April 6, 2009
ANNICQ GROETSEMA, PLAINTIFF-RESPONDENT,
LISA GROETSEMA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-996-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 opinion reciting each factor listed in the Rule and applying the facts of this case to those factors.
As to the financial circumstances of the parties, the court found that Annicq had gross income of $1,354 per week and paid child support to Lisa of $471 per week. The court also noted that Annicq did not have the financial resources to pursue his application for parenting time. Lisa earned about $8,000 per year, supplemented by the child support of $471 per week.
Relating these findings to the second factor, ability of the parties to pay their own fees or contribute to the other party's litigation costs, the court found that each party had the ability to pay his or her own fees.
As to reasonableness and good faith of the positions advanced, the court recognized that whether a party took a litigation position in good or bad faith is a relevant factor in determining whether to grant an award of attorney's fees. See N.J.S.A. 2A:34-23; Diehl v. Diehl, 389 N.J. Super. 443, 455 (App. Div. 2006). However, the court also stated correctly that attorney's fees must not be awarded simply to punish a party. Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999). In this matter, the court found that Annicq had not deprived the children of medical insurance coverage but had acted unreasonably in delaying authorization for the diagnostic testing while he pressed his application for parenting time.
Concerning fees incurred by the parties, the court found that Annicq's attorney's fees and expenses were $5,157 and Lisa's $9,821. No counsel fees had previously been awarded during the litigation. As to fees each party had paid to counsel, Lisa had paid significantly more than Annicq up to that date, although the decision does not clarify for which of the several proceedings fees had been paid since the judgment of divorce was entered.
With respect to results achieved, the court recognized that Lisa had succeeded in obtaining authorization to communicate directly with the insurance carrier and that Annicq had withdrawn his application for parenting time. The court noted, however, that the allegations of sexual abuse made by Lisa against Annicq had been previously considered and determined not to be supported by any evidence gained through the psychiatric evaluation.
Next, the court found that both parties' applications had been made to enforce existing court orders and that both attorneys' charges were fair and reasonable. Finally, as to any other factors, the court found that Lisa had been granted exclusive possession of the marital home through the divorce judgment, that she had sold the home, but that she had not provided documentation as to disposition of the proceeds.
Based on these findings, the court denied Lisa's application for attorney's fees and costs, concluding that:
Father did not act unreasonably since Mother excluded him from medical consultation and communication. Father's request for parenting time cannot be considered bad faith conduct. Father's withdrawal of his Cross Motion represented a reflection of his limited financial resources, thus cannot be reviewed [sic] as bad faith either.
We see no ground for disagreeing with this conclusion. While the trial court described Annicq's position as unreasonable in delaying authorization for his son's medical tests, the court's ultimate conclusion was that Annicq had a good faith basis for contesting Lisa's prior conduct in depriving him of information about their son's medical condition and in her efforts to exclude him from participation in medical decisions. The seeming discrepancy in the court's dual references to Annicq as "unreasonable" and "reasonable" can be adequately reconciled in terms of the specific conduct referenced. On the one hand, Annicq was unreasonable in delaying medical testing and treatment, but overall he had legitimate complaints and concerns about being shut out of medical decisions about his son, and his request for parenting time was made in good faith considering the absence of evidence of sexual abuse and his need to learn firsthand about his son's medical condition.
Lisa contends that she could not communicate with Annicq about their son's condition because of the domestic violence restraining order. The record on appeal does not contain a copy of the order and the parties have not provided information about its particulars. Even where a restraining order has been issued, however, parents must be told important information about their children, especially serious medical situations. Lisa should have communicated through third parties, perhaps the attorneys, or returned to the court for modification of the restraining order to provide for acceptable means of communication.
Lisa argues that the trial court improperly faulted her for not filing a new case information statement and for not providing documentation about disposition of the proceeds from the sale of the marital home. She says the court should have accepted her statement that she spent the proceeds on prior litigation costs. Whether a case information statement was required or not, the financial circumstances of the parties are relevant factors when considering attorney's fees and the proceeds from the sale of the marital home were potentially available to Lisa to pay her own fees. Also, despite a significant disparity in the gross employment incomes of the two parties, the child support payments from Annicq to Lisa reduced the difference in net disposable income. Annicq's decision not to pursue litigation for parenting time was a further indication of his limited financial resources. The court's determinations regarding the relative financial circumstances of each party were supported by the record. The court was justified in demanding further information about disposition of the proceeds from sale of the marital home.
We conclude that the trial court properly followed the dictates of Rule 5:3-5(c) in determining whether Lisa was entitled to attorney's fees and did not abuse its discretion in denying her application.
The order under review is affirmed.
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