May 12, 2009
C.P., SR., PLAINTIFF-APPELLANT,
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FD-18-595-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically March 3, 2009
Before Judges Reisner and Sapp-Peterson.
Plaintiff appeals from that part of the March 17, 2008 Family Part order denying plaintiff's*fn1 request for support and child care credit during a period of time that he served as the custodial parent, and the April 1, 2008 order directing plaintiff, who was represented by Legal Services, to pay $8,485.26, the full amount of counsel fees sought by defendant's attorney. We affirm the denial of child support credits to plaintiff but reverse the award of counsel fees and remand for further proceedings.
The parties were involved in a dating relationship and briefly resided together during the spring of 2006. Together they had one child, C.P., born on March 19, 2004. In January of 2007, the Division of Youth and Family Services (DYFS) removed C.P. from defendant's custody and plaintiff became the custodial parent until August 2007, when DYFS determined that defendant was again capable of resuming her role as the custodial parent.
On May 7, 2007, plaintiff filed a pro se application for custody of C.P. One month later, Legal Services of Northwest Jersey, Inc. entered an appearance on behalf of plaintiff. Defendant retained private counsel. Although there were interim motions and cross-motions filed by the parties, the actual custody hearing did not take place until February 19, 2008. At that time, the parties settled the custody and parenting time issues. As part of the agreement, plaintiff also agreed that in the event he was dissatisfied with the court's decision on the issue of counsel fees, he could not reopen his claim seeking a credit for child support for the eight-month period that C.P. resided with him:
[PLAINTIFF'S COUNSEL]: Judge, may I ask a couple of questions of my client?
THE COURT: Yes, sir.
[PLAINTIFF'S COUNSEL]: [Plaintiff], do you understand that as part of this settlement you will not be able to - - even if you don't like the Judge's decision as to counsel fees - - you won't be able to come here and ever reopen the issue of the fact that you received no support for a period of time - - actually, you didn't ask for it from January until May and then from May to August. You know that is gone by making this settlement?
[PLAINTIFF'S COUNSEL]: Knowing that's gone, do you still want to make the settlement?
The court memorialized the parties' agreement and its rulings in an order dated March 17, 2008. In paragraphs six and seven of the order, the court addressed defendant's claim for counsel fees:
6. The court has denied [plaintiff's] request for payment of support and contribution to day care expenses since his May 7, 2007 date of filing as well as the prior period of time when [C.P.] was in the exclusive custody of plaintiff (January 12 - May 6, 2007); however[,] plaintiff may oppose the attorney fee application of the defendant and the court will consider the non-payment of support by defendant during the aforementioned time period as well as the plaintiff's payment of all day care expenses without defendant's contribution during that same time.
7. Based upon review of the fee application and opposition thereto, defendant's request for attorney's fees payable to her counsel shall be determined by separate order.
Defendant's attorney submitted a certification of attorney services seeking $8,485.26. In support of her counsel fee application, defendant argued that (1) she had incurred over $13,000 in counsel fees and costs due to "significant extra charges associated with having to defend against multiple bad faith 'unfounded' claims via DYFS and to the police"; (2) she had exhibited good faith in an effort to resolve the parties' dispute, in contrast to plaintiff's demonstrated "extreme bad faith during the course of [the] litigation"; and (3) there had been no previous award of counsel fees. Plaintiff submitted a certification opposing the motion, arguing that the court's perception that he only became concerned about custody after defendant sought support was not accurate. Plaintiff stated:
I do not believe that my concern [sic] my son and my compliance with all of the suggestions of DYFS [which plaintiff claimed included a suggestion that he file a complaint for custody when defendant was indicted for her alleged participation in a drug distribution ring] may be considered a factual basis for a finding of bad faith.
Additionally, plaintiff stated:
I never placed any discovery requests upon the defendant. On the contrary it was defendant who sought release of the DYFS records (again delaying the case; those records did nothing other than substantiate the defendant's drug abuse history and also revealed her very substantial mental health history). It was defendant who motioned the court to prevent introduction of her screening records for a second suicide hospitalization and inexplicably attached the very records sought to the motion to quash. It was also defendant through her attorney who sought to impose a child support obligation alleging that I made $5000 per year more than I do while denying the other dependent deduction in the calculation.
12. Defendant made regular accusations of fact that were simply not true and interfered with the progress of the case. She started in the late Spring when she alleged through counsel that she had been a client of my attorneys (false) in an attempt to deny me counsel. She later alleged that one of her witnesses was a former client of my attorney (true), but the alleged witness was a person whom I have never even met (this was yet another example of needless paperwork by her attorney). Defendant continued by adjourning the August hearing, again causing the case to linger on the court's docket when it might otherwise have been tried. In September defendant filed an application to quash my attorney's subpoena to compel her screening records (the entire case revolved around the defendant's drug usage and suicide attempts--I submit her motion in this regard was entirely without merit). From the first day of our court appearances the defendant's attorney went on and on about "domestic violence" allegedly committed by me against the defendant. However[,] the truth of the matter is simple-- defendant conceded in open court that she was not ever harmed by me and consensually withdrew the only complaint ever filed.
13. Virtually all of the delay in the case's preparation was occasioned by the unrelenting, non-stop litigation of the defendant. Her bill is entirely a product of the method in which her attorney chose to delay the case by adjourning the August hearing. The voluminous paperwork was a choice that the defendant chose to make, but it certainly was not precipitated by me. I was not the one who took the drugs that led to the neglect complaint by DYFS; I was not the one who participated in a drug ring. Nor was I the party who repeatedly ended up in the hospital for suicidal actions or ideations.
14. I have neither income nor assets from which I might satisfy the fee sought. The fee was entirely a product of the defendant's choosing since she could have sought uncompensated counsel from Legal Services but instead chose to litigate the matter with private counsel. I ask that the fee application be denied.
The trial court awarded $8,485.26 in counsel fees as requested. In its statement of reasons, the court found that plaintiff was financially capable of paying defendant's "substantially reduced attorney's fees," there had been no prior award of counsel fees, and there was "demonstrated litigiousness on the part of [p]laintiff, if not bad faith in his assertions."
The present appeal followed.
Plaintiff raises the following points for our consideration on appeal:
THE AWARD OF ATTORNEY FEES SHOULD BE REVERSED.
(i) THE TRIAL COURT FAILED TO APPLY THE APPLICABLE LAW.
(ii) EVEN IF THE PROPER TEST HAD BEEN APPLIED, THE COURT'S DECISION WAS AN ABUSE OF DISCRETION AND NOT SUPPORTED BY SUFFICIENT OR SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AS A WHOLE.
THE TRIAL COURT'S AWARD OF ATTORNEY FEES IS PREEMPTED BY THE LEGAL SERVICES CORPORATION ACT AND ITS REGULATIONS.
TRIAL COURT'S DECISION VIOLATES THE PUBLIC POLICY SET FORTH IN THE LEGAL SERVICES CORPORATION ACT AND ITS REGULATIONS.
THE TRIAL COURT'S REFUSAL TO AWARD CHILD SUPPORT AND CHILD CARE CREDIT TO PLAINTIFF VIOLATES APPLICABLE LAW.
Rule 5:3-5(c) authorizes an allowance of counsel fees in a family action. It provides:
Subject to the provisions of R. 4:42-9(b), (c) and (d), the court in its discretion may make an allowance both pendente lite and on final determination, to be paid by any party to the action, including if deemed to be just, any party successful in the action, on any claim for . . . custody[.]
Rule 4:42-9(a)(1) provides in pertinent part:
No fee for legal services shall be allowed in the taxed costs or otherwise except
(1) In a family action, a fee allowance both pendent lite and on final determination may be made pursuant to R. 5:3-5(c).
Although the parties were not married, the proceedings before the trial court qualified as a family-type action for which the court was authorized to award counsel fees. See D.H. v. D.K., 251 N.J. Super. 558, 563 (App. Div. 1991). Prior to making the award, the court, in its March 17 order, indicated that in determining whether counsel fees should be awarded, it would "consider the non-payment of support by defendant during the [January 12 to May 6, 2007] time period as well as the plaintiff's payment of all day care expenses without defendant's contribution during that same time." However, the court's statement of reasons did not include its consideration of these factors. Rather, the court's written statement of reasons focused upon the parties' ability to pay and plaintiff's litigiousness. Yet, even with its consideration of these factors, the court did not make specific reference to the facts upon which it relied in reaching its determination.
Rule 1:7-4(a) sets forth a trial court's obligation to make findings of facts and state conclusions of law "on every motion decided by a written order that is appealable as of right." As our Supreme Court explained:
[The] failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 . . . (App. Div. 1976). Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.
[Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]
A statement of a court's ultimate conclusion, as was done here, without specific reference to the facts upon which the conclusion was reached, is particularly problematic where the decision is discretionary, such as the award of counsel fees. Without findings relevant to the legal standards, the litigants and the reviewing court "can only speculate about the reasons" for the decision. Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986).
Based upon the record before us, it appears that plaintiff filed a motion for custody in May 2007, months before defendant sought child support in a motion she filed on August 28, 2007.
Hence, it is unclear to us how the court concluded that plaintiff filed his motion for custody only after defendant filed her motion seeking child support. Additionally, the court did not identify the specific litigation conduct of plaintiff that led the court to find that plaintiff demonstrated litigiousness. To the extent the court was referencing the matters before DYFS that defendant claimed was evidence of plaintiff's bad faith, the court did not set forth the particular facts from those proceedings that may have led it to conclude that plaintiff was litigious. Nor did the court explain how plaintiff, who was represented by Legal Services throughout the proceedings, was in a better position to pay defendant's counsel fees than defendant. Consequently, we are constrained to reverse the award of counsel fees and remand for further proceedings.
Plaintiff's remaining arguments related to whether the court may award counsel fees against a party represented by Legal Services and the court's refusal to award child support and child care credit to plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and reversed in part. We do not retain jurisdiction.