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Groetsema v. Groetsema

April 6, 2009

ANNICQ GROETSEMA, PLAINTIFF-RESPONDENT,
v.
LISA GROETSEMA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-996-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 18, 2009

Before Judges Stern and Ashrafi.

In this post-judgment matrimonial matter, defendant appeals the denial of her application for attorney's fees by order and written decision dated June 16, 2008. The trial judge having considered and made findings of all factors required by Rule 5:3-5(c), we affirm.

After four days of trial in their divorce case, plaintiff husband, Annicq Groetsema, and defendant wife, Lisa Groetsema, reached a settlement leading to a dual judgment of divorce on January 5, 2005. The judgment included joint legal custody of the two young children, with Lisa retaining primary residential custody and Annicq permitted unsupervised parenting time subject to psychiatric evaluation regarding whether the children had been sexually abused. The judgment also required that Annicq maintain medical insurance for the children through his employment. About a year after the divorce, Lisa obtained a final domestic violence restraining order against Annicq.

A psychiatric evaluation was completed and the doctor reported that he found no evidence supporting Lisa's allegations of sexual abuse. In October 2006, Annicq applied to the court to resume his parenting time. Lisa filed a cross-motion to suspend contact between Annicq and the children. The court initially granted Annicq's motion for parenting time, but then DYFS intervened, recommending that the family undergo therapy before Annicq's parenting time resumed. The court modified its order and required that Annicq participate in therapy. Annicq attended several sessions of therapy and then stopped, later claiming that his insurance would not cover the costs and he could not afford it.

While these matters were pending, the parties' seven-year-old son was hospitalized in the spring of 2006 because of seizures, and he was diagnosed with a serious medical condition, tuberous sclerosis complex. Lisa did not inform Annicq about their son's hospitalization or medical treatment. He learned about it through bills he received from the hospital and was upset that he had not been informed or consulted about the hospitalization.

Annicq alleges that his son was hospitalized again in December 2006 because of serious psychological risks. He states that he only learned about this hospitalization when the hospital called him days later for discharge authorization. He also alleges that Lisa impersonated him in a telephone call to the medical insurance carrier (Annicq's name not being readily identifiable as male or female) and, without his knowledge, changed the mailing address and the children's pediatrician on the insurance records. Lisa denies making such a call.

In about May 2007, doctors requested diagnostic testing to evaluate the boy's condition and to determine appropriate medications. Lisa's attorney wrote to Annicq's attorney requesting authorization for Lisa to deal directly with Annicq's medical insurance carrier to discuss coverage for medical testing and treatment, including an EKG, ophthalmologic examination, and neuropsychological testing. The attorney also said that Lisa had been informed that Annicq had expressly instructed the carrier not to take direction from Lisa but to communicate with him. Annicq's attorney responded that authorization would not be given because Lisa had kept Annicq uninformed about the son's condition and treatment. Also, Annicq demanded supervised parenting time so that he could see and evaluate for himself his son's condition.

Lisa filed an order to show cause on May 25, 2007, requesting authorization to communicate directly with the insurance carrier and other relief, including attorney's fees. Annicq filed a cross-motion for parenting time. The court heard argument on both applications on June 22, 2007. The court entered a qualified medical child support order on July 13, 2007, designating Lisa as the representative of the two children under the medical insurance plan, and ordering the plan to send copies of all correspondence and claims to both parents.

The court also scheduled an evidentiary hearing for July 31, 2007, to address Annicq's application for parenting time and directed that his therapist testify at the hearing. Counsel for Lisa took the deposition of the therapist a few days before the scheduled date of the hearing. Annicq's attorney did not attend, stating that Annicq could not afford the costs.

One day before the scheduled hearing, Annicq withdrew his application for parenting time, again stating that he could not afford the litigation costs. Lisa's attorney demanded that the attorneys nevertheless attend court on the date of the hearing and there pressed his application for attorney's fees and expenses of almost $10,000 on the cross-applications. The court's decision denying the application for attorney's fees and expenses was issued in June 2008. Lisa filed a timely notice of appeal.

Rule 5:3-5(c) expressly grants discretion to the trial court to decide issues of attorney's fees in the Family Part, and it lists factors the court must consider in reaching its decision. On appeal, we review the trial court's decision for abuse of discretion. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). In this case, the trial court issued a written ...


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