May 21, 2010
DAVID BRICKER, PLAINTIFF-RESPONDENT,
PAM KOBRIN, N/K/A PAM ERWIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FD-18-325-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges Lisa, Baxter and Alvarez.
Defendant Pam Erwin, formerly known as Pam Kobrin, appeals from an October 7, 2008 Family Part judgment requiring her to reimburse plaintiff David Bricker $18,000 in litigation and parenting time-related expenses, requiring her to satisfy the judgment through the county probation department as if it were a child support order, and further requiring her to pay the cost of her future supervised parenting time with the parties' child. Additionally, defendant appeals the portions of the order which make her weekly two hours of unsupervised parenting time contingent on her payment of, and continued participation in, psychotherapy. Lastly, defendant appeals the court's failure to order plaintiff to advance substantial counsel fees, while the custody and parenting time litigation was ongoing, to ensure that she was "properly" represented. For the reasons that follow, we remand for further proceedings clarifying the basis for the court's conclusion that defendant owed $7000 in parenting time supervision costs and for reconsideration of the level of income imputed to defendant. We reverse the portion of the order requiring the $18,000 to be paid through probation. Otherwise, we affirm.
The following facts and circumstances were developed during pretrial hearings and the trial of the matter. The parties, who met through an online dating service, began a romantic relationship in September 2004. Defendant moved into plaintiff's home in April 2005, and their son was born in July 2005. In September 2005 defendant moved out of plaintiff's home with the child.
Defendant filed for child support and joint legal custody of the parties' son soon after leaving plaintiff's home but dismissed the complaint on October 28, 2005. Shortly thereafter, plaintiff filed a complaint for custody. That complaint resulted in the issuance of the judgment which defendant now appeals.
As a result of his filing for custody, plaintiff was initially granted parenting time two afternoons per week and alternating weekends, transfers of the child being made at the Branchburg Police Department. This relatively uneventful start to the litigation did not portend the future. Over the course of the next three years, the proceedings included defendant's filing of two baseless complaints against plaintiff, several emergent proceedings necessitated by defendant's violations of court orders related to the child's medical care, and DNA testing resulting from defendant's belated claim that she was uncertain if plaintiff really was the biological father of the child.
In September 2005, the month prior to the initiation of the custody proceedings, defendant certified in her unrelated bankruptcy action that her monthly expenses were $2340.26. On the case information statement (CIS), dated July 2006, she later filed in the Family Part as part of her August 2006 motion for an increase in child support, defendant's enumerated monthly expenses totaled $6848. When she filed an updated CIS in January 2008, she projected her child's expenses to be $36,960 per year, or $3080 per month. The child was then two and one-half years old.
Defendant's employment history and income earning potential, as portrayed on her CISs and through her testimony, was also confusing. Although she was approximately forty years old when the custody trial concluded, has a college degree in psychology, is certified as a substitute teacher, and has worked at a preschool, she has not been employed full-time for years. Defendant works for her mother as a part-time bookkeeper performing data entry, worked part-time with a disabled woman for "[nine]-something" an hour while the litigation was pending, and was in the process of obtaining a paralegal certification. She said she had experience as an apprentice real estate appraiser, a model, and is a certified meeting and event planner. Defendant reported approximately $22,000 in income in 2005 on the only tax return filed with the trial court. In stark contrast, plaintiff, who operates his own business, earns an unspecified amount in excess of $500,000 annually.
Plaintiff was ordered pendente lite on December 9, 2005 to pay $500 per week in child support and temporary custody of the child was awarded to defendant. When defendant stated that she could not afford an attorney at that initial hearing, plaintiff volunteered to advance $3000 without prejudice. Defendant used $920 of plaintiff's advance to retain two separate attorneys. She owed one of the attorneys between $350 and $400 for additional work done in connection with her case. Of the remaining funds, defendant spent $835 on baby furniture, $500 on moving expenses and $400 on child care. We cannot discern from the record the extent to which these attorneys represented defendant or when their representation terminated.
The trial court told defendant at that hearing that until she submitted a CIS, no formal counsel fee application would be entertained. Defendant's first CIS was filed nine months later on August 2, 2006.
By August 2006, defendant was represented by yet another attorney, who applied on defendant's behalf for an increase in child support and counsel fees. The request was denied on September 1, 2006, because the trial was scheduled to start on September 11, 2006. In the trial court's view, both issues could be deferred until trial. It was unexpectedly delayed, however, and that attorney withdrew on November 3, 2006. Defendant continued pro se.
Trial finally commenced on February 9, 2007, although the proceedings were far from continuous. By April 20, 2007, in the midst of a trial day, defendant paid a small retainer to a new law firm. The trial court also decided that it was in everyone's best interest for defendant to be represented and ordered sua sponte that plaintiff pay an additional $8000 in fees so that defendant could retain counsel to represent her for the balance of the proceedings. Plaintiff was eventually ordered to pay the entire cost of two court-appointed experts, which came to $11,000, for bonding evaluations and individual psychological evaluations of the parties.
On September 13, 2007, that most recent attorney asked for leave to withdraw not only because defendant owed additional fees but because of disagreements over trial strategy. A closed hearing was subsequently conducted before a different judge, and the attorney was permitted to withdraw. The trial continued with defendant again representing herself.
On that same date, defendant testified that she had borrowed $18,000 from her family and that they were not willing to lend her additional funds. On November 14, 2007, however, defendant stated that her mother had "helped [her] out," by giving her between $10,000 and $15,000, in addition to $8000 advanced to her by a former boyfriend, all for counsel fees.
Defendant also testified that she "didn't realize that [her] mother was giving [her] money" and "thought [that] it was" hers. It is unclear whether this meant she spent the money on living expenses as opposed to paying her attorney.
On January 9, 2008, defendant informally asked again for an advance of counsel fees to be paid by plaintiff. The court instructed her to file a motion with a certification from an attorney willing to represent her. Defendant never filed such an application. She informally reiterated her request on January 14, 2008. The court again directed that she file a motion accompanied by an attorney's certification. On January 22, 2008, defendant filed a motion for attorney's fees accompanied by a letter from yet another attorney and a copy of a retainer agreement requiring a deposit of $50,000 before that individual would agree to represent defendant. Furthermore, the letter raised the issue of whether plaintiff was in fact the child's biological father. The court understandably viewed this assertion with a jaundiced eye, given that paternity had not been questioned for approximately a year. Because no certification of prospective counsel was supplied, only the letter and retainer agreement, the court ultimately denied defendant's motion to compel plaintiff to advance money for counsel fees.
Defendant experienced great difficulty in complying with court orders, including those relative to the child. As a result, the court, after awarding plaintiff pendente lite custody, required that defendant's parenting time be supervised by Catholic Charities. Plaintiff paid for those costs from the inception. The court initially estimated the Catholic Charities charge for supervision to be $10 per hour; defendant's brief references the current cost to be $50 per hour.
On October 7, 2008, the trial judge awarded plaintiff sole legal custody of the child, while defendant was awarded only two hours of weekly unsupervised parenting time, and four hours of supervised parenting time. Defendant's conduct, as detailed in the trial court's thirty-seven-page opinion, became increasingly contumacious and unpredictable over the years of litigation.
The judge found, as a result of the twelve separate court events, including trial days, that defendant was "not fit to have legal or physical custody of [the child]" and was not a credible witness. In support of that conclusion, among other things, the court referenced defendant's alteration of the child's medical records using handwritten notations "intended to fool the recipient into believing they were written by a medical professional." At one point during the trial, defendant staged a demonstration during which she carried a poster bearing the child's picture while she stood outside the courthouse. The poster asked if anyone was willing to provide her with pro bono legal services to protect her "disabled silent child."
The court further entered a judgment for $18,000 to be paid by defendant to plaintiff. It consisted of one-half of advanced counsel fees, or $5500; one-half of the expert fees, or $5500; plus all of the advanced parenting time supervision costs charged by Catholic Charities, or $7000. The judge did not explain how she arrived at the $7000 figure. The court made the $18,000 judgment payable through probation at the rate of $50 per week. By way of context, plaintiff claims that his counsel fees exceeded $130,000; defendant claims plaintiff expended $202,000 on private investigators who, among other things, filmed parenting transfers, which became highly acrimonious. Additionally, the trial court ordered defendant to pay $80 weekly as child support, based on imputed income of $45,000 per year.
Defendant's points on appeal are as follows:
POINT ONE: THE TRIAL COURT ERRED IN REFUSING TO LEVEL THE PLAYING FIELD BY ENSURING THAT DEFENDANT HAD ACCESS TO ENOUGH MONEY TO OBTAIN LEGAL ASSISTANCE TO PROPERLY CONDUCT THE LITIGATION
A. The Trial Court Failed to Ensure that Defendant had an Equal Ability to be Able to Retain an Experienced Attorney in Custody Litigation
B. The Trial Court Refused to Give Defendant Counsel Fees for a Motion Requesting Legal Fees not only for the Motion But "For Future Matrimonial Litigation"
C. The Trial Court Abated some of the Prejudice to Defendant on 4/20/07 But it Turned Out to be Too Little and Too Late
D. The Court had a Duty to Protect Defendant's Due Process Rights Even at the End to Ensure That Defendant had a Fair Playing Field
POINT TWO: THE COURT ABUSED ITS DISCRETION IN ORDERING THE DEFENDANT TO REIMBURSE THE PLAINTIFF FOR ATTORNEY FEES, EXPERT FEES, AND ALL OF THE FEES PAID TO CATHOLIC CHARITIES
A. The Court Erred in Requiring Defendant to Repay the Plaintiff $5,500 or 50% of the Legal Fees Advanced by Plaintiff Making his Total Contribution to Legal Fees Only $5,500
B. The Trial Court Should Not Have Apportioned the Expert Fees Equally Between the Parties
C. Assessing 100% of the cost of Catholic Charities to Defendant was so Punitive As to Constitute an Abuse of Discretion
POINT THREE: THE COURT ERRONEOUSLY REQUIRED THE DEFENDANT TO BEAR THE ENTIRE COST OF SUPERVISED VISITS AND THERAPY GOING FORWARD
POINT FOUR: THE TRIAL COURT DID NOT HAVE THE AUTHORITY TO ORDER REPAYMENT OF COUNSEL FEES, EXPERT FEES, AND SUPERVISED VISITATION FEES AS CHILD SUPPORT ARREARS
Defendant is not requesting reversal of the custody determination. Thus, even if we agreed that in some fashion her due process rights were violated because insufficient counsel fees were awarded during the pendency of the litigation, it is unclear what redress she seeks. Defendant does not specify what remedy would right this alleged wrong. No extended discussion of this issue is warranted given that the point is presented, essentially, as being purely academic. Therefore we make only the following comments.
Despite defendant's extended discussion of the dramatic contrast between plaintiff's ability to pay fees and that of defendant, the public policy behind the award of counsel fees in matrimonial cases, and the relevant rules and statutes, no legal argument is presented which should have compelled the court to do other than it did in this unique situation. The parties were not spouses. They lived together for just a few months. Defendant was given between $18,000 to $23,000 for legal fees by her mother and a former boyfriend. Months into the lengthy litigation, custody of the child was transferred to plaintiff. Defendant is an educated person inexplicably working only part-time during at least the three years this matter was pending. We are simply unconvinced by defendant's arguments that the failure of the court to order additional fees resulted in a manifest injustice.
Awards of counsel fees are discretionary and are reviewed only for "a clear abuse of discretion." City of Englewood v. Exxon Mobile Corp., 406 N.J. Super. 110, 123 (App. Div.), certif. denied, 199 N.J. 515 (2009). Certainly the factors to be considered in making counsel fee awards in matrimonial matters are embodied in both rule and statute. See N.J.S.A. 2A:34-23; R. 5:3-5(c). The court's analysis of those factors in this case was not a clearly unreasonable exercise of discretion given that defendant was underemployed and had financial resources. Defendant was told early on that in order to be awarded counsel fees she would have to file a CIS, yet she neglected to do so until months later. She was told to file a formal motion with an attorney's certification attached; she failed to do so at any point in time. Between gifts made to her and plaintiff's advances, defendant had between $29,000 to $34,000 in funds, not counting the $18,000 she claimed she borrowed from family. There was no abuse of discretion here.*fn1
Defendant also claims the court abused its discretion by ordering defendant to reimburse plaintiff for half of the legal fees he advanced, half of the expert fees he advanced and all of the cost of supervised parenting time at Catholic Charities; in other words, the $18,000 judgment. She further suggests that if she had been represented, she might not have violated the court's order restraining her from seeking medical care for her child. This argument is indeed sheer speculation.
The court grounded its decision as to fees and supervised visitation on the factors enumerated in Rule 5:3-5(c). Williams v. Williams, 59 N.J. 229, 233 (1971). Those factors include:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
After her first CIS, defendant did not provide any additional financial information until January 2008. The expenses in the CIS that she filed in August 2006 were grossly inflated when compared to her bankruptcy filing; $6848 versus $2340.26. She was not fully employed. Defendant claimed an income of approximately $22,000 in 2005, and either did not file additional returns since that year, or if so, did not provide copies to the court.
Defendant's legal positions, the court noted, "have frequently been rooted in bad faith." Plaintiff, who is self-employed, was required to make numerous court appearances and make very substantial expenditures of legal and related costs just to obtain defendant's compliance with court orders.
The family court has broad discretion, to be exercised within the confines of equitable principles, to award not only counsel fees, but expert fees as well. N.J.S.A. 2A:34-23; R. 5:3-5(c); Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 157-58 (App. Div. 2002). As the court reiterated in Kingsdorf, however, "'he who seeks equity must do equity.'" Kingsdorf, supra, 351 N.J. Super. at 157 (quoting Morsemere Fed. Sav. & Loan Ass'n v. Nicolaou, 206 N.J. Super. 637, 645 (App. Div. 1986)).
In our view, the court's decision to compel defendant to reimburse plaintiff for half the fees was an appropriate exercise of discretion after analysis of the nine factors as applied to this case. See R. 5:3-5(c). Although plaintiff's financial resources and income were indisputably far greater than defendant's, there is more to the equation than consideration of his earnings alone. Defendant's employment picture and financial resources were shifting sands. Her positions were not only often unreasonable, in the view of the court they posed the potential for harm to her child. They generated several unnecessary court appearances. Additionally, she had resources available to her and was able to raise thousands of dollars, between $18,000 and $23,000, on her own despite her allegedly impecunious state. We therefore see no impropriety in compelling her to reimburse plaintiff half of the costs. No abuse of discretion occurred.
Similarly, Rule 5:3-7(a) provides that when a party violates an order pertaining to parenting time, economic sanctions may be imposed. These sanctions may include costs associated with the parent's failure to comply with a court order. Ibid.
In this case, to require defendant to pay for the costs of the supervision of her parenting time seems eminently reasonable; not even a sanction. There is nothing in the record which should relieve defendant of that obligation. It was defendant's conduct which led to the supervision. In any event, plaintiff and defendant do not have a relationship which legally obligates him to subsidize the cost of past supervised parenting time. The court's decision appears to be an unassailable exercise of her discretion and we see no reason to disturb it.
The record is not clear, however, as to the basis for the court's award of $7000 in reimbursement to plaintiff for the cost of supervision by Catholic Charities. We cannot assess the merits of the order in the absence of any information as to how the figure was calculated and remand for that purpose.
Defendant also contends that because of the disproportionate income the parties earn, the court erred by requiring her to pay for future supervised visits with the child and for her ongoing therapy. To reiterate, the court justifiably questioned why defendant was underemployed. Despite claiming to have very limited resources, she was given between $18,000 and $23,000 to assist with litigation expenses by her mother and a friend. Defendant's failure to supply a credible CIS, or tax returns other than for 2005, made it self-evident that defendant should be responsible.
We do not believe, however, that the court's imputation of $45,000 per year in salary as a teacher to defendant was warranted. The court relied upon the New Jersey Wage Compendium, published by the New Jersey Department of Labor, in determining the average income for a teacher. But defendant had only worked as a substitute teacher in Morris County on a per diem basis, and had worked as a preschool teacher many years prior. If defendant is not a full-time teacher, and is not certified to teach full-time, her imputed income should not be the $45,000 chosen. We do not question the fairness of the court's decision to impute income to defendant; that decision is unassailable. Defendant cannot avoid her financial responsibilities by either failing to declare her actual income or by failing to obtain a full-time job. Caplan v. Caplan, 182 N.J. 250, 268 (2005). Nonetheless, an inappropriate category may have been chosen.
We do agree with defendant that the court erred in making the repayment of counsel fees, expert fees, and supervised parenting time fees payable through a probation account as child support arrears. A child support order is defined as a judgment for the benefit of a child "which provides monetary support, . . . and . . . may include other related costs and fees, . . . [and] attorney's fees." N.J.S.A. 2A:17-56.52. A child support order is "a civil money judgment." N.J.S.A. 2A:17-56.23a.
The "New Jersey Child Support Program Improvement Act," N.J.S.A. 2A:17-56.7a to -56.25, establishes severe penalties for failure to pay child support. See e.g. N.J.S.A. 2A:17-56.20. Generally, a court order for child support is enforced via income withholding, N.J.S.A. 2A:17-56.8, and is collected through the probation department. N.J.S.A. 2A:17-56.13. A professional or motor vehicle license may be revoked for failure to pay child support. N.J.S.A. 2A:17-56.41. The purpose and effect of the statute is curative, and is meant to be broadly construed. See Harris v. Harris, 235 N.J. Super. 434, 443 (Ch. Div. 1989), rev'd in part on other grounds, Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 11 (App. Div. 1991), superseded by statute, Mahoney v. Pennell, 285 N.J. Super. 638, 642-43 (App. Div. 1995).
That broad construction, however, does not include this judgment, as the included amounts in no way contributed towards the support of the child. In this case, the attorney's fees and costs were all related to custody and parenting time determinations, not to child support. The judgment cannot be made payable through probation. Hence, we reverse that portion of the court's order.
In sum, we affirm the order requiring defendant to reimburse plaintiff for half of the attorney fees and expert fees which he advanced, and all of the expenses associated with supervised parenting time. We reverse the aspect of the order which made the payments payable through probation as child support arrears. We remand for additional fact-finding as to the $7000 cost of supervised parenting time and for the court to reconsider the level of income to be imputed to defendant. Although we agree that income should be imputed, a more appropriate category of income should be selected.
Affirmed in part, reversed in part, and remanded in part.