August 18, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1037-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 3, 2010
Before Judges Rodríguez and Yannotti.
L.O. (mother) appeals from the November 7, 2008 post-divorce-judgment order denying her motion. We affirm.
Mother and R.O. (father) were married in 1995. One child was born of the marriage, K.O., a girl now age fourteen. The parties were divorced pursuant to a Pennsylvania decree. They were granted shared legal custody with mother having primary physical custody.
K.O. began displaying anger towards her mother around the time that she became aware of the parties' custody dispute. Consequently, mother placed K.O. in counseling. However, K.O. has been treated by six therapists due to the parties' inability to reconcile their differences.
On December 7, 2005, New Jersey obtained jurisdiction over the parties' post-judgment dispute regarding custody. Mother moved to compel father to contribute towards K.O.'s counseling. Mother alleged that father was discussing the litigation with K.O., which was the cause of her behavior. Father disputed these allegations.
Judge Frederick J. Schuck heard oral argument on the motion. He ordered that father be responsible for 2/3 of future therapy costs. Father's counsel represented that father's annual income was $110,000. Subsequently, the judge appointed Dr. Ronald S. Gruen to provide therapy and act as the court's expert to render therapeutic services to K.O. Dr. Gruen was also granted permission to communicate with the judge.
Father moved for the court to order that K.O. be permitted to play softball and to allow father to coach K.O. in little league. By order dated March 2, 2007, Judge Richard Wells granted father's motion.
Mother then moved for an order requiring an expert to conduct a parental alienation evaluation of K.O. She contended that father was responsible for utilizing "programming tactics" that influenced K.O. to distance herself emotionally from mother.
Father cross-moved to request that: Dr. Gruen's court ordered services be terminated; to hold mother in contempt for denying parenting time; modification of custody; K.O. remain in her school district; and K.O. be permitted to carry a cell phone supplied by father.
Judge Wells conducted a hearing. During the hearing, father informed the judge that he was currently unemployed because he had been laid off. Consequently, the judge held that the parties would split the costs equally for the evaluation. The parties again appeared before Judge Wells, who ordered that the parties shall undergo an evaluation with Dr. Gregory Joseph to assess parental alienation. The judge terminated father's obligation to contribute towards Dr. Gruen's counseling fees due to the appointment of a new therapist.
Dr. Joseph's report indicated that both parties' conduct contributed to K.O.'s anger towards mother. Dr. Joseph recommended that the judge mandate the parties and K.O. participate in ongoing family counseling and K.O. should be permitted to speak with either parent while staying with the other parent. Reasonable restrictions should be placed on her contact with father and step-mother during certain time periods and/or for a specified amount of time. Dr. Joseph further recommended that K.O. should be provided privacy to talk with either parent.
Father then moved to enforce the March 2, 2007 order and allow K.O. to participate in softball in 2008. Judge Wells so ordered and awarded attorney's fees in the amount of $1,200 to father. Judge Wells also entered a protective order pertaining to Dr. Joseph's report. The judge permitted a copy of the report to be provided to counsel and Dr. Gruen for review.
Mother then moved to:
1. Require father to participate in counseling and/or therapy and to contribute an appropriate share of the associated costs.
2. Dr. Gruen to opine to whether he believed that he could appropriately serve as counselor for father and mother and if not, who he would recommend to serve in the capacity; whether a parenting coordinator would be appropriate in the matter and who he would recommend; whether father's parenting time should commence at 8:30 a.m. or at a later time due to father's work schedule on days that K.O. has off from school; what measures and rules should be adopted regarding K.O.'s cell phone; and that he prepare a comprehensive report that includes all issues listed above and outline K.O.'s progress, challenges and any other issues he deems appropriate for the court;
3. The court hold a conference with counsel for the parties to discuss Dr. Gruen's opinions and reports to determine how to proceed after Dr. Gruen provides his findings to the court;
4. Father pay an appropriate share (2/3 or eighty percent) of Dr. Gruen's counseling fees for K.O., both prospective and retroactive pursuant to R. 4:50-1 to the October 24, 2007 order;
5. Sanction father if he fails to comply with the order(s) and/or for his failure to comply on a going forward basis with any provision of prior order(s);
6. For attorney's fees mother has incurred in filing of the application;
7. For such other relief as the court deems equitable and just.
Judge Gwendolyn Blue heard oral argument. After reviewing the parties' submissions, the judge entered the following order:
1. Mother's motion to compel father to participate in family counseling/therapy is hereby granted.
a. All parties shall attend family counseling sessions with Elizabeth Lipshutz.
i. All parties shall attend these sessions and both parties shall be restrained from unilaterally terminating this therapist.
ii. Ms. Lipshutz shall also act as the parent coordinator for this matter.
iii. Both father and mother shall contact Ms. Lipshutz within 48 hours from the date of this order.
iv. Both father and mother will split the costs of this family therapy 50/50.
b. Dr. Gruen may remain as the therapist for the minor child, K.O., at mother's choice and cost.
2. Mother's motion to compel Dr. Gruen to opine as to specific issues listed in the motion is hereby DENIED.
3. Both parties' Motions for sanctions and attorney's fees are hereby DENIED.
4. During the year 2008, the following schedule shall be followed by the parties:
a. Father shall have visitation with K.O. from December 24, 2008 at 12:00 p.m. until December 25, 2008 at 8:00 p.m.
b. Father shall receive a make-up overnight visitation by agreement of the parties.
5. K.O.'s cell phone shall remain turned on at all times.
a. Father shall be allowed phone contact with K.O. once each morning and once each night.
Mother appealed this November 7, 2008 order and moved to supplement the record, for a remand and to file motion papers under seal. We granted mother's request to file the motion papers under seal but denied the other requests. R.O. v. L.O., No. M-6406-08 (App. Div. July 31, 2009).
While the appeal was pending, Lipshutz terminated her position as the court appointed therapist. Judge Blue then appointed Dr. Joellyn L. Ross as the therapist and Mary Kay Trace, Esq. as the Parent Coordinator.
Father moved to terminate his obligation to mother due to his loss of employment. Judge Blue dismissed this motion without prejudice.
Mother moved to strike father's appellate brief or in the alternative, the portions of father's brief that refer to Dr. Joseph's report. We granted mother's motion to strike those portions of father's brief that refer to matters that were not part of the record below. R.O. v. L.O., No. M-0169-09 (App. Div. Sept. 29, 2009). However, mother's motion to strike father's references to Dr. Joseph's report was denied on the condition that father file a redacted brief.
Father moved for a temporary remand for reconsideration of a motion to modify child support. We granted father's motion. R.O. v. L.O., No. M-7237-08 (App. Div. Sept. 8, 2009).
On remand, Judge Blue modified father's support obligation to take into account father's other dependant deduction and elimination of daycare expenses. The judge denied further modifications.
On appeal, mother contends that Judge Wells "erred in denying the request that [father] pay an appropriate share of Dr. Gruen's counseling fees." We disagree.
Rule 4:50-1 provides that relief from a judgment or order may be obtained for the following reasons:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
Mother contends that the previous court orders pertaining to apportionment of the costs of therapy should be reconsidered due to father's misrepresentations. Mother therefore has the burden to demonstrate that father committed fraud. R. 4:50-1.
The elements of common law fraud are: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the [other person] of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997).
Here, Judge Blue addressed the issue pertaining to Dr. Gruen's fees. During the November 7, 2008 hearing, the judge held that the costs for K.O.'s therapy would be split 50/50. The judge found that it would be in the "best interest" of K.O. to have the parties share the costs. Regarding Judge Wells' holding that mother would bear the entire costs for Dr. Gruen's fees, Judge Blue found that his decision was predicated on the parties employing the services of Dr. Joseph to conduct a parental alienation evaluation. Thus, the judge denied mother's motion for reconsideration of the October 24, 2007 order because Dr. Gruen was no longer being utilized as the court appointed therapist. Thereafter, during the February 18, 2009 hearing the judge denied mother's motion on the grounds that the conduct of both parties contributed to the child requiring therapy.
This court's review of motions pursuant to Rule 4:50-1 is well settled. A motion for relief from judgment based on any one of the six specified grounds should be granted sparingly and is addressed to the sound discretion of the trial court, whose determination will not disturbed unless it results from a clear abuse of discretion. Morristown Housing Auth. v. Little, 135 N.J. 274, 283-84 (1994).
Further, we accord deference to Family Part judges' fact finding due to their special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
There is sufficient, credible evidence in the record to support Judge Blue's findings. The transcript of the October 24, 2007 hearing establishes that father's obligation to contribute for Dr. Gruen's fees was terminated by the appointment of Dr. Joseph. Mother's decision to continue utilizing Dr. Gruen as a therapist did not contravene the October 24, 2007 order, but was at her own expense.
Further, mother's reliance on father's 2006 tax return is misplaced. Judge Schuck's decision to "split" the costs was not only influenced by father's alleged annual salary, but also based on mother's choice not to work despite having the same academic degrees as father.
Finally, the judge's decision to deny mother's motion for reconsideration was based on a finding that both parties contributed to K.O.'s behavioral problems and the parties should therefore equally share costs. We find no abuse of discretion.
Mother also contends that the judge "erred in determining that K.O. is permitted to keep her cell phone on at all times." Mother argues that the record contains evidence of abuse of K.O.'s cell phone by father. This contention lacks merit.
The judge held that the court would follow the recommendations of Dr. Joseph's report regarding cell phone usage. The cell phone would remain on at all times and father was permitted to contact K.O. once in the morning and once at night. The judge further held that there would not be a limit on the length of the phone calls.
There is ample evidence in the record to support Judge Blue's decision. We note that a plenary hearing is necessary in circumstances where there is a genuine and substantial factual dispute regarding the welfare of the child. Hand v. Hand, 391 N.J. Super. 102, 105-06 (App. Div. 2007). However, whether the cell phone would continue to cause K.O.'s relationship with mother to deteriorate was not an issue of fact. Instead, it was within the judge's "expertise" to determine whether the request would be beneficial to the existing custody situation. The judge's exercise of her discretion was supported by Dr. Joseph's recommendation that K.O. be permitted to speak to either parent while staying with the other parent.
Mother also contends that Judge Blue "erred in failing to establish sanctions for the plaintiff should he fail to comply with orders of the court." We disagree.
We review a trial court's imposition of sanctions pursuant to the abuse of discretion standard. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001). Although the court sparsely addressed the issue of sanctions, the record indicates that such steps were unnecessary in light of the judge appointing a new therapist and including in the order that neither party can unilaterally terminate the services. If father does not comply with the November 7, 2008 order or previous orders pertaining to exchange of financial information, mother can seek relief pursuant to Rule 1:10-2 or Rule 1:10-3. Such a step would be necessary regardless of the language included in the order. Thus, the judge did not abuse her discretion by failing to include "prospective" sanctions in the order.
Finally, mother contends that Judge Blue "erred in failing to award [her] counsel fees." We disagree.
Rule 4:42-9(a)(1) authorizes the award of attorney's fees in a family action. The court must consider the following factors:
(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; (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 the award.
The failure to consider each factor is not fatal to an attorney's fee award. See Mani v. Mani, 183 N.J. 70, 94-95 (2005).
Here, the judge found that the issues presented to the court were brought in good faith. The judge denied both parties' motions.
An award of attorney's fees in matrimonial matters rests in the discretion of the court. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The exercise of this discretion should not be disturbed on appeal absent a showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).
Although the judge did not address the factors pertaining to the parties' financial abilities, the judge's finding that the parties filed their respective motions in good faith is supported by the record. The abilities of the parties to bear their own attorney's fees was apparent in light of the parties' extensive litigation. Further, the fact that the parties disagree over who should serve as therapist does not amount to "bad faith." We conclude that the judge did not abuse her discretion by refusing to award mother counsel fees.
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