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Karen M. Welch v. William B. Welch

December 15, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1006-94.

Per curiam.


Submitted October 25, 2011

Before Judges Payne and Hayden.

Defendant, William B. Welch, appeals from a February 9, 2011 order of a judge of the Family Part awarding him $1,949.76 in attorney's fees and costs as the result of the refusal, by plaintiff, to appear at a hearing scheduled to commence on January 26, 2009. On appeal, defendant argues that the judge also should at least have awarded a $4,563.86 fee incurred in the period from January 17, 2009 through February 20, 2009, allegedly as the result of his counsel's preparation for the hearing. Defendant also notes the judge's failure to award a $1,752.50 fee incurred for the period from March 16 to April 16, 2009 in connection with a motion by plaintiff for reconsideration of a contempt order entered against her as the result of her failure to appear. We affirm.

In this decision, we recite only those facts and that procedural history that directly relate to the appeal. In that regard, the record reflects that the parties were divorced in 1994. At the time, they had one son, born in 1992. The judgment of divorce gave joint custody of the son to the parents, and gave residential custody to plaintiff.

The present matter arises from claims by defendant that plaintiff was attempting to alienate the affections of the son for his father and to interfere with his ability to reconcile with him. In that connection, defendant brought to the attention of the judge to whom the matter had been assigned a series of e-mails written to the leader of the son's Boy Scout troop and to the parents of members of the troop, claiming that those e-mails provided evidence of plaintiff's improper conduct. At a hearing in the matter, plaintiff denied sending the e-mails, although they bore her name as the sender. As a result, the judge scheduled a hearing to resolve the issue of the e-mails' validity, to be held in one-hour segments over the course of the week commencing on January 26, 2009. However, on January 23, 2009, plaintiff wrote to the judge stating, in part:

I have a job that I need to keep and your scheduling of a plenary hearing for an hour a day every day during the last week of January would put my job at risk. I am not able to take the time to attend this hearing. I don't care about scout e-mails.

Plaintiff did not appear at the hearing scheduled for January 26, 2009.

As a consequence of plaintiff's failure to appear, the judge issued an order to show cause why plaintiff should not be held in contempt "for her failure to attend the scheduled court hearing, and her further failure to assist in the effectuation of parenting time between the child and his father." A hearing in the matter was scheduled for February 23, 2009. Following the hearing, the judge issued an order holding plaintiff in contempt "for having failed to appear at the scheduled hearing dates on the transmissions of e-mails to representatives of the Boy Scouts, which contempt shall be subject to sanctions[.]" A decision on the amount of sanctions was reserved pending submission of a certification of attorney's services. Plaintiff filed a motion for reconsideration, but it was denied on April 17, 2009.

In the meantime, on February 20, 2009, defendant's counsel submitted a certification of services, which she supplemented with an additional certification dated June 3, 2009. The certifications set forth services resulting in attorney's fees and costs of $56,409.11 for the period from June 27, 2007 through May 31, 2009.

At a hearing held on August 7, 2009, the judge addressed the sanctions issue and appeared to conclude that his focus was solely on fees and costs incurred as the result of plaintiff's non-appearance on January 27, 2009. Indeed, his order stated:

4. The court has found the plaintiff to be in contempt of court for her failure to appear on January 26, 2009. The court shall reserve its decision pertaining to the amount of counsel fees and sanctions as a result of that failure to appear.

However, in an order issued on October 22, 2009, the judge awarded fees of $25,318.34 for "a series of appearances before this court on the issue of whether the plaintiff was interfering with the defendant's right to access to his child." As support for the award, the judge relied on N.J.S.A. 2A:34-23, Williams v. Williams, 59 N.J. 229 (1971) and Rule 5:3-5. Plaintiff appealed the fee award. In an unreported decision issued on December 8, 2010, we affirmed in part and reversed in part the judge's order, and we remanded the matter for further proceedings. Welch v. Welch, No. A-1541-09 (App. Div. December 8, 2010). In that opinion, we held that although the judge had used the word "contempt," he intended to ...

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