On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1112-04C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 16, 2010 - Decided
Before Judges Carchman and Waugh.
Defendant Karen Pollock appeals from an order entered by the Family Part denying her application for counsel fees and awarding counsel fees to her former husband, defendant Steven Pollock, in connection with post-judgment motions that were eventually settled by the parties.*fn1 We affirm the motion judge's decision not to award counsel fees to Karen. However, because the judge did not sufficiently explain the reasons for the fee award to Steven or the method of its calculation, we remand for reconsideration and explanation.
We discern the following facts and procedural history from the record on appeal.
Steven and Karen were married on June 4, 1989. They had two children: a daughter, born in March 1992; and a son, born in May 1995. The couple eventually separated because of "irreconcilable differences."
On July 14, 2005, the Family Part entered an order embodying an agreement concerning child custody and parenting time negotiated by the parties. Steven and Karen were granted joint legal and physical custody of the children, with parenting time to be split evenly between them. They further agreed "that on all matters of importance relating to health, education and general welfare of the children, they [would] confer with each other with a view to adopt and follow those policies which are in the children's best interests." In addition, "[i]t [was] expressly understood by both parties that neither shall do anything to alienate either child's affection or to color either child's attitude toward the other parent." The particulars of the parenting arrangement were to be subject to modification, and the parties designated a parenting coordinator, Linda Schofel, "to resolve conflicts related to parenting issues."*fn2
On October 16, 2006, Schofel wrote a letter to counsel for both parties expressing "concern" about a phone call she had received from the children. During the call, the children recited a litany of complaints against Karen. The most salient of these were that they feared their mother's temper and resented her invasion of their privacy, including their relationship with Steven. Schofel predicted "that there [would] come a day in the near future when [the children would] refuse to stay with their mother."
In February 2007, the Family Part entered a consent order maintaining the parties' joint physical and legal custody of the children. Noting that "it is acknowledged by the parties that [the daughter] currently refuses to spend time with her mother," the order significantly reduced Karen's parenting time with the daughter and provided that she would "not be forced to spend overnights with [Karen]." According to Karen, her daughter "ceased all communication" with her around April 2007.
Karen filed a motion on May 29, 2007, incorporating thirteen prayers for relief, including restoration of her parenting time with her daughter and enforcement of Steven's obligation to "use his best efforts to ensure and encourage [their daughter] to spend time with [Karen]." Karen also sought counsel fees. The motion was denied on August 9, 2007.
In an order entered October 31, 2007, the Family Part granted Steven sole residential custody of the daughter. The change in custody required a recalculation of child support. The judge also directed the parties to "continue to share joint legal and physical custody of [their son] as per the Judgment of Custody and Parenting Time."
On February 1, 2008, a different judge entered an order, apparently in response to a motion not contained in the record, denying the majority of sixteen prayers for relief sought by Karen, but granting her request that Steven produce his financial information. Karen moved to enforce that order in June 2008. Steven responded with a cross-motion, seeking, among other things, sole residential custody of the parties' son. The parties eventually agreed to maintain joint legal and residential custody of their son. That agreement was embodied in a consent order entered September 8, 2008.
In March 2009, Karen applied for an order to show cause (OTSC), seeking enforcement of her parenting time with the son, "sole temporary residential custody," an order restraining Steven from interfering with Karen's parenting time schedule with the son, sanctions against Steven totaling at least $4500, and counsel fees. Karen alleged in her supporting certification that Steven had not delivered their son for her parenting time on February 9, 2009, and that she had "only seen him twice in the [preceeding] month."*fn3 Finding that Karen had not demonstrated an emergency, the judge denied issuance of the OTSC and treated her application as a motion. On April 20, 2009, the judge entered a consent order affirming the parties' joint legal and residential custody of their son.
In September 2009, Karen sought a second OTSC, seeking, among other things, "temporary sole legal and physical custody" of the son, an order restraining Steven from all unsupervised contact with him, $3950 in sanctions against Steven, and counsel fees. She attached a report composed by Amy Baker, Ph.D. Baker conceded that she "ha[d] not met the parties . . . nor the children" and was "also not a licensed clinician." Nevertheless, based on the documents provided by Karen, Baker opined that the children "demonstrate[d] some of [the] tell-tale characteristics" of alienation. Baker blamed Steven, claiming that he had used "known strategies" to estrange the children from Karen. Baker concluded that "[Karen] is likely to be an imperfect parent but one whose children would probably not have rejected her but for the alienation efforts on the part of [Steven]." She predicted that the children would "suffer long-term negative consequences unless they are allowed to repair their relationship with their mother."
The judge again refused to issue an OTSC and converted it to a motion. He entered an order on January 22, 2010, denying all but one of Karen's requests,*fn4 including one for counsel fees. He scheduled a plenary hearing for March 8, 2010, to determine the following issues: the son's residential custody; whether Karen must contribute to the daughter's college costs; and whether ...