March 11, 2009
YELLEDTH ZUNGU AND MABEL ZUNGU, PLAINTIFFS-APPELLANTS,
BONGI ZUNGU, DEFENDANT-RESPONDENT, AND DAVE MARZOUCA, DEFENDANT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FD-02-0712-08-X.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Fisher and Baxter.
The sole issue presented by this appeal is whether Judge Ustas abused her discretion when she entered an order requiring plaintiffs, Yelledth and Mabel Zungu, to pay $7,485 to defray the counsel fees expended by their daughter, defendant, Bongi Zungu. After reviewing the moving papers and taking testimony from the parties, the judge dismissed plaintiffs' custody and visitation complaint, finding that plaintiffs' allegations of their daughter's parental unfitness were unwarranted and unsubstantiated.
In fact, the judge observed that the custody and visitation complaint was filed in bad faith. The judge reasoned: [Plaintiffs] have been vicious toward their daughter. [T]hey scrutinize[d] every single record in her bank account and [if her] bank records show[ed] a . . . $200 difference, they made that a cause to attack her credibility.
The putting in writing that a psychic friend is saying that [defendant] is abusing the child as a basis for attacking [defendant] is absolutely incomprehensible to me. [Plaintiffs] have forced [defendant] into a very difficult situation and I was really astounded by the viciousness in their attack . . . on [defendant].
I don't see any efforts to try to resolve this issue amicably. Those types of e-mails would make me run for the hills if . . . I received something like that from my parents.
. . . [N]othing justifies the viciousness, the animosity, the hostility, the vitriol in [their] attack upon their own daughter.
On appeal, plaintiffs argue: 1) the award of counsel fees was unwarranted because the judge's finding that their initial custody and visitation suit was initiated in bad faith is unsupported by the record; 2) the trial judge erred when she concluded that plaintiffs have the ability to pay defendant's counsel fees; and 3) the award of counsel fees and costs against them was punitive in nature.
Plaintiffs' arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. A court may award counsel fees to the prevailing party in a custody action. R. 5:3-5(c). Having determined that plaintiffs filed their custody complaint in bad faith, the judge reviewed the economic circumstances of plaintiffs, and concluded that they possessed the financial ability to defray their daughter's counsel fees. Judge Ustas's conclusions find ample support in the record.
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