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Moses Segal v. Cynthia Lynch

January 31, 2011

MOSES SEGAL, PLAINTIFF-APPELLANT,
v.
CYNTHIA LYNCH, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-171-07.

The opinion of the court was delivered by: Newman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 30, 2010

Before Judges Baxter, Koblitz and Newman.

The opinion of the court was delivered by NEWMAN, J.A.D. (retired and temporarily assigned on recall)

This appeal involves the award of parenting coordinator fees to Linda A. Schofel for responding to plaintiff, Moses Segal's, grievances against her. The trial judge, not finding any material issues of fact in dispute, decided the grievances on the voluminous submissions by the parties, and found them to be without merit.

Plaintiff argued that he was entitled to a plenary hearing on the twenty grievances and that the matter should not have been decided on the papers. He also asserted that fees were awarded to a pro se attorney representing herself, and such award was prohibited by law. As a matter of public policy, plaintiff maintains it was inappropriate to award fees to a parenting coordinator because it would discourage other parties from filing grievances against a parenting coordinator. Plaintiff also contends that the amount of the fees of $33,304.57 were excessive. The trial judge rejected all of plaintiff's arguments.

Plaintiff has interspersed his discussion of the propriety of an award of fees to a parenting coordinator for responding to the grievances with his dispute about the quantum of her fees for parenting coordinator services. Regarding the services issue, plaintiff asserted that a plenary hearing should have been held. The trial judge disagreed and awarded $12,128.95.

Lastly, the trial judge addressed a discovery motion and a motion for reconsideration of the discovery motion rulings. Fees were awarded pursuant to Rule 4:23-1(c) as sanctions for unjustified discovery applications.

We will treat the parenting coordinator issues relating to the grievances first, the fees awarded for the parenting coordinator's services second, and third, the fees awarded in connection with the discovery motion and the motion for its reconsideration. We are convinced that the trial judge was correct in his various rulings and fee awards and affirm.

I.

Plaintiff and defendant Cynthia Lynch had a common-law marriage under the laws of Canada. Two children, a son and a daughter, were born during their relationship. They separated in 2001. On September 22, 2006, plaintiff sued for joint custody and extended parenting time. Plaintiff asserted that defendant had alienated the children from him. On the other hand, defendant pointed out that plaintiff had abandoned the children for two years and his whereabouts were unknown. Plaintiff's departure was occasioned by his avoidance of jail because of non-payment of a support judgment. She attributed, in part, the children's attitude toward him to his extended absence.

On March 5, 2007, the Supreme Court of New Jersey approved a Pilot Parenting Coordinator program in a few counties, including Morris. A parenting coordinator's duties were to "facilitate the resolution of day-to-day parenting issues that frequently arise within the context of family life when parents are separated." The Supreme Court issued "Parenting Coordinator Pilot Program Implementation Guidelines" (Guidelines), which describe the role and authority of the parenting coordinator, a grievance process, and other details.

Shortly after this, on April 5, 2007, the trial judge appointed Linda A. Schofel (hereinafter, parenting coordinator) as parenting coordinator. On May 7, parenting coordinator presented retainer agreements to plaintiff and defendant, which were signed by both parties. The agreement provided that the parenting coordinator would bill the parties at a rate of $325 per hour, and that her fees would be divided evenly among the parties, unless parenting coordinator determined, in her discretion, that one party was abusing the process. The fees included time spent "preparing notes, recommendations, or reports for the parties, the attorneys and/or the court. . . ."

Parenting coordinator's services were tested almost immediately when an issue arose regarding the sharing of travel information between plaintiff and defendant. Soon thereafter, various issues arose throughout the summer--whether parties can copy each other on emails, scheduling parenting time around camps, math tutoring, and extended vacation time.

Not long after parenting coordinator was appointed, plaintiff called for her recusal. On May 17, 2007, parenting coordinator contacted the trial judge in order to clarify the intent of an order. Apparently, plaintiff thought this was inappropriate and asked parenting coordinator to recuse herself. On May 24, 2007, plaintiff's counsel wrote, "[since you will not recuse yourself] we will now be forced to engage in Motion practice regarding same as per the Court, which I am preparing." Parenting coordinator responded, stating that she was not sure why she would recuse herself since there was no conflict of interest and she felt that she had a good rapport with both parties and their children. Plaintiff's attorney responded with a letter that criticized parenting coordinator's work to that point and stated, "I see no further necessity for you to continue this letter writing campaign since I will be moving before the Court to address the problems noted above." Parenting coordinator responded on May 31, by informing plaintiff's attorney of the grievance procedure set out in the Guidelines. She noted that plaintiff should bring his grievances to her personally, and then, if they could not be resolved, plaintiff should write a letter to her and to defendant detailing his grievances. After that, if they could not resolve the matter, plaintiff could request a hearing from the trial judge. At that time, no further steps were taken in the grievance process.

During the next several months, plaintiff continued to express dissatisfaction with parenting coordinator. Plaintiff was upset when parenting coordinator agreed to meet with one of the children. As a result of plaintiff's objection, parenting coordinator did not meet with her. Plaintiff met parenting coordinator in her office, as per the grievance procedure, on August 27, 2007. Instead of sharing his concerns, plaintiff stated that he wanted to hear what parenting coordinator had to say. Parenting coordinator informed him that she supported his relationship with both of his children.

Plaintiff sought to meet again with parenting coordinator, but with his attorney present. Parenting coordinator responded that she was willing to meet with plaintiff alone, or with attorneys for both parties present, but that she would not meet with plaintiff and his attorney ex parte. She also stated that plaintiff's attorney was free to express his concerns to her in writing.

On November 12, 2007, plaintiff sent a letter to parenting coordinator containing twenty grievances that he had against her. Upon receipt of this letter, parenting coordinator advised plaintiff that she would respond, but that she would bill plaintiff alone for the time that it would take to do so, and that it would be "a major undertaking, at considerable cost." She also stated, "I wanted you to know my thoughts about the fee arrangement before I begin the process." Plaintiff responded that defendant should not be responsible for these fees and "if any court, any other governing body or any governing committee believes at the end of the day that I should pay you to respond to my grievance about your services, then I will pay it." On November 26, parenting coordinator responded to plaintiff and stated, "I will charge you for the time that it takes me to respond to your grievance letter."

For the next few weeks, plaintiff and parenting coordinator communicated about her billing practices, but were unable to meet and have a meaningful discussion. On December 9, 2007, plaintiff submitted his grievance letter to the trial judge. On December 19, the trial judge issued an order to show cause why parenting coordinator should not continue in her role as parenting coordinator and why plaintiff should not immediately pay her bill for services rendered. Parenting coordinator submitted her response to plaintiff's grievances on January 3, 2008. Plaintiff submitted his reply on February 15, 2008.

On April 14, 2008, the trial judge found that all twenty of plaintiff's grievances were without merit and ordered plaintiff to pay parenting coordinator's fees, which included time spent preparing her response to plaintiff's grievances. The trial judge reasoned that parenting coordinator spent a significant amount of time out of her practice responding to plaintiff's grievances and that parenting coordinator "should not be penalized for plaintiff's unreasonable conduct."

Following a review of a transcript involving the parenting coordinator, plaintiff, and defendant, Judge Weisenbeck had this to say: "It is abundantly clear to the Court that [parenting coordinator] conducted herself professionally and admirably under sometimes contentious circumstances, did her best to control the anger exhibited by both parties, and acted solely in the best interests of the children."

On appeal, plaintiff raises the following issues for our consideration:

POINT I THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING LINDA SCHOFEL, ESQ. PRO SE ATTORNEY'S FEES.

A. A self-represented litigant cannot incur attorney's fees.

B. The Family Court does not have jurisdiction to award litigation related attorney's fees incurred by court-appointed experts.

POINT II EVEN IF PERMITTED BY LAW, THE TRIAL COURT'S AWARD OF PRO SE ATTORNEY'S FEES WAS AN ABUSE OF DISCRETION.

A. As to the April 14, 2008 award of pro se attorney's fees in the amount of $33,304.57.

B. As to the June 24, 2008 Order awarding Ms. Schofel pro se attorney's fees for the time and expenses spent on filing her Motion to Quash plaintiff's Subpoena and the ...


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