November 15, 2011
MICHELLE BANNON, PLAINTIFF-RESPONDENT,
CHESTER SACCHETTI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FD-01-1329-05B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 17, 2011
Before Judges Parrillo and Grall.
Defendant Chester Sacchetti appeals from a November 2, 2010 order of the Family Part awarding plaintiff Michelle Bannon counsel fees of $6,125 incurred in this high-conflict family controversy involving several court appearances extending over two years and culminating in an October 12, 2010 decision resolving issues of parenting time. We affirm.
Briefly, by way of background, the parties were never married but have two sons together, born in 1997 and 2001. When their relationship ended, plaintiff assumed physical custody of the children and sometime thereafter issues of support and parenting time arose between them. In June 2008, after defendant received a $2 million inheritance, plaintiff moved pro se for an increase in child support and to modify parenting time. As a result, the parties entered into a consent order on August 4, 2008, granting them joint legal custody of the children, fixing parenting time, and temporarily increasing defendant's child support obligation pending further information from defendant as to the status of his inheritance.
The parties next appeared in court, with counsel, on June 23, 2009, at which time they agreed to financial discovery on the child support issue and to modifying the summer parenting time schedule to a three-day-on/four-day-off alternating one, thereby allowing plaintiff additional time with her children. At the same time, defendant's counsel, on the record, expressed defendant's concern that plaintiff was charging third parties (i.e. her mother) with the care of the children due in large part to her work schedule and then stated that it was agreed plaintiff would submit "employment records."
The parties' agreement, however, was never memorialized in an order. Defendant's attorney submitted a proposed order stating, in part, that plaintiff was to provide "employment records as certified to by her employer to defendant on a biweekly basis[,]" to which plaintiff objected. When the parties next appeared in court on October 6, 2009, plaintiff's counsel maintained that in addition to never being agreed upon, requiring an employer to certify and provide an employee's ex-boyfriend with records on a bi-weekly basis, would be absurd, especially since the parties' youngest child is only eight years old and would therefore entail providing to defendant her daily whereabouts for the next ten years. At the close of argument, the court adjourned the matter to allow defendant's counsel time to obtain a transcript of the June 23, 2009 hearing on the issue of verification of employment records. Expressing incredulity at defendant's position, the judge noted: "[t]here is one issue, and that's the issue of bi-weekly - if you agree to it . . .
[i]f you didn't agree to it, I think it's stupid and I'll take it out."
Despite having resolved the parenting issues at the October 6, 2009 hearing, within two weeks defendant filed a motion to modify the parenting arrangement, to compel plaintiff to be with the children during her parenting time, and to produce her employment records. On the December 9, 2009 return date, the parties finally resolved the amount of defendant's child support obligation but left open residual issues of parenting time and counsel fees. As to the latter, the court denied plaintiff's outstanding request while, at the same time, noting the "economic disparity" between the parties. Although the parties' agreement as to child support was memorialized, no order as to parenting time was entered at that time.
This omission led to yet another court appearance on July 2, 2010, instigated by a dispute over a summer 2010 camping trip plaintiff had planned in accordance with the time allotted her under the parenting schedule approved by the court on June 23, 2009. At the hearing, defendant insisted that the "3-4, 4-3 alternating summer parenting schedule" sanctioned by the judge on June 23, 2009, albeit without benefit of court order, had been judicially overturned for want of plaintiff's provision of employment information: "I know that there's a transcript that says that you overturned that order because of their lack of notifying, producing of the documentation that was agreed upon when that order was put into effect . . . I just know for a fact that . . . the 3-4, [4-3] was overturned." Defendant also continued to steadfastly maintain that the record reflected the parties' agreement that plaintiff would produce her employment records. Plaintiff's counsel disagreed and the judge expressly advised defendant that if he was "just rehashing issues that have already been resolved . . . then there is a likelihood that I am going to award counsel fees to [plaintiff]."*fn1 Defendant was then given an opportunity to obtain the transcript in which he claimed the 2009 summer parenting time agreement had been overturned and the parties had agreed to plaintiff's production of her employment records. As to the latter, the judge reminded defendant that he had denied that request, as defendant was not entitled to know where plaintiff is at all times stating, "[b]ut I denied it. Done deal."
Thus, the July 2, 2010 order memorialized the parenting time schedule, allowed plaintiff's counsel to submit a certification of services, and directed defendant to obtain transcripts of prior proceedings to substantiate his claims. At the next court appearance on October 12, 2010, defendant was unable to produce any verification of his claim that the 3-4, 4- 3 summer parenting time schedule fixed on June 23, 2009 was ever overturned. Moreover, a review of the June 23, 2009 transcript failed to substantiate his related claim that this parenting arrangement was contingent on defendant receiving plaintiff's certified employment records on a bi-weekly basis. When defendant nevertheless persisted in arguing entitlement to those records, the court ruled:
I certainly didn't ever, nor would I ever say that it makes sense whatsoever for either him or her or anybody in any kind of matrimonial or family litigation to have to certify by their employers - I've never seen it happen. I've never, I think it would be ridiculous, and in some cases that in and of itself could be oppressive because it could be, you know, an unhealthy interest by one party in the . . . whereabouts of the other party. . . . [I]t doesn't make any sense whatsoever.
The way I look at it, this matter is resolved. . . .
Addressing the issue of counsel fees, the court set forth the factors under Rule 5:3-5(c) that it would consider and allowed defendant's counsel, who had submitted nothing to date, to file a responsive certification to plaintiff's counsel fee certification. The court further advised, "I am inclined to award attorney's fees in this case . . . because if he didn't say what he said it would say and he motivated [plaintiff's counsel] to spend more money on behalf of his client, who can ill afford it . . . then I think there has been an abuse of the process."
By order of November 2, 2010, the court awarded plaintiff $6,125 in counsel fees. In an amplification of his decision pursuant to Rule 2:5-1(b), filed on December 21, 2010, the court explained:
The Court finds that Defendant's position that the Court had ever agreed that Plaintiff's employer should have to give to Defendant a running account of her scheduled employment untrue and Defendant's maintenance of that position, which necessitated another hearing day, unnecessarily prolonged the litigation. The Court believes that this additional delay unfairly required the expenditure of counsel fees by Plaintiff and, thus, took advantage of the unequal financial resources of Plaintiff and Defendant . . . .
At the heart of this matter is the Court's decision that the transcripts do not reflect what the Defendant insists that they reflect. . . . This Court does not see any indication in the record indicative that this particular provision [regarding the certification of plaintiff's work schedule] was agreed to between the parties. . . . Defendant was warned at the hearing on July 2, 2010 that, unless the transcript of the June 23, 2009 proceeding reflected that agreement that defendant was insisting upon, counsel fees would be assessed.
. . . This Court finds that, on the evidence presented both in court and within certifications submitted, that Defendant did not act in good faith and took steps through his counsel to prolong this litigation, knowing that this would disproportionately harm Plaintiff financially.
This appeal follows, in which defendant claims that the award of counsel fees was arbitrary and capricious. We disagree and affirm substantially for the reasons stated by the Family Part judge in his December 21, 2010 letter decision. We add only the following brief comments.
Counsel fees and costs, authorized in matrimonial cases by Rule 4:42-9(a)(1) and N.J.S.A. 2A:34-23, may be granted at the discretion of the trial court, Williams v. Williams, 59 N.J. 229, 233 (1971), subject to a review of "the factors set forth in [Rule 5:3-5(c)], 'the financial circumstances of the parties, and the good or bad faith of either party.'" Mani v. Mani, 183 N.J. 70, 93-94 (2005) (quoting N.J.S.A. 2A:34-23). Among the factors analyzed in its award of counsel fees, the court considered the financial circumstances of the parties; the ability of the parties to pay their own fees; the extent of the fees already incurred, paid to counsel, and the results obtained; the fact that no fees have been previously awarded; and the reasonableness and good faith of the positions advanced by the parties. R. 5:3-5(c)(1)-(7). As to the latter, the court explicitly found that defendant had acted in bad faith in prolonging the litigation by first insisting that plaintiff had been required to provide certified employment records on a biweekly basis, and then adamantly arguing that the summer parenting schedule had been overturned due to her failure to so comply. We defer to the trial court's factfindings and credibility determinations, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), and in light thereof conclude that the court properly considered and analyzed all relevant factors in its award of counsel fees. We discern no abuse of discretion in the ultimate assessment.