for the children because we were going to try to tie the mediation and the therapy together. And then it didn't happen. She wasn't coming.
At the conclusion of summations, the court directed an inquiry to plaintiff's counsel: "You're asking for two things, the custody decision and the fees. Is that correct?" It was at that time that plaintiff's counsel advised the court, "Well, I'm also asking for Your Honor to address equitable distribution." She advised the court that she was holding approximately $81,000 in her trust account, which represented proceeds from the sale of the former marital home. During the trial, plaintiff testified that the house was a premarital asset and no marital funds were used to maintain it. Defense counsel argued that the increased value of the home as of the date the parties married was subject to equitable distribution. Plaintiff's counsel disputed this position. The court made no findings at that time on the issue of equitable distribution, but did render its oral decision awarding sole legal and physical custody to plaintiff.
Although defense counsel presented no proofs in support of defendant's counterclaim for custody of P.A., the court expressly recognized its obligation to render a decision in the "best interest of the child." The court explained that before rendering its decision, it was obliged "to view all the facts and make a clear decision regardless of whether both sides are represented, by represented I mean present testimony, or not."
The court initially determined that it was not necessary that it conduct an interview with P.A. before reaching its decision because Dr. Ryan-Montgomery had interviewed both boys and the results of those interviews were included in her report, which was introduced into evidence, without objection, in lieu of her testimony. Both boys expressed their strong preference to remain with their father and each other, in the United States, without being pressured by their mother to return to Greece.
The court then considered the relevant statutory factors set forth in N.J.S.A. 9:2-4(c). The court found that both parents were fit and expressed their desire to be awarded custody of P.A. However, given their geographic locations and the refusal of plaintiff to allow A.A. and P.A. to travel to Greece and defendant's refusal to permit S.A. to travel to Boonton, the court determined that it could not expect any cooperation between the parents in making decisions related to P.A.'s well-being. The court concluded that for the past five years, plaintiff and his sons had been living in New Jersey, and plaintiff had provided a stable home environment, which also included his elderly parents with whom both boys enjoyed a close relationship. The court also observed that during the time the entire family lived in Greece, plaintiff had been the primary caretaker for all three children.
The court considered Dr. Ryan-Montgomery's findings that the boys were thriving in their current environment and were successful students. The court also referenced plaintiff's testimony that both boys were involved in extracurricular activities, including music and sports. The court found the school records that were admitted as joint exhibits confirmed Dr. Ryan-Montgomery's findings and plaintiff's testimony that both boys were doing extremely well.
The court expressed that it had no idea how defendant planned to meet P.A.'s emotional, physical, or educational needs since "[s]he's chosen not to come here even though she's aware of the proceedings and has participated through counsel." While the court was confident plaintiff could meet P.A.'s needs, it found that defendant had failed to demonstrate "either [an] ability or willingness to co-parent. She has simply stayed in Greece and objected to the kids being here." The court was therefore satisfied that awarding sole legal and physical custody to plaintiff was in P.A.'s best interest. On February 5, 2008, the court entered an order awarding custody of P.A. to plaintiff and releasing the $81,000 being held in escrow to plaintiff.
In an order dated February 13, 2008, the court directed defendant to reimburse plaintiff for Dr. Ryan-Montgomery's $900 trial preparation fee and awarded plaintiff $2,500 in counsel fees. In the statement of reasons incorporated in the order, the court found that had defense counsel advised his adversary and the court within a reasonable period of time that he would not object to the admissibility of Dr. Ryan-Montgomery's report in lieu of her appearance, plaintiff would not have incurred this cost and the court would not have had to "set aside as much time for trial as it had."
As to counsel fees, the court found that defendant failed to proceed in good faith regarding her claimed entitlement to equitable distribution of the $81,000 because she failed to submit a case information statement, failed to appear at trial to provide testimony and otherwise failed to present any evidence to dispute this claim. The judge concluded that "[d]efendant simply required plaintiff to present its proofs and the Court to spend its time and efforts reaching a decision which was inevitable." The court viewed defendant's conduct during the course of the litigation as unreasonable and as a justification for the award of the $2,500 in counsel fees. The present appeal followed.
On appeal, defendant raises the following points for ...