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Bricker v. Kobrin

May 21, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FD-18-325-06.

Per curiam.


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 ...

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