On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1622-07.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Ashrafi.
Plaintiff William J. Parish, Jr. appeals from portions of a November 21, 2008 post-judgment Family Part order. Plaintiff filed a motion to enforce litigant's rights (ELR) to compel defendant Hannah Parish to comply with court ordered parenting time. The judge did not review the merits of plaintiff's application, concluding the motion was moot. Despite that conclusion, the court directed the parties to present their disputes to the parenting coordinator designated in the Dual Final Judgment of Divorce (FJOD). Further, the judge conditioned the filing of any future motions, including enforcement of parenting time requests, on the requirement that the parties and their attorneys first conduct a four-way settlement conference to resolve the disputes and certify their efforts proved unsuccessful. Also, the court ordered plaintiff to pay $500 toward defendant's counsel fees and costs.
On appeal, plaintiff argues the motion judge erred when she: (1) imposed preconditions to filing future motions, including enforcement applications; (2) dismissed the parenting time issues as moot and improperly deferred resolution to the parenting coordinator; (3) failed to make findings of fact and conclusions of law as to why the remaining aspects of plaintiff's motion were denied; and (4) denied plaintiff's request for counsel fees and awarded counsel fees to defendant. Plaintiff argues the identified provisions of the order must be reversed, and the matter reassigned on remand.
Following our review of the arguments presented on appeal, in light of the record and the applicable law, we conclude the motion judge erred in mandating a restriction on the parties' exercise of the right to file motions in the absence of a specific finding of the need to control frivolous or vexatious litigation and by not substantively addressing plaintiff's motion, as the issues presented were not moot and ripe for disposition. Finally, because the counsel fee award was based on a determination that we now reverse, it, too, must be reversed. Accordingly, we reverse paragraphs 3, 6, 7 and 8 of the November 21, 2008 order.
We set forth a brief history of the prior litigation and the facts leading up to plaintiff's ELR motion. The parties married on July 3, 1998. Plaintiff and defendant have three children. The parties separated in April 2007 when defendant filed a complaint for a temporary restraining order (TRO), and she and the three children vacated the former marital home. On June 20, 2007, plaintiff filed a complaint for divorce. Thirteen months later, on July 24, 2008, the parties appeared before a different Family Part judge and entered the FJOD, which incorporated the parties' Marital Settlement Agreement (MSA) resolving property distribution, alimony, child custody and support.
Certain provisions of the MSA are relevant to the matter under review. First, although no final restraining orders were filed, each of the parties had obtained a TRO against the other, pursuant to the New Jersey Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Therefore, paragraph 9.6(A) of the MSA governed communication between plaintiff and defendant as follows:
The parties are prohibited from having any oral, personal or other form of contact or communication with the other except that they may communicate with each other specifically regarding the children's well being and parenting issues. Any such communication between Husband and Wife with regard [to] the children shall take place via email, with a 24 hour response rule, except in the event of an emergency, and any and all such communications shall be non-harassing. The amount of emails during a 24 hour period should be reasonable. The acceptable communications set forth above shall not include communications regarding finances, even if the finances relate to the children.
Second, detailed parenting time provisions were contained in various paragraphs of Article 3. In paragraph 3.1, the parties agreed to share joint legal custody of the children with defendant designated the parent of primary residence and plaintiff designated the parent of alternate residence. Paragraph 3.4 contained the parties' agreement to "continue with the current parent coordinator," Dr. Amie Wolf-Mehlman, who had been appointed "to assist the parties in resolving disputes as to custody, parenting time or any related issues affecting the parties' children," by the February 7, 2008 pendente lite order.
Third, the parties agreed, in paragraph 3.5, to review the procedures for telephonic communication between the parties and the children with the parenting coordinator. Pending that review, the provisions of an October 1, 2007 consent order were to be followed.
Less than one month after entry of the FJOD, plaintiff filed a domestic violence complaint wherein he alleged defendant called and threatened to kill him. The court entered a TRO, which incorporated the parenting time provisions in the FJOD. Thereafter, defendant denied plaintiff telephone contact with the children, claiming that any telephone calls could be a violation of the TRO. Counsels' efforts to clarify this issue were unsuccessful.
As a consequence, plaintiff filed his first and only post-judgment motion to enforce the terms of the FJOD. Plaintiff sought relief, which included allowing him to engage in telephonic communication with the children, fixing parenting time from September 2008 through June 2009, providing a copy of a doctor's report issued following an evaluation of the parties' child, allegedly conducted in violation of the joint custody order, and awarding counsel fees and costs. Defendant responded and filed a cross-motion to deny plaintiff's motion entirely, refer the parenting issues to the parenting coordinator, require plaintiff to pay sanctions for misrepresenting the circumstances regarding their child's evaluation, release her personalty, and award counsel fees.
Prior to the motion's return date, plaintiff's domestic violence complaint was dismissed, and the temporary restraints were dissolved. The parties met with the parenting coordinator, each submitting his or her perspective on the various issues for review and resolution. Prior to oral argument on the motion and cross-motion, the parties received the parenting coordinator's recommendations.
On November 21, 2008, the court entered the order discussed above and this appeal ensued. The motion judge submitted a supplemental statement of reasons, pursuant to Rule 2:5-1(b), expanding her findings and conclusions.
For context, these are the provisions of the order challenged by plaintiff on appeal:
3. The issues regarding the parenting time plan are MOOT by virtue of the fact that the litigation seeking a [TRO] was dismissed.
6. Prior to filing any future motions in this matter, the parties shall engage in a timely four-way conference with counsel, in an attempt to resolve the issues at hand. The party filing the motion must certify that a four-way conference occurred and that the parties were unsuccessful resolving the issues. Failure to engage in a four-way conference will result in an automatic dismissal of the motion.
7. On or before December 31, 2008, plaintiff shall pay $500 towards defendant's attorney's fees associated with this motion, payable through counsel.
8. In all other respects, plaintiff's motion and defendant's cross[-]motion are DENIED.
The standards governing our review are well-settled. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Consequently, we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion. Cesare, supra, 154 N.J. at 412 (internal quotations omitted).
We are not bound by "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995). However, recognizing the special expertise of judges hearing matters in the Family Part, we accept the trial judge's conclusion when evidentially supported. Cesare, supra, 154 N.J. at 412. We reverse only to "ensure that there is not a denial of justice" because the family court's "conclusions are  'clearly mistaken' or 'wide of the mark.'" New Jersey Div. of Youth and Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008).
Plaintiff argues the motion judge misapplied her discretion by denying review of his enforcement motion and by imposing preconditions to filing future motions. He maintains since the judge specifically found his application neither frivolous nor harassing, the imposition of restraints violated due process protections.
Plaintiff correctly states the Due Process Clause of the Fourteenth Amendment guarantees citizens access to courts to present claims of wrongdoing. U.S. Const. amend. XIV, § 1; Wolff v. McDonnell, 418 U.S. 539, 578-79, 94 S.Ct. 2963, 2985- 86, 41 L.Ed. 2d 935, 963-64 (1974). This court concluded that "the complete denial of the filing of a claim without judicial review of its merits would violate the constitutional right to access of the courts." Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 390 (App. Div. 2000) (citing U.S. Const. amend. XIV, § 1). Yet, courts have the inherent authority, if not the obligation, to control the filing of frivolous motions and to curtail "harassing and vexatious litigation." Id. at 387, 388, 391; see also N.J.S.A. 2A:15-59.1(b)(1) (providing a judge may find a frivolous complaint, counterclaim, cross-claim or defense when said pleading is "commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury"); R. 1:4-8(a)(1) (stating the signature of a party or counsel on a pleading certifies the document is not presented for an "improper purpose, such as to harass or to cause unnecessary delay").
In Rosenblum, supra, we examined whether a pro se litigant could be enjoined from filing successive complaints after the court had previously concluded the claimed relief was frivolous. 333 N.J. Super. at 387. We held that in certain circumstances, due process is not impaired by enjoining litigation. Id. at 391. "[W]here a pattern of frivolous litigation can be demonstrated, the Assignment Judge can prevent the complaint from being filed[,]" when other available sanctions, such as monetary penalties, proved unsuccessful as a deterrent. Id. at 391-92.
The restraint here barred plaintiff from seeking enforcement of the recently entered judgment unless he first affirmatively attempted resolution of the dispute. Although this is a more limited restraint than the one reviewed in Rosenblum, it, nevertheless, burdened the parties' access to judicial consideration of post-judgment enforcement or modification motions and requires review of its due process implications.
The issue of whether a court may restrict post-judgment motion filings in family matters has been the subject of limited review. In D'Amore v. D'Amore, 186 N.J. Super. 525 (App. Div. 1982), we reversed a post-judgment order that prohibited the plaintiff "from filing any further harassing motions against defendant in the future" because it was "too broad and too ambiguous." Id. at 529, 531. Recognizing the court's power to enjoin prospective harassing litigation, we cautioned that any exercise of the power must not impinge on "the fundamental right of the public to access  the courts in order to secure adjudication of claims on their merits." Id. at 530.
Before any prior restraint on access can be considered, the use of litigation to harass must be first "objectively determinable." Ibid. Thereafter, any restraint imposed must apply to the "specifically identified claims[,] which . . . have been determined to fall within one of the recognized categories of objective harassment[,]" making "[a] nonspecific and nondiscrete injunction against prospective litigation . . . patently [u]nsustainable." Ibid.
A particularly egregious example of harassing post-judgment family litigation is found in Kozak v. Kozak, 280 N.J. Super. 272, 274 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997), where the plaintiff filed numerous motions requesting the judge's recusal and submission to a psychiatric evaluation and, secondarily, questioning the defendant's fitness as the custodial parent. The Family Part Presiding Judge read every motion filed by the plaintiff and found the request for recusal repetitive, as the same relief had been sought and denied on two prior occasions. Additionally, the court determined the requests were unsupported by "any recent or relevant allegations." Id. at 275. Finding the plaintiff's motions "repetitive, frivolous and unsubstantiated[,]" the judge concluded the motions were designed to control and intimidate the defendant, wear her down financially, and pressure the court to reach a desired result. Id. at 276.
Here, the motion judge did not impose an outright bar to seek relief but prohibited future filings, regardless of the issues raised, unless demonstrated out-of-court attempts to resolve the disputes proved unsuccessful. Specifically, new motions on any issue, including the enforcement of litigant's rights for continuing violations of the court's orders, would not be considered by the court unless the parties first "engage[d] in a timely four-way conference with counsel, in an attempt to resolve the issues at hand[,]" and the moving party certified "a four-way conference occurred and that the parties were unsuccessful [in] resolving the issues." As noted, the failure to engage in this four-way discourse was "automatic" grounds to dismiss the motion.
These restrictions were imposed without limitation, despite the motion judge's complete rejection of defendant's contention that "plaintiff is determined to engage in scorched-earth post-judgment litigation tactics," and her express acknowledgment "that [n]either party [w]as engaging in frivolous and harassing litigation[.]" Instead, the exclusive rationale justifying the restraint was an unexplained observation that the divorce proceedings had been "extremely contentious," the discovery process "arduous," and the parties "did not communicate effectively on the issues." From this alone, the court suggested "the danger" of possible frivolous litigation was "certainly present" and imposed the restraint.
Recognizing the importance of effectively resolving parenting time disputes, the judge stated:
"Judicial time and energies are scarce societal resources, especially in family courts." Kozak v. Kozak, 280 N.J. Super. 272, 278 (Ch. Div. 1994). For that reason, courts must attempt to balance the right of access to the courts against the need to avoid the misuse of judicial process. Moreover, although parenting time and/or custody issues often do not raise issues justifying emergent and immediate relief, they are important issues in any family. Given the volume of motions[,] particularly in the [F]amily [P]art, these issues may not be reached for at least thirty days. Every ...