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C.P., Sr v. A.F

May 11, 2011

C.P., SR., PLAINTIFF-APPELLANT,
v.
A.F., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FD-18-595-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 9, 2010

Before Judges Yannotti and Espinosa.

This is plaintiff's second appeal from a counsel fee award to defendant. For the reasons that follow, we reverse.

This matter was the subject of a prior appeal, C.P., SR., v. A.F., No. A-4111-07 (App. Div. May 12, 2009). The factual background is set forth in our unpublished opinion and need not be repeated here. We note only the salient facts relevant to this appeal.

The parties were not married but had one child together, C.P., in March 2004. After the Division of Youth and Family Services (DYFS) removed C.P. from defendant's custody in January 2007, plaintiff became the custodial parent. In May 2007, plaintiff filed a pro se application for custody of C.P. and, by the following month, was represented by Legal Services of Northwest New Jersey, Inc. (Legal Services). Defendant retained private counsel. In August 2007, DYFS determined that A.F. could resume her role as the custodial parent and, thereafter, defendant filed a motion seeking child support from plaintiff. The parties settled the custody and parenting time issues in February 2008, leaving defendant's request for an award of counsel fees to the trial court for determination.

Defendant submitted a certification of attorney services in the amount of $8,485.26. In support of her application, defendant contended she had incurred over $13,000 in counsel fees and costs due to "significant extra charges associated with having to defend against multiple bad faith 'unfounded' claims via DYFS and to the police"; she had exhibited good faith in attempting to resolve the dispute and defendant had demonstrated "extreme bad faith"; and there had been no previous award of counsel fees.

In opposition, plaintiff submitted a certification in which he stated he filed a complaint for custody out of concern for his son when defendant was indicted for her alleged participation in a drug distribution ring. He argued the filing of a complaint under such circumstances should not "be considered a factual basis for a finding of bad faith." He also noted he had not made any discovery demands and litigation activity was made necessary by defendant's motions for the release of DYFS records and to quash hospitalization records regarding a second suicide attempt. Plaintiff stated defendant's request for child support exaggerated his income by $5000. He further alleged she "made regular accusations of fact that were simply not true and interfered with the progress of the case." By way of example, plaintiff stated defendant had falsely alleged she had been a client of defendant's attorney to support an application for his disqualification. Plaintiff also stated defendant's counsel had repeatedly alleged plaintiff committed acts of domestic violence against defendant and that the falsity of these allegations was shown by the fact that defendant conceded in court she was not ever harmed by him and withdrew her complaint. He cited other examples of litigation activity that, he claimed, needlessly prolonged the matter and added to expenses, noting it was not he but defendant "who took the drugs that led to the neglect complaint by DYFS; . . . who participated in a drug ring . . . [and] repeatedly ended up in the hospital for suicidal actions or ideations." Finally, plaintiff stated he lacked the income or assets to satisfy the fee sought.

The trial court awarded defendant the full $8,485.26 in counsel fees requested. The court stated plaintiff was financially capable of paying defendant's "substantially reduced attorney's fees," there had been no prior award of counsel fees, and there was "demonstrated litigiousness on the part of [p]laintiff, if not bad faith in his assertions."

In reversing the award of counsel fees to defendant, we stated the following about the basis for the award:

Prior to making the award, the court . . . indicated that in determining whether counsel fees should be awarded, it would "consider the non-payment of support by defendant during the [January 12 to May 6, 2007] time period as well as the plaintiff's payment of all day care expenses without defendant's contribution during that same time." However, the court's statement of reasons did not include its consideration of these factors. Rather, the court's written statement of reasons focused upon the parties' ability to pay and plaintiff's litigiousness. Yet, even with its consideration of these factors, the court did not make specific reference to the facts upon which it relied in reaching its determination. [Id., slip op. at 8]

Citing Rule 1:7-4(a), we noted the particular importance of factual findings relevant to the legal standards where the trial court's decision is discretionary, such as in the award of counsel fees. Id., slip op. at 9. We stated further:

Based upon the record before us, it appears that plaintiff filed a motion for custody in May 2007, months before defendant sought child support in a motion she filed on August 28, 2007. Hence, it is unclear to us how the court concluded that plaintiff filed his motion for custody only after defendant filed her motion seeking child support. Additionally, the court did not identify the specific litigation conduct of plaintiff that led the court to find that plaintiff demonstrated litigiousness. To the extent the court was referencing the matters before DYFS that defendant claimed was evidence of plaintiff's bad faith, the court did not set forth the particular facts from those proceedings that may have led it to conclude that plaintiff was litigious. Nor did the court explain how plaintiff, who was represented by Legal Services throughout the ...


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