June 29, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-282-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011 - Decided Before Judges Messano and Waugh.
Defendant J.R. appeals from the Family Part's order of January 29, 2010 that ordered him to pay plaintiff's counsel fees in the amount of $3156.35. We have considered the arguments defendant has raised in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
We need not recite in detail the long and contentious history between the parties. That is adequately set forth in our prior opinion, J.M. v. J.R., No. A-2953-08 (App. Div. April 15, 2010). It suffices to say in that prior appeal we remanded for a custody hearing regarding the parties' daughter, then three-years old, but in all other respects denied defendant's requests for relief. Id. at 13.
While the appeal was pending, plaintiff sought an order garnishing
defendant's wages to satisfy a judgment of $5846.32 entered on July
12, 2007 (the 2007 judgment) that reflected an award of counsel fees
to plaintiff in the underlying domestic violence action.*fn1
Defendant opposed the motion and sought, among other things,
vacation of the judgment. On June 26, 2009, the Family Part judge in
Hunterdon County, where the action was then-venued, heard argument on
Concluding she had jurisdiction to enforce the judgment despite the pending appeal, the judge granted plaintiff's request for a wage execution. The judge denied defendant's request to vacate the judgment without prejudice based upon his representations that the judgment was under appeal. The judge also denied defendant's request to stay enforcement of the wage execution, and "bifurcated" defendant's request for a change in venue, indicating in her "preliminary decision" that the motion would be decided by the presiding judge of the Family Part.
On July 6, the judge entered an order directing the Sheriff of Somerset County to garnish defendant's wages to satisfy the 2007 judgment. On the same day, defendant filed a motion in Hunterdon County seeking to vacate the order. Alternatively, defendant sought a stay of the wage execution pending appeal.
On July 9, the Presiding Judge of the Family Part entered an order transferring venue because both parties were employed by Somerset County, i.e., the same vicinage as Hunterdon County. On July 15, plaintiff filed a cross-motion seeking counsel fees and costs. In her certification, plaintiff alleged that defendant had misrepresented the issues that were the subject of his appeal at the June 26 hearing because the wage execution was not a subject of the appeal, and that defendant should have awaited the transfer of venue before filing his motion. Based upon defendant's misrepresentations and "continuous filings with the Superior Court as well as the Appellate Division," plaintiff sought an award of counsel fees incurred in seeking the wage execution and in responding to defendant's latest motion. Plaintiff's counsel attached a certification of services seeking $1620 in fees and costs.
On July 26, defendant sent a letter to the Assistant Division Manager of the Family Part in Hunterdon County noting the change of venue and withdrawing his motion to vacate. On September 3, the parties appeared before the Family Part judge in Middlesex County for argument on plaintiff's cross-motion. Defendant claimed he had re-filed his motion in Middlesex County.*fn2
The judge denied defendant's request to vacate the wage execution or stay its enforcement, concluding the issue had been addressed by the Family Part judge in Hunterdon County. Regarding plaintiff's cross-motion for fees, the judge asked plaintiff's counsel to re-send the papers with copies to defendant, and he provided defendant with the opportunity to oppose the request. Plaintiff's counsel forwarded another certification of services and costs in the total amount of $2847, and defendant filed opposition on September 18.
On October 9, the judge entered an order denying plaintiff's request for counsel fees. In an attached memorandum of decision, the judge noted that defendant had withdrawn his motion believing it would be heard in Middlesex County. However, the judge reiterated his remarks made at the September 3 hearing -- that defendant's request sought reconsideration of the prior judge's decision and that it was not properly before the court. Turning to plaintiff's request for counsel fees, the judge reviewed the factors contained in Rule 5:3-5(c). He concluded that he lacked any information regarding the parties' financial circumstances and ability to pay. The judge also noted that defendant's actions, while "legally incorrect," "were as a result of his unfamiliarity with the rules of law as he was pro se." The judge noted plaintiff had previously been awarded $5541.54 in fees. Lastly, the judge observed that "[m]uch of the litigation in this matter was as a result of the defendant appearing pro se and not appreciating the applicable law." He denied plaintiff's fee request.
Plaintiff moved for reconsideration on October 29. In her certification, plaintiff set forth in detail the repetitive motion practice that allegedly was engendered by defendant's relentless attempts to vacate the previous award of counsel fees. She attached a prior order from the Family Part threatening defendant with sanctions "as a deterrent" if he continued to file such motions. Plaintiff also attached copies of more than one dozen letters defendant sent to the court and plaintiff's counsel since May 2009, noting that this correspondence frequently required a response from her attorney.
Plaintiff also noted that the judgment had been outstanding since 2007, that defendant had not paid any amount toward satisfaction, and that the judgment was now recorded as a lien against defendant's property.*fn3 Plaintiff provided this, and other information, specifically in the context of the factors contained in Rule 5:3-5(c).
On November 12, defendant filed a cross-motion, opposing plaintiff's request for reconsideration and asking for "[c]ross [e]xamination" of plaintiff and plaintiff's counsel, sanctions against plaintiff and her counsel "for having committed . . .
[f]raud upon the Court," and permission to do a "forensic accounting of payments" made to plaintiff's counsel by plaintiff or others on her behalf.
The parties again appeared before the judge on January 29, 2010. The judge asked defendant to proceed on his cross-motion. Defendant told the judge, "This is [plaintiff's] motion to reconsider . . . her ninth application for wage execution starting back from December of '08." When the judge asked defendant what his request was, he responded, "I misplaced it, I don't have it with me today. I don't have my paperwork." The judge dismissed defendant's cross-motion.
Turning to plaintiff's motion for reconsideration, the judge recited the procedural history of the litigation since entry of the 2007 judgment. The judge then concluded:
In her motion for reconsideration the plaintiff contends that the Court based its decision upon plainly, incorrect reasoning and failing to consider the defendant's lengthy history of challenging the validity of the 207 [sic] award of counsel fees and all subsequent attempts at enforcement of that award. In essence, the plaintiff argues that rather than being unfamiliar with the applicable rules of law and procedures, the defendant is so well acquainted with them that he has managed to avoid paying anything in over two and a half years while burdening . . . his opponent with legal bills.
Indeed the defendant professes as much in his own cross-motion to dismiss the plaintiff's motion for reconsideration . . . in which he writes most of this litigation in this matter was not so much the result of the defendant's unappreciating [sic] the applicable law, but rather necessitated to protect defendant's rights to due process and to expose the fraud perpetrated against the defendant.
The Court finds that there is no credible evidence to suggest that the plaintiff perpetrated any fraud whatsoever, and in fact the . . . Court finds that the defendant . . . is the wrongdoer in this matter. And accordingly the plaintiff's application for counsel fees for this matter is reconsidered and the Court's order for fees in the amount of $3,156.35 is granted, and should be paid by the defendant within 30 days.
The judge entered the order under review.
Defendant first argues that the judge "abused [his] discretion . . . by failing to state on the record the reasons and conclusion[s]" for his order granting reconsideration and ultimately awarding plaintiff counsel fees. We disagree.
We have said:
Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence[.] [Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
Such a request is "committed to the sound discretion of the [trial] court." Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).
The award of attorney fees in the Family Part is governed by Rule 5:3-5(c) which sets forth a number of factors to be considered by the judge. Counsel fees may be awarded if a party acts in bad faith. Diehl v. Diehl, 389 N.J. Super. 443, 454 (App. Div. 2006); see also R. 5:3-5(c)(3) (listing "reasonableness and good faith of the positions" of the parties as a factor in any award of counsel fees).
Any award of counsel fees is discretionary. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (citing R. 4:42-9(a)). On appeal, we will not reverse a decision regarding counsel fees absent a showing of an abuse of discretion involving a clear error in judgment. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).
Here, the judge adequately set forth why he was reconsidering his prior order and why he was granting plaintiff's request for counsel fees. Defendant's prior appeal did not, in fact, challenge the 2007 judgment. Implicit in the judge's finding that defendant was "the wrongdoer in this matter" was a conclusion that defendant had acted in bad faith. In short, there was no mistaken exercise of the judge's discretion in reconsidering his prior denial of plaintiff's request for counsel fees and in his decision to make such an award.
However, the judge failed to explain how he calculated the fee award of $3156.35. We are, therefore, unable to meaningfully review the amount of the award that he made. Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008).
Given the contentious and protracted litigation that has already ensued, we might otherwise exercise our original jurisdiction.
R. 2:10-5. However, the certifications of services supplied by plaintiff's counsel that are in the appellate record never sought the amount actually awarded. We are therefore compelled to remand the matter for further consideration and explanation of the amount of counsel fees awarded.
The rest of defendant's arguments are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed in part; reversed in part; remanded. We do not retain jurisdiction.