December 8, 2010
KAREN M. WELCH, PLAINTIFF-APPELLANT,
WILLIAM B. WELCH, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1006-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2010
Before Judges Cuff, Simonelli, and Fasciale.
In this matrimonial matter, plaintiff Karen Welch appeals from the October 22, 2009 Family Part order requiring her to pay $25,318.34 for counsel fees incurred by defendant William Welch. The order stems from plaintiff's non-appearance on the first day of a plenary hearing. We affirm in part, reverse in part, and remand for further proceedings.
We will not recite this matter's long and tortured history. We limit our review to the facts leading up to the entry of the October 22, 2009 order.
The parties have one son, born in 1992. They have joint legal custody of their son, with plaintiff having residential custody. The dispute between the parties concerned defendant's attempt to change residential custody. A motion and cross-motion filed in 2007 resulted in the entry of an order on January 7, 2008, appointing a psychologist to conduct therapeutic reunification therapy for defendant and his son, among other things.
Defendant claimed that plaintiff was interfering with the reunification process, as evidenced, in part, by certain emails plaintiff sent to the Boy Scouts demanding that they remove defendant's name from its email list. Plaintiff claimed that the emails were "doctored" and she did not request the removal of defendant's name from the email list. As a result of this dispute, the trial judge ordered the parties to appear for a plenary hearing on January 26, 27, 28 and 30, 2009, setting aside a few hours each day for the hearing.
On January 23, 2009, plaintiff notified the judge that she would not appear, claiming she feared losing her job and felt harassed by defendant. As a result of that non-appearance, on defendant's application, the judge entered an order requiring plaintiff to show cause why she "should not be held in contempt and be subject to further sanctions for her failure to attend the . . . hearing." The judge subsequently held plaintiff in contempt for her failure to appear and reserved decision on the sanction until after the parties submitted updated Case Information Statements. Thereafter, defendant's counsel submitted a certification of services requesting fees and costs in the amount of $56,409.11 for the period June 27, 2007 through May 31, 2009.
On August 7, 2009, the judge addressed whether to award defendant counsel fees and costs as a sanction for plaintiff's failure to appear, stating: the failure to appear and the subsequent costs associated with the subpoenas, is reduced considerably from the overall application for . . . counsel fees that led into the whole series of issues before the court.
What we're really dealing with [is] a limited issue of the subpoenas, counsel fees for that appearance that day, whatever costs associated with the failure to show up on that day. That's it.
And you know, I've got to question how much that's going to be. It's not going to be that much. All right?
. . . So, I have to look at that, and I will do that, and come up with an order in that regard.
Despite stating that the sanction for plaintiff's failure to appear was "not going to be that much," the judge subsequently entered an order on October 22, 2009, ordering plaintiff to pay $25,318.34, which represented nearly one-half of the entire fee defendant sought for the period June 27, 2007 through May 31, 2009. This appeal followed.
It is clear from our review of the record that although the trial judge used the word "contempt," he intended to sanction plaintiff for her failure to appear on January 26, 2009. Thus, Rule 1:2-4(a), not Rule 1:10-2, applies to the imposition of sanctions. An award of counsel fees pursuant to Rule 1:2-4(a) is an appropriate sanction for conduct that unjustifiably consumes judicial resources or wastes adversary counsel's time. See Rabboh v. Lamattina, 312 N.J. Super. 487, 493 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999). An award of counsel fees and costs pursuant to Rule 1:2-4(a) is subject to the abuse of discretion standard. See Abtrax Pharms., Inc. v. ElkinsSinn, Inc., 139 N.J. 499, 517 (1995); Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000).
Applying this standard, we discern no reason to disturb the judge's decision to sanction plaintiff for her one-day non- appearance. Her willful failure to appear violated Rule 1:2-4(a), thus subjecting her to a list of sanctions referenced therein, one of which is the payment "of the reasonable expenses, including attorney's fees to the aggrieved party." R. 1:2-4(a). However, we conclude that the judge's award of counsel fees and costs in the amount of $25,318.34 for a one-day non-appearance was a mistaken exercise of discretion. Accordingly, we reverse that part of the October 22, 2009 order requiring plaintiff to pay $25,318.34, and remand for the determination and imposition of reasonable counsel fees and costs for plaintiff's one-day non-appearance pursuant to Rule 1:2-4(a).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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