February 22, 2011
STEVEN POLLOCK, PLAINTIFF-RESPONDENT,
KAREN POLLOCK, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Karen must pay Steven's counsel fees. A subsequent order required the son's attendance at the hearing.
Karen filed a motion on short notice for post-judgment discovery. Karen further requested that her application for attorney's fees be considered at the hearing and demanded a new fee award. According to Karen, the judge responded to her application by telephone, advising that he would "hear the mother's application" at the plenary hearing.
At the beginning of March 2010, Karen sought an OTSC requiring the judge's recusal and the vacation of the orders entered with respect to her application.*fn5 The supporting certification alleged that "by refusing to include [Karen's application for parenting time with the daughter] as part of the [March 8, 2010] plenary hearing, the Court made pre-determined and unarticulated findings about [the daughter] and [Karen]." Karen also alleged that the judge had "no basis" to include Steven's application for attorney's fees in the plenary hearing while excluding Karen's. Karen generally alleged that the judge accorded her and Steven "disparate treatment" and should therefore be disqualified.
The judge refused to issue the OTSC, stating that "the reasons advanced for recusal do not support any claim of prejudice or bias; rather, they constitute factual determinations that have been made with which [Karen] does not agree."
On March 8, 2010, the judge interviewed the parties' son. At the outset, the son described himself as "pissed off right now, . . . because of . . . the whole situation." The following exchange ensued:
THE COURT: So what do you want to do? [THE SON]: I just want to live with my dad full-time --
THE COURT: Okay. [THE SON]: -- full custody.
THE COURT: Why is that? [THE SON]: Just because like I cannot honestly live with . . . my mother. I'm like scared of her. I can't even get any privacy. It's just . . . easier on me living with . . . my dad.
And my mother, like if I just lived with her, . . . it would just honestly destroy me.
THE COURT: [W]hy are you afraid of her?
[THE SON]: I'm just afraid of her, like she's done a lot of things to my sister. She's doing things to my dad. . . . I just don't want that to happen to me.
It's like I just don't want to know when she's like -- because she like screams a lot. And I don't know when she's going to like burst, like out of control.
The son repeatedly returned to two issues: his lack of privacy and Karen's temper.
The parties' son described a positive relationship with Steven. He stated that he "tr[ies] to keep in touch with [Steven] as much as [he] can." They often discussed baseball, and the son testified that Steven coaches his team and "hits balls" to him. Asked if he had anything further to say, the son reported that the whole "process" had been "really stressful."
After the interview, the judge reviewed the results with the parties, offering Karen the following advice:
I would suggest to you that impeding [your son's relationship with Steven] . . . is much the same as the military has when they are in this terrible war in Afghanistan; that they have to be nice to people who are there, . . . so the analogy, . . . although probably a little faulty, is that . . . you take into consideration your son's requests and try to let him go with it.
He's almost 15 years old. He's going to be leaving anyway. . . . [L]ike all teenagers, they think they know more than everyone else. But you have to let them make their own mistakes. You have to let them flourish. And that's really what's best for you, not just best for him.
. . . I spoke to [your son]. I'm very impressed with him. He's a very nice young man. [He] obviously loves you very much. . . . I think he feels that you're a little strict with him, and that's . . . one of the things that he expressed to me.
And I would suggest to you that, if he feels that way, you should let him live with his dad. Come visit, have dinner with you a couple of nights a week. Have weekends with him when you can have fun together.
He clearly has gone to shows with you.
He's showed you funny [YouTube] things.
He's done all those things. He wants to have a good time. So I would suggest that . . . you might find that more productive and satisfying in the long run.
After the hearing, the judge entered a partial*fn6 consent order on March 9, 2010, granting Steven sole residential custody over the son. Regarding counsel fees, the order contained the following provision:
9. [Steven] shall submit his certification of services for the court's determination of same [and Karen] shall submit written objections to same such that the court will render a decision on the papers. [Karen] has a pending counsel fee motion for reconsideration of the court's last order on [Karen's] application for counsel fees on the papers.
Steven filed his certification of services in March 2010. Steven's attorney certified that he had incurred $13,715.00 in fees, $8,495.89 of which was outstanding since October 5, 2009. Karen did the same on or around April 12, 2010. Her attorney asserted that she had incurred $89,900.58 in fees since September 2009. Both submissions included discussion of the factors articulated in Rule 5:3-5(c).
In an order entered on April 16, 2010, the judge granted Steven's application for counsel fees totaling $8,495.89 and denied Karen's fee request. A statement of reasons, which was attached to the order, provided as follows:
The Court has granted [Steven's] application for counsel fees, and denied [Karen's] for the reasons set forth below.
[Steven's] cross-motion was occasioned by [Karen's] order to show cause. [Steven] has been successful in his applications, while the Court has found the overwhelming majority of the relief sought by [Karen] to be inappropriate and based upon largely meritless arguments. [Karen] advanced no evidence showing that [Steven] acted inappropriately with reference to [the son]. [Karen's] litigiousness, rather than any malfeasance on the part of [Steven], is the major reason the litigation was protracted and expensive.
It has been clear since the inception of this litigation--and, presumably, long before--that [the son] desired to live with his father. This litigation is, to a great extent, occasioned by [Karen's] failure to act reasonably in honoring [her son's] wishes to live with [Steven]. [Karen] compounded the issue by her unwillingness to treat [her son] in an age-appropriate manner and respect his privacy.
This appeal followed. We subsequently stayed that payment of the counsel fees.
On appeal, Karen argues that the motion judge erred in denying her motion for fees and in granting counsel fees to Steven. She seeks a remand to another judge, alleging that the motion judge was not fair and unbiased.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
The assessment of counsel fees is discretionary, and will not be reversed except upon a showing of an abuse of discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
An allowance for counsel fees is permitted in a Family Part action, and governed by Rule 5:3-5(c) and Rule 4:42-9. To determine whether and to what extent such an award is appropriate, the court must consider:
(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 both during and prior to trial; (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 an award.
Having reviewed the issues raised by Karen with respect to the judge's decision to deny counsel fees to her, we find them to be without merit and not warranting extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). The decision to award fees is highly discretionary and our review of the record reveals factual and legal support for the judge's decision that Karen was inappropriately litigious and not entitled to fees for that reason. We see no abuse of discretion.
While the inappropriate litigiousness of one party may serve as an important factor for an award of counsel fees to the opposing party, we see no articulation by the motion judge with respect to the other factors outlined in Rule 5:3-5(c) and Rule 4:42-9. We vacate the award of fees to Steven and remand for further consideration and a full articulation of the reasons for the award and the basis of the calculation of the fees. See Walker v. Giuffre, 415 N.J. Super. 597, 606-07 (App. Div. 2010), certif. granted, ___ N.J. ___ (2011), certif. denied, ___ N.J. ___ (2011).
We note that the motion judge no longer sits in the Family Part, and that Karen specifically requests that any remand be assigned to another judge on grounds of judicial bias. We decline to make such a direction, which is not warranted on the record before us. We leave the matter of the assignment of the remand to the assignment judge and the presiding judge of the Family Part in the Middlesex Vicinage.
Rule 1:12-2 allows "[a]ny party, on motion made to the judge before trial or argument and stating the reasons therefor, [to] seek that judge's disqualification." The disposition of a recusal motion is entrusted to the "'sound discretion' of the judge whose recusal is sought." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:12-2 (2011) (citing Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009)); see also Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). The mere fact that a litigant disagrees with a judge's decisions when they are not in his or her favor, however, is not grounds for recusal. We see nothing in the record to support Karen's allegations of judicial bias.
Affirmed in part, vacated in part, and remanded.