On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-268-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges Grall and Skillman.
The parties to this matrimonial action were divorced in 2004. On August 21, 2007, the trial court entered a post-judgment order, which provided that defendant shall not have overnight parenting time with the parties' two children pending further order of the court.
On January 8, 2010, defendant filed a motion to vacate this order and to allow him overnight parenting time. Plaintiff filed a lengthy certification in opposition to this motion and a cross-motion for an order requiring defendant's parenting time to be supervised.
On March 5, 2010, the trial court entered an order denying defendant's motion "without prejudice." The order also denied plaintiff's motion for supervised parenting time. This order further provided:
. . . That the parties shall submit to an evaluation by the Bergen Family Center. The Bergen Family Center shall issue a report determining whether the defendant has shown "significant therapeutic progress" which would allow an increase in his parenting time with the parties' children.
The Bergen Family Center subsequently interviewed the parties, their children and other parties and issued a report on May 24, 2010. In addition, plaintiff retained her own expert, Dr. Michael J. Fiore, to evaluate defendant's fitness to have overnight visitation, to whom she paid $7500.
After these expert reports were obtained, the trial court scheduled a plenary hearing on defendant's motion to be allowed overnight visitation with the parties' children. However, on the day of the scheduled hearing, defendant withdrew his motion because he could not provide the children with "adequate housing" for overnight visitation.
Plaintiff then filed a motion for an award of $25,267.87 for the counsel fees, litigation expenses and Dr. Fiore's expert witness fee she incurred in preparing to oppose defendant's motion to resume overnight visitation.
On October 18, 2010, the trial court entered an order that awarded plaintiff $3500 for her counsel fees and an additional $3000 for the expenses she incurred in connection with defendant's motion before it was withdrawn. The court issued a statement of reasons accompanying the order which stated that defendant should not have brought the motion until he had "stable housing" for the children and concluded that the withdrawal of the motion on the day of the hearing constituted "bad faith." The court also reviewed the other factors set forth in Rule 5:3-5(c) that govern an application for an award of counsel fees in a matrimonial action.
Defendant appeals from this award to plaintiff for her counsel fees and expenses incurred in opposing his withdrawn motion. Plaintiff has not cross-appealed from the court's failure to award her the full amount sought by her motion.
Our review of a trial court's decision on a motion for an award of counsel fees and other litigation expenses in a matrimonial action is limited to determining whether the court abused its discretion. See Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We are satisfied that the court properly applied the factors set forth in Rule 5:3-5(c) and did not abuse its discretion in awarding counsel fees and litigation expenses to plaintiff. Defendant's ...