December 29, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-395-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 26, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this post-judgment matrimonial matter, plaintiff Z.H. (appellant) appeals from three orders entered by two Family Part judges pertaining to the dismissal of defendant's claims against him for wiretapping and installation of spyware and to parenting time and related issues regarding their then almost seventeen-year-old twins. We affirm.
I. General History
The parties have engaged in protracted and rancorous post-judgment proceedings in New Jersey beginning in September l999, mostly pertaining to their children. We recite only the facts and procedural history relevant to the present appeal. The parties were divorced in New York in August l998, and pursuant to the divorce agreement, defendant had primary physical custody of their three sons -- the eldest, then almost eight years of age, and the twins, then five years of age -- subject to liberal visitation by appellant as extensively detailed in the parties' parenting time schedule. In June 1999, defendant relocated to New Jersey with the children, as provided for in their agreement, and appellant followed shortly afterwards.
Beginning in 1999, the court, in an effort to resolve parenting time issues and assist appellant in reunifying with the children, appointed various individuals, including a facilitator, parenting coordinator, psychologist, intervention specialist, family bonding therapist, guardian ad litem, and law guardian. Specifically, in February 2004, the court entered an order appointing Jamie Von Ellen, Esquire, as guardian ad litem and Bruce Pitman, Esquire, as the law guardian for the children -- positions they held throughout these proceedings. Appellant's relationship with his sons, however, continued to deteriorate.
In October 2006, the police responded to appellant's home resulting from the report of an argument between appellant and his eldest son, then almost sixteen years of age. The police reported that appellant became "enraged" because his son had a telephone conversation with the law guardian and appellant retaliated by throwing out items he had purchased for the children. Appellant told the police he did not want the children in his house and wanted to voluntarily suspend visitation with them. Accordingly, pursuant to the law guardian's order to show cause, on October 30, 2006 the court entered an order temporarily suspending appellant's parenting time, including telephone contact. The court appointed Dr. Dorothy Cantor, a psychologist, to evaluate the parties.
In January 2007, Dr. Cantor submitted a report in which she recommended appellant's parenting time not resume until changes occurred in his relationship with his children. She found it crucial the parties peacefully resolve their post-divorce differences, stating:
[The children] deserve better than to be in the midst of court battles and parental hostility. They share in an angry relationship with their father, although they express different reasons for their negative feelings toward him. . . . Their complaints about him include that he has never really been available either to play or talk, that he doesn't believe that children have any rights or can have minds of their own, that he is not compassionate, and that he insists on things being his way. They fear him, sometimes hate him, and see him as having poor social skills. They all see themselves as expendable to their father if they do not do as he says. They all talk about his threats to never see them again. All in all, it is a very disturbing view of father-son relations and it cannot be good for any of these very bright, verbal teenagers.
She noted the children described defendant as "extremely kind and generous" and defendant denied denigrating appellant to the boys. However, the psychologist was concerned that defendant's feelings of anger, resentment and irritation towards appellant were still so strong after nine years that the boys would have a hard time not being made aware of defendant's views of appellant. Dr. Cantor recommended defendant develop more "emotional distance" from appellant.
Dr. Cantor commented that her assessment of appellant's behavior during the evaluation confirmed many of the complaints of his sons. He was "self-centered and demanding[,]" had "a very hard time listening[,]" and rarely responded to her questions. He was also confrontational, in that if she offered him an appointment, he would ask her for one sooner, and if she offered to meet with him once, he would want to meet twice. The psychologist found that although appellant loved his sons and seemed, at times, to recognize he did things to alienate them, for the most part, appellant blamed defendant, the guardian ad litem and law guardian for "sabotag[ing]" his relationship with his children.
Both parties filed cross-motions. On March 23, 2007, the court entered an order continuing the suspension of appellant's parenting time for six months. During the suspension, appellant was permitted brief contact with the children by telephone or in public places, but the children were not to be "forced to communicate" with him "against their will." The court also denied without prejudice the request for the appointment of a parenting coordinator*fn1 and denied appellant's request to terminate the services of the law guardian and guardian ad litem.
Appellant moved for reconsideration, and defendant filed a cross-motion for counsel fees, supported by a certification and a case information statement (CIS), which appellant contended grossly misrepresented the true extent of her wealth and was fraudulent. By orders of May 31, 2007, the court denied appellant's motion for reconsideration, directed the parties to continue to share the fees incurred by the law guardian and guardian ad litem, and denied without prejudice defendant's cross-motion for attorney's fees. The court also implemented a "Parenting Time Resumption Plan" that directed: (l) the continuation of individual therapy; (2) Lewis Epstein to meet with the boys in connection with the counseling he was giving appellant; and (3) Dr. Cantor to re-evaluate the boys and the parties in August, review updated reports from the therapists, and issue a report addressing resumption of parenting time.
In a July 31, 2007 report, Dr. Cantor found the children were not ready to resume visits with their father. She proposed the following plan, recommending appellant write letters to each of his sons and each would write back with the assistance of their respective therapists, explaining:
The correspondence would go back and forth, with the boys having the assistance of their therapists in dealing with their feelings about what their father is communicating. After the written dialogue has moved along with some success, the next step would be supervised, time-limited phone conversations, taking place when the child is in his therapists' office. Subsequently, visits with the boys in their respective therapists' offices could be initiated. If all of these steps are successful, unsupervised contact would begin.
The time to move to the next step would be determined by each therapist, in consultation with the child. My continuing role would be to check on the progress of the plan with each therapist quarterly, and to ensure that it has not been derailed.
Pursuant to the reconciliation plan, appellant corresponded with the children via email, underwent parenting therapy with Epstein, and re-established a relationship with his eldest son but not with the twins.
Appellant wrote to his sons in September 2007, expressing it was too painful to continue the separation and reconciliation process; he would respect their position and leave it to them to initiate contact with him. Nevertheless, the court convened a status conference in April 2008, and in an effort to facilitate reunification, ordered an intervention specialist to conduct therapeutic bonding sessions between appellant and the children. The court also implemented Dr. Cantor's plan, directing that once the specialist determined which issues they needed to address, the therapy would proceed into the second phase of bonding based on what the therapist found was in the children's best interests. In the interim, appellant was permitted to continue writing to his sons.
Cynthia A. Paglio, the intervention specialist, submitted a report dated July 17, 2008, in which she related that the boys, particularly the twins, "held steadfast" to the fact they were not interested in speaking or reuniting with their father. She elaborated:
They have no trust in him, they do not respect him, they harbor a lot of anger and resentments toward him and they do not recognize him as a Father. Complicating the issue of reunification is the fact that they see no logical reason to submit themselves to any further mistreatment as they are now teenagers with their own lives. [There was no] . . . information or evidence that Defendant has interfered with the relationship between father and children. The [appellant] has a very abrasive nature which at times comes across as indignant and entitled. He has demonstrated an incredible lack of patience and an inability to understand and accept unforeseen scheduling problems . . . .
Paglio opined that the "element of time and maturity will aid the process" of reunification between appellant and the twins, but that further court orders would continue to fuel their increased hostility toward him.
In an addendum to her report dated August 4, 2008, Paglio noted the eldest son was able to internally process the difficulties he had with communicating with his father and independently decided to reconnect with him subject to his own availability. One of the twins, however, demonstrated an adamant unwillingness to meet in person with his father and exhibited fear and anguish at the thought of doing so. The intervention specialist opined that it was unlikely further sessions with the boys would increase their willingness to have open communication with their father.
In contrast, Epstein, appellant's therapist, opined in a letter to the court dated September 3, 2008, that it would be in the best interest of the entire family, especially the children, for the reconciliation and bonding process to move forward without further delays. He described appellant as "a highly motivated client" who demonstrated the capacity and desire to make the necessary arrangements and changes to better see the world from his children's point of view and who worked to develop the skills that would allow him to reconnect with his sons in a meaningful and fulfilling way.
II. Spyware (first order on appeal)
Meanwhile, on August 18, 2008, defendant sent, from one of her home computers, a confidential email addressed to her attorney, in which she discussed concerns she had regarding appellant's plan to call the children as witnesses in the ongoing reunification proceedings. She did not, however, either intentionally or inadvertently send a copy of the email to appellant, but somehow he obtained it and emailed it to his sons. One of the twins notified his mother, who filed a report with the police department, triggering a brief interrogation of appellant by the prosecutor's office.
Defendant hired Scott Anthony of iFocus Solutions Corporation to investigate. Anthony discovered that on July 29 and July 31, 2008, someone had manually installed KGB spyware, a commercial multifunctional keyboard tracking program that monitored all keystrokes, registered webpages and programs, Windows' clipboard, and made periodic screen shots of the computer desktop, on two of the computers in her home, and forwarded a log of all her computer activity by email every eight hours to the email address "email@example.com."
On September 26, 2008, defendant filed an order to show cause seeking, in part, sole custody of the children, termination of electronic contact between appellant and the children, to hold appellant in violation of litigant's rights for violating the Wiretap Act, to preserve her right to file a separate action against him, and discovery. In her supporting certification, defendant explained that she was vacationing with two of her sons in California on the dates the spyware was installed, and her third son, who remained home with her friends who were staying in the house with him, was at work at the time the software was installed. She claimed appellant could have installed the spyware onto her computer because he knew she would be away, and he had the necessary skills because he was a tenured professor in the school of engineering at a university, had conducted research on wireless communications, and held several patents in that field. Defendant urged there was no reasonable explanation for how appellant had received her email other than by illegally accessing her computer.
In a responding certification, appellant denied the accusations, and sought dismissal of the order to show cause, a protective order, legal expenses, appointment of a reunification specialist and a parenting coordinator, and an order vacating all prior orders related to his parenting time. He said he was at work in upstate New York on the days the spyware program was installed on defendant's computers, and on August 20, 2008, at 8:39 a.m., he received an email from her email address that included a copy of her August 18 email to her attorney. According to appellant, he assumed she was trying to pick a fight, and thus did not respond to her. He did, however, forward the email to his eldest son and to the guardian ad litem, and then inadvertently also forwarded copies to the twins. He later confirmed through the university's computer operations department that the email had been sent to his AOL email address as part of what then appeared to be a regular email transaction.
On November 18, 2008, the court signed an order granting, in part, the parties' discovery requests, and directing the infected computers be delivered to the law guardian's office for quarantine and inspection. On January 12, 2009, the court signed an amended order detailing the procedure for inspection of the computers, and directed the parties to bear the costs of their own respective computer expert subject to apportionment by future motion following the conclusion of discovery.
On March 5, 2009, the court entered an order appointing a discovery master, and extensive discovery ensued. In a reply certification, appellant detailed that his investigation revealed defendant's "friends" B. and E. Smith,*fn2 who were staying at her house the week she was away, had installed the program. He explained he discovered the Internet Protocol (IP) address of the computer from which defendant's email had been forwarded, which resolved to Frontier Communications, was allocated to the geographical area where the Smiths resided. He contended defendant's accusations that he had installed spyware "might" have a "devastating effect" on his professional career, and may severely affect his ability to do legal consulting work.
By letter dated June 3, 2009, defendant's attorney forwarded appellant a proposed consent order permitting defendant to withdraw "[a]ny and all applications currently before this Court with regard to the current wiretapping accusations and events regarding KGB spyware[.]" Appellant refused to sign the order.
Instead, in June 2009, appellant filed a pro se motion for "summary judgment" seeking dismissal of defendant's spyware accusations against him and an express finding that he had no part in the incident, did not violate the state wiretapping statute, and did not violate defendant's privacy. He also requested the court direct the law guardian and guardian ad litem to inform the children that the accusations were baseless, find defendant acted in bad faith in pursuing the claims and in failing to disclose that the Smiths were staying in her residence, and direct defendant to reimburse his legal, expert and law guardian fees. He certified he had obtained information from Frontier that: (l) the IP address from which defendant's email had been forwarded was, in fact, assigned to B. Smith, with E. Smith listed as a sub-account; (2) the email account, firstname.lastname@example.org, was a "free" AOL account, which contained "phony registration information"; and (3) it had been set up three days before the first date of the spyware installation. AOL provided appellant with a list of IP addresses from which accesses were made into defendant's AOL account; he verified there were twenty-one accesses from B. Smith's account and twenty-three accesses from the geographical area of the Smith's residence. The last access by B. Smith on September 4, 2008, failed, presumably because defendant's expert changed her AOL password. Based on this information, appellant concluded the Smiths had monitored defendant's computer transmissions sent to them by the spyware, which had allowed them to obtain the login information to her AOL account, and they logged onto her account multiple times from August 15 to September 4, 2008 and read her email. Appellant surmised that the Smiths, who were logged onto defendant's AOL account on August 20, had then inadvertently forwarded him a copy of her August 18 email to her attorney.
Defendant cross-moved for dismissal with prejudice of all of her claims against appellant for wiretapping and installation of spyware. In a supporting certification, she claimed she acted in good faith based on the information available, notably, her discovery of the spyware because appellant forwarded her email to the children. She denied concealing that her friends had stayed in her home, citing to an email sent to appellant stating they were staying there, which she had attached to her certification in support of the order to show cause.
On August 4, 2009, Judge Robert J. Mega conducted oral argument on the parties' motions, made findings of fact and conclusions of law, and entered an order, granting in part, and denying in part, the relief sought by the parties. The judge dismissed with prejudice defendant's complaint regarding the wiretapping accusations and events regarding the KGB spyware, finding she had a right to withdraw the claim, and because she had done so with prejudice, found appellant's application for summary judgment was moot. Nonetheless, the judge granted appellant's application to direct the law guardian to inform the children the claims against appellant had been dismissed. The judge also denied appellant's request for counsel fees in defending the action, finding defendant had not engaged in bad faith in pursuing the spyware accusations and appellant was acting pro se, ordered each party to pay for their own expert's fees, and directed the discovery master to return any unused portion of the retainer. The judge also denied without prejudice appellant's application for counsel fees regarding defendant's filing of an allegedly fraudulent CIS in 2007.
Appellant filed a notice of appeal on August 27, 2009. As the order was interlocutory, we required him to file a notice of motion for leave to appeal, which we denied by order of December 21, 2009, and dismissed the appeal.
III. Reunification (second order on appeal)
On September 26, 2008, Judge Mega ordered that the boys be brought to the court for an in camera interview. By order entered on January 23, 2009, the judge directed the guardian ad litem to interview the parties and the boys, and make recommendations regarding the appropriate utilization of therapists in the reconciliation process. By order entered on May 11, 2009, the judge appointed Dr. Toby Kaufman as the family bonding therapist.
In March 2010, appellant filed a pro se motion for "summary judgment," seeking to vacate all prior orders, direct that any future parenting time be based on mutual agreement between him and the children, continue Dr. Kaufman's services, release Paglio's interview notes, appoint a parenting coordinator, terminate the services of the guardian ad litem and law guardian, and direct defendant to reimburse him for legal fees associated with her allegedly fraudulent May 2007 CIS.
In a supporting certification, appellant claimed defendant had engaged in "parental alienation." He acknowledged, however, he had succeeded in restoring his relationship with his eldest son, then nineteen years of age. He attributed his success to the fact that as his son matured, defendant was less able to manipulate his son, who became more distanced from the "influence of the legal process." Appellant admitted the twins did not want to see him and Dr. Kaufman had reported there was nothing she could do to foster reconciliation with them. Nonetheless, he sought the appointment of a parenting coordinator in order "to have a conflict resolution mechanism in place."
Defendant filed a cross-motion seeking counsel fees and costs. She asserted that appellant's relationship with the twins had deteriorated solely due to his "verbal abuse and poor treatment of the boys." Pitman, the boys' law guardian, submitted a certification opposing appellant's application to terminate his services, explaining that the boys "have expressed the need for continued protection but, more importantly, for them to have the ability to have their voices heard by the Court." He further reported the boys, then age nineteen and one-half and almost seventeen years old, were "irrevocably opposed" to the appointment of another parenting coordinator and felt they were "old enough to determine the extent of the relationship they wish to have with their father." Pitman stated further:
I do not understand how a parenting coordinator would even engage in this matter since at the present time there has not been a reconciliation of the twins with their father. Obviously, [the eldest] is seeing his father. . . . [H]e is engaged in therapy with his father. . . . Thus, I think a parenting coordinator would not be able to be effective in this situation. Again, I would point out that it seems to me that on the one hand, [appellant] wants the end of the Court's involvement as it relates to his relationship with his children, and on the other hand the benefits of court involvement, e.g., reconciliation therapist, parenting coordinator, etc.
Pitman also submitted certifications by the boys who strongly opposed termination of the law guardian and guardian ad litem's services, release of the specialist's notes, continuation of therapy, and appointment of a parenting coordinator. They expressed anger at being forced to participate in the legal proceedings, and believed that most of their problems with their father had been caused by his abuse of the legal system. The twins also strongly opposed any reunification with their father.
With regard to the termination of the law guardian and guardian ad litem's services, the eldest son stated, in pertinent part:
 As it stands right now, Mr. Pitman and Ms. Von Ellen are our (and yes, I am including myself in this) last defense against a man that neither of my brothers wishes to see. As my father ill-treated all of us, I still do not understand why the court is entertaining the whims of a man who clearly is using the Justice System as his own personal playground. Obviously, I reject this request as well.
 In addition, I would like to express my extreme anger that the court is still involving me in this process. I have made it abundantly clear over the past year and a half to all parties involved that I do [not] wish to have anything to do with this process anymore. I would also like to remind all parties, as they seem to have a very hard time remembering, that the only reason that I see my father is out of religious duty, and that I do not believe that either of my brothers would benefit from seeing him (again, visitation would, in fact, cause unnecessary stress).
One of the twins, stated, in pertinent part:  There is no reason for the current orders relating to my father's parenting time to be vacated. Frankly, I feel that if these orders were vacated my father would take this as an invitation to call me, email me, or even try to meet with me without my consent. All of these distractions would be unnecessary, and possibly even detrimental to my life in its current state.
 Under no circumstances am I agreeable to this [the sharing of correspondence, notes, interview notes or other records of the intervention specialists] with my father or others. The things that I have said to my therapist, and/or the court appointed therapists were said in confidence, and he has no right now or for that matter ever to hear or look at anything I said in any of these sessions. Him having any documents relating to the specifics would most likely only add fuel to the fire.
 I want nothing to do with Dr. Kaufman or any "reconciliation specialist[."] It is my wish that no parenting coordinator or any new therapist or social worker be put in her place. The last time that a parenting coordinator was put in place my father would just disregard anything she said, because she has no "real authority[."] That was of course nearly four years ago, and now, I wouldn't even be agreeable to meet with a therapist to speak about my relationship with my father. To speak more plainly, I will never have any interest in having any sessions with a therapist, court mandated or not, pertaining to my relationship with my father, with or without him present.
 Under no circumstances am I agreeable to have Bruce Pitman or Ms. Von Ellen's services terminated. Without [their] services it would be impossible, or nearly impossible to fight any decisions made in the courts. Moreover, without a Law Guardian or Guardian ad Litem, it would be even more difficult to get my opinion to be heard within the court. To be blunt without your services, I would be "up a creek, without a paddle[.]"
Similarly, the other twin said that if the court allowed appellant to have "unrestricted communication" with them, appellant would, as he had done in the past, inundate them with emails and phone calls, which would "no doubt, lead to the issue being brought back to the court." He strongly opposed the release of the notes of any of the therapists or specialists who had been involved in the reconciliation process, arguing that he had been told that "these notes were confidential and were not to be shared with anyone except the court." He also opposed seeing Dr. Kaufman, setting forth that he had "already seen her several times, and she has yet to sway [his] opinions on the matter in the slightest bit, so why would more meetings be any more effective?"
He also opposed the appointment of a parenting coordinator, explaining that he was "old enough and smart enough to make decisions about visitation with [his] father without the help of Dr. Kaufman or a parent coordinator." He further stated the:
Law Guardian and Guardian ad Litem, must not be removed as they were appointed to protect and represent me; the thought of them being removed scares me to death. Every moment that my father chooses to press these issues, he is further alienating himself from me. As it is I feel that I will never be able to have even the most restricted relationship with him; every moment that I am forced to feel uneasy about these issues strengthen my decision to not ever resume communication with him. And no "expert" is going to change my opinion about that.
In response, appellant submitted a certification in which he responded to each of the allegations in the children's certifications, pointing out inaccuracies. He also criticized Pitman for asking the children to write their own certifications, arguing that "[i]t is very unfortunate that by directly involving the children in the legal process, the reunification that the Court has been so desirous to achieve, has been, in fact severely imperiled." Appellant further blamed Pitman for the "severe setback" he had suffered in his relationship with his eldest son. Appellant said he sought "termination of legal involvement with [his] family[,]" but nonetheless, wanted the court "to put suitable mechanisms in place to resolve possible future problems."
During oral argument on the motions conducted before Judge James Hely on April 16, 2010, appellant advised he was relocating to Washington, DC and stated he did not want the court to compel the twins to visit him, but wanted to be able to contact them without restriction. He also wanted Dr. Kaufman to continue in her role as family bonding therapist in the event the twins decided to contact him at some future date. At the conclusion of the argument, the judge upheld the restrictions on appellant's access to the twins, holding he could only contact the twins by mail once a month, and could not unilaterally telephone or email them. The judge granted appellant's request to terminate the services of the guardian ad litem, denied appellant's request to terminate the law guardian's services, and terminated Dr. Kaufman's services as the family bonding therapist but permitted her to serve as a liaison for the twins to initiate contact with their father if they desired it. Additionally, the judge denied appellant's request for the production of the intervention specialist's interview notes. The judge also denied appellant's request for reimbursement of attorney's fees based on his allegation that defendant filed a fraudulent CIS in l997 and reimbursement of fees paid to the law guardian and guardian ad litem for defendant's purported bad faith throughout the litigation. The judge further denied appellant's request for an order requiring defendant to submit a new CIS. The judge signed an order on that same date.*fn3
IV. Reconsideration (third order on appeal)
Appellant moved for reconsideration. In response, one of the twins, submitted a certification, stating, in part:
I feel that the order . . . restricting my father's communicative abilities is both necessary and proper. While my father says that it is just "an irrational and unjustified concern of a 16 year old child" this is a false statement. This problem is not without precedent, as my father has indeed often times abused this system of unrestricted communication. He also stated that he should be able to talk with me at important times over the phone, such as before a surgery I was about to undergo. Frankly, when my mom handed me the phone and I heard his voice it caused me only stress, which I certainly did not need before a surgery. In respect to his notion that he may need to contact us in case of an emergency, it would be perfectly appropriate for him to contact my mother or brother and relay the message.
Although I am not my brother[,] I feel that I can say for all of us that we all need Mr. Pitman's services, because without them we have absolutely no defense against our father in the courts. I also feel that terminating these services for [my older brother] would set an undesirable precedent[.]
The other twin certified that most of the mental health professionals involved in the case had not recommended reconciliation, but rather recommended they "remain apart." He also stated that appellant had tried to "excessive[ly] communicat[e]" with them until the court entered an order limiting his contact. He wrote, "I would like to express how angry I am about this issue being brought up again, and so soon. As far as the reconciliation process goes, my father is quite adept at hindering it."
Judge Hely conducted oral argument on June 11, 2010, and denied the motion on the basis that appellant had failed to present any new facts or law to warrant reconsideration. The judge reiterated that the almost seventeen-year-old twins "are looking for some breathing space" and that all three boys want appellant to stop seeking relief from the court. The judge signed an order on that same date.
Appellant filed a timely appeal from portions of the orders entered on August 4, 2009 (spyware), April 16, 2010 (reunification), and June 11, 2010 (reconsideration).
On appeal he argues:
THE TRIAL COURT ERRED IN DISMISSING DEFENDANT'S COMPLAINT [ACCUSING PLAINTIFF OF WIRETAPPING AND INSTALLATION OF SPYWARE],
WHILE THE PLAINTIFF'S CLAIMS WERE PENDING ADJUDICATION.
POINT II: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S COSTS.
POINT III: THE REQUESTED RELIEF SHOULD BE GRANTED, OR THE DISCOVERY ALLOWED TO BE COMPLETED AND THE MATTER REMANDED.
POINT IV: TRIAL COURT ERRED IN NOT CONDUCTING FACT FINDING AND IN NOT STATING ITS CONCLUSION OF LAW.
POINT V: ALL PARENTING TIME RESTRICTIONS OF THE PLAINTIFF SHOULD BE VACATED AND ALL FUTURE PARENTING TIMES BETWEEN THE PLAINTIFF AND THE TWINS SHOULD BE BASED ON MUTUAL AGREEMENT BETWEEN THE PLAINTIFF AND THE TWINS.
POINT VI: THE INTERVENTION SPECIALISTS SHOULD PRODUCE ALL  DOCUMENTS, CORRESPONDENCE, INTERVIEW NOTES, ETC, IN REGARDS TO THEIR INVOLVEMENT IN THIS CASE.
POINT VII: A PARENT COORDINATOR SHOULD BE APPOINTED FOR THE BENEFIT OF THE CHILDREN AND THE PARTIES. POINT VIII: THE SERVICES OF THE LAW GUARDIAN WITH RESPECT TO [THEIR ELDEST SON] SHOULD BE TERMINATED.
POINT IX: THE DEFENDANT SHOULD REIMBURSE PLAINTIFF FOR HIS LEGAL FEES IN THE MATTER OF THE DEFENDANT'S FRAUDULENT CIS FILING.
THE DEFENDANT SHOULD SUBMIT HER TRUE, COMPLETE, AND ACCURATE FINANCIAL CASE INFORMATION STATEMENT.
POINT XI: THE DEFENDANT SHOULD BE RESPONSIBLE FOR THE GUARDIAN'S FEES STARTING OCTOBER 1, 2006. POINT XII: IF ANY PORTIONS OF THIS APPEAL [ARE] REMAND[ED], IT SHOULD BE RETR[IED] BY A DIFFERENT JUDGE.
Based on our review of the record and applicable law, we are not persuaded by any of appellant's arguments.
We first address appellant's arguments in Point IV, generally challenging the judges' purported lack of factual and legal findings supporting their rulings in the three orders, specifically with regard to reunification with his children. He also contends the judges, particularly Judge Hely, erred in improperly limiting the scope of his oral argument. We discern no error by either judge.
Courts are required in every motion decided by written order to make findings of fact and conclusions of law. R. 1:7-4(a). The trial court's recitation of the facts and the law under Rule 1:7-4(a) must be sufficient to allow appellate review. United Consumer Fin. Servs. Co. v. Carbo, 410 N.J. Super. 280, 313 (App. Div. 2009). The failure to comply with R. 1:7-4(a) "constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (internal quotation marks and citations omitted).
It is clear from the size and content of the appellate appendix that both Family Part judges reviewed substantial information and documentation in connection with the motions. Moreover, from their comments during the colloquy at oral argument and rulings we perceive they had substantial familiarity with the record and the history of the case. The transcripts also reflect that the judges provided appellant, who was appearing pro se, extensive oral argument during all three hearings, and in many instances, there was a continuing give-and-take with the court.
"[A] trial court has wide discretion in controlling the courtroom and the court proceedings." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). A litigant or attorney has limited time for oral argument, which is intended to highlight the salient issues raised in the brief or certification. A judge has the discretion during oral argument to preclude a party from rehashing issues and arguments already made or decided, repeating facts contained in the papers, addressing inconsequential issues, and constantly interrupting counsel and the court when they are speaking. Based on our review of the citations referenced in appellant's brief, it is clear that is when appellant was cut off from further argument.
Although some findings were more extensive than others, we are satisfied the judges carefully addressed each of appellant's requests for relief, and made findings of fact and conclusions of law sufficient to allow appellate review of material issues.
We next address appellant's challenge to the August 4, 2009 order contained in Points I, II, and III of his brief. He argues Judge Mega erred in granting defendant's motion to dismiss her claims for wiretapping and installation of spyware, in finding appellant's application for a declaration that he had not committed those acts was moot, and in failing to consider evidence from the discovery master that would have exonerated him. We discern no error.
Based on appellant's receipt of an email that defendant sent to her attorney pertaining to the reconciliation proceeding that was neither intentionally nor inadvertently sent to appellant, defendant filed the order to show cause in the Family Part seeking, in part, sole custody of the children, cessation of electronic communications between appellant and the children, a determination that he violated litigant's rights, and preservation of her right to file a separate civil action against appellant for violating the state Wiretap Act. Appellant opposed the motion and filed a cross-motion seeking a permanent order of protection, appointment of a parenting coordinator and reunification specialist, and reimbursement of expenses. Neither party filed a separate complaint in the Civil Part.
Investigation and discovery revealed that the Smiths, not appellant, had installed the spyware on defendant's computers. In response, appellant moved to dismiss defendant's spyware claims and sought a judicial declaration exonerating him. Defendant filed a cross-motion seeking to dismiss her claims against appellant with prejudice.
In granting defendant's motion, Judge Mega noted there was no cross-claim filed by appellant, and found defendant had the right to withdraw her affirmative claim, which mooted out his ability to make a finding that the problem was not caused by appellant or that he did not violate defendant's right of privacy. In other words, appellant's claim was "no longer ripe" in Family Court but "if [appellant] want[ed] to bring a claim in the Civil Division or however he may wish to proceed, that's up to him."
On appeal, appellant incorrectly argues that defendant's voluntary withdrawal of her claims was governed by Rule 4:37-1(b). Although Rule 4:37-1 is applicable to Family Part proceedings, Greely v. Greely, 194 N.J. 168, 175 (2008), it governs the voluntary dismissal of a complaint without prejudice, Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006), not the dismissal with prejudice of relief sought by a post-judgment motion.
The purpose of Rule 4:37-1 is "'to protect a litigant where a termination of the proceedings without prejudice will place him [or her] in the probable position of having to defend, at additional expense, another action based upon similar charges at another time.'" Shulas, supra, 385 N.J. Super. at 97 (quoting Union Carbide Corp. v. Litton Precision Prods., Inc., 94 N.J. Super. 315, 317 (Ch. Div. 1967)).
Rule 4:37-1 is inapplicable here because defendant did not seek to voluntarily dismiss "an action," but rather sought to withdraw a post-judgment matrimonial motion in which she sought, among other relief, preservation of her right to file a separate civil action at some future date. Rule 4:37-1 would only have been applicable if defendant had filed such a separate action, and then sought to voluntarily dismiss it.
Appellant's attempt to fit these proceedings within the confines of Rule 4:37-1 is unpersuasive. He did not file an "answer" or "counterclaim" as provided in Rule 4:37-1(a) and (b); he simply filed opposition to defendant's motion. Nor did he file a motion for "summary judgment" as provided in Rule 4:37-1(a). Appellant incorrectly captioned his post-judgment application as a motion for "summary judgment"; pursuant to Rule 4:46-1, a motion for summary judgment may be filed in response to a "pleading claiming such relief," and no such pleading was filed in this case.
Resolution of this issue is thus not governed by Rule 4:37-1, but rather by the court rules pertaining to Family Part motions. The court rules provide that unless otherwise provided in Rule 5:5-4, motions in the Family Part are governed by Rule 1:6-2. The rules do not require that a party must obtain the court's permission before withdrawing a motion. In fact, Rule 1:6-2(a) provides that "[i]f the motion is withdrawn . . . counsel shall forthwith inform the court." Thus, defendant did not need the court's permission to withdraw her motion, and accordingly, the court did not err in granting her application to dismiss it.
That being said, the question remains whether defendant's voluntary dismissal of her motion rendered moot appellant's requests for findings by the court. Judge Mega correctly concluded that it did.
It is well established that issues rendered moot by subsequent developments are outside the proper realm of the courts. See City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999) (courts do not resolve issues that have become moot due to intervening events). Appellant's citation to Aldrich v. Manpower Temp. Servs., 277 N.J. Super. 500, 505-06 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995), is distinguishable because it involved the withdrawal of an administrative complaint.
As Judge Mega appropriately found, defendant's dismissal of her wiretapping and invasion of privacy accusations against appellant mooted his defense in the Family Part action that he had not engaged in those activities. It would have been a waste of both the parties' and judicial resources for the court to have continued discovery or taken testimony from the master regarding the circumstances surrounding the installation of the spyware. This is particularly so, as the guardian ad litem argued, where this issue had no impact on the remaining issue before the family court, i.e., appellant's reunification with the children. Moreover, though dismissing the claims, the judge astutely directed the law guardian to inform the children that there was "no truth in the spyware accusations[,]" thereby presumably ameliorating any negative effect defendant's accusations would have had on their view of appellant.
Appellant, who was acting pro se throughout the spyware proceedings, sought counsel fees incurred in defending against the accusations, arguing defendant had acted in bad faith in pursuing the motion and had the ability to pay his fees. He certified that he had incurred an undisclosed amount of counsel fees, which were payable to an unnamed "out-of-state" attorney. During oral argument, he claimed that unnamed attorneys licensed to practice in New York had assisted him on "the issue of the depositions of the witness in New York[.]"
Judge Mega denied appellant's request, finding he was proceeding pro se and there "was no counsel of record" in the case. He also found no bad faith on defendant's part, noting she filed the motion because she believed she was entitled to relief and when, after a short period of discovery, she learned otherwise, she withdrew the claim.
We discern no abuse of discretion in the court's ruling. See Williams v. Williams, 59 N.J. 229, 233 (1971) (holding that the award of counsel fees and costs in a matrimonial action rests in the sound discretion of the trial court); R. 5:3-5(c). Appellant, acting pro se, was not entitled to recover counsel fees for his efforts in defending against the spyware allegations. See Appell v. Reiner, 43 N.J. 313, 316 (1964) (holding that generally only a duly admitted attorney of this State is entitled to recover compensation for legal services rendered). Moreover, to the extent appellant incurred some undisclosed amount of counsel fees, payable to some unnamed "out-of-state" attorney for work performed in New York, he still would not be entitled to recover those fees because he did not submit an affidavit of services as required by Rule 4:42-9(b). See Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:42-9 (2011) (noting the filing of such an affidavit "is ordinarily a prerequisite to an allowance under the rule"). Furthermore, "[p]rocedural rules are not abrogated or abridged by plaintiff's pro se status." Rosenblum v. Borough of Closter, 285 N.J. Super. 230, 241 (App. Div. 1995), certif. denied, 146 N.J. 70 (1996).
We turn now to appellants' arguments set forth in Points V through XI. We reject appellant's challenges to the April l6, 2010, order: (l) limiting his contact with his then almost seventeen-year-old twins to a monthly letter; (2) declining to appoint a parenting coordinator; (3) declining to terminate the services of the law guardian with respect to his then nineteen-and-one-half-year-old son; 4) declining to require production of the documents prepared by the intervention specialists; (5) declining to require defendant to be solely responsible for the guardian's fees as of October l, 2006; (6) declining to require defendant to reimburse appellant for his legal fees for her purportedly fraudulent 2007 CIS filing; and (6) declining to require defendant to file an updated CIS.
We also summarily reject appellant's challenge to the June 11, 2011 order denying reconsideration, as he was merely seeking a second bite of the apple. Appellant failed to satisfy the requirements of Rule 4:49-2 by demonstrating Judge Hely expressed his decision based upon a palpably incorrect or irrational basis, or obviously 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);
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. l990).
Appellant's eldest son is now twenty-one years of age and apparently has established some type of relationship with appellant. The twins are almost eighteen and one-half years of age. It is undisputed the twins have had very little relationship with their father since they were young despite professional intervention.
N.J.S.A. 9:2-4 provides that "it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage. . . ." Courts can, however, "continue to order custodial arrangements for children over the age of 18 of divorced or divorcing parents." Quinn v. Johnson, 247 N.J. Super. 572, 579 (Ch. Div. 1991). "[T]he mere attainment of the age of 18 does not deprive th[e] court . . . of making a custody determination." Id. at 580. See N.J.S.A. 9:17B-3 (noting an exception to the concept of majority in that the court has the right "to take any action it deems appropriate and in the interest of a person under 21 years of age").
Visitation issues, including a restriction of a parent's visitation rights, are determined on a best-interest standard, giving weight to the factors set forth in N.J.S.A. 9:2-4(c), which include "the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision[.]" V.C. v. M.J.B., 163 N.J. 200, 228, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); Finamore v. Aronson, 382 N.J. Super. 514, 522-23 (App. Div. 2006). Although a child's preference is not determinative in visitation matters, the "desires of older children may be entitled to stronger consideration than that afforded to younger children[.]" Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). Findings by the trial court are binding on appeal when supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
The record is replete with evidence of obsessive behavior by appellant and a desire to control every situation. In fact, in our reading of the transcripts we observed appellant's conduct during oral argument of having to get in the last word and picking apart every word uttered by opposing counsel and the court. The experts, as well as appellant's adult sons, expressed the well-founded concern that if appellant had unlimited access to the twins, he would "shower" them with emails, texts, and phone calls. Judge Hely was amply justified within his parens patriae function to continue to provide judicial protection for the twins. He fashioned a remedy, within his discretion, that would do so by leaving the door open for reconciliation. Accordingly, the judge permitted appellant to initiate limited contact with his sons through one letter a month, and left it up to them, as adults, to commence further contact with their father with the assistance, if they desired, of Dr. Kaufman, the family bonding therapist. We are satisfied the judge's ruling gave due regard to the expert and lay testimony, and took into consideration the best interests of the twins in view of the sad facts and tortured history of this case.
Contrary to appellant's assertion, the record does not demonstrate that the twins' views were attributed to defendant. The court-appointed experts attributed the deterioration in appellant's relationship with his children directly to his own conduct. In January 2007, the evaluator Dr. Cantor only found that defendant harbored strong anger and resentment toward appellant of which the children would presumably have been aware, and in July 2008, Paglio, the intervention specialist, found no evidence that defendant had interfered with the relationship.
We also find no error by Judge Hely in declining to appoint a parenting coordinator considering the age of the boys. R. 2:11-3(e)(1)(A), (E).
Although the issue is most likely moot at this point as the parties' eldest son is now twenty-one years old and probably emancipated, for the sake of completeness, we address and reject appellant's assertion of error by Judge Hely in failing to terminate the services of the law guardian for him, discussed in appellant's Point VIII.
Numerous times throughout these proceedings, appellant sought to terminate the services of both the law guardian and the guardian ad litem, who had been in place since 2004. In April 2010, Judge Hely granted appellant's request to terminate the services of the guardian ad litem, but denied his request to terminate the law guardian. The judge found that although the parties' eldest son was then "past the age of 18, he is not emancipated."
A law guardian acts as an independent legal advocate for the child and takes an active part in the court proceedings. In re M.R., 135 N.J. 155, 173-75 (1994). A law guardian has a duty to "zealously advocate" the child's cause, while protecting the child's interests. In re Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App. Div.), certif. denied, 152 N.J. 12 (1997). Thus, "[l]aw guardians are obliged to make the wishes of their clients known, to make recommendations as to how a child client's desires may best be accomplished, to express any concerns regarding the child's safety or well-being and in a proper case to suggest the appointment of a guardian ad litem." Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div.), certif. denied, 174 N.J. 39 (2002).
The decision whether to appoint a law guardian is left to the discretion of the trial judge. See R. 5:8A. However, Rule 5:8A does not establish when the responsibility of a court-appointed law guardian terminates.
Plaintiff argues that a law guardian's services should terminate when the child attains the age of eighteen. We disagree. Certainly, the age of majority in New Jersey is eighteen. N.J.S.A. 9:17B-1 to -3. See Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 594-95 (1992). However, issues regarding support, custody, and visitation of children who are older than eighteen are often resolved by post-judgment motion in the family courts. That is so because emancipation, or the "conclusion of the fundamental dependent relationship between parent and child--is not a self-executing principle." Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). Attainment of the age of majority -- eighteen -- establishes prima facie, but not conclusive, proof of emancipation. Gac v. Gac, 186 N.J. 535, 542 (2006). Emancipation is reached "when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).
Rule 5:8A provides for the appointment of a law guardian in "all cases where custody or parenting time/visitation is an issue[.]" Because Family Part courts can continue to order custodial, or visitation arrangements for children over the age of eighteen of divorced or divorcing parents, Quinn, supra, 247 N.J. Super. at 579, we discern no abuse of discretion by the Family Part judge in this instance who retained the law guardian for a young adult who had reached the age of eighteen but, along with his brothers, was still subject to a protracted visitation dispute. The eldest son, who was then twenty years old, was attending college, and was, as the court found, not emancipated. Further, he both wanted, and needed, continued representation by the law guardian because several of appellant's post-judgment requests directly affected him, including appellant's request for release of the intervention specialist's notes, appointment of a parenting coordinator, and vacation of prior orders. The law guardian appropriately responded to those requests and acted as an advocate for the eldest son's interest.
We next address appellant's Point VI argument of error by the court in denying his application for the release of notes taken by the intervention specialist during her interviews with the children and any documents generated by her in this case.
Copies of Paglio's July and August 2008 reports were released to the parties and to father's therapist under a protective order. Dr. Kaufman, who was subsequently appointed as a family bonding therapist, requested copies of all reports submitted by mental health professionals and, over appellant's objection, received a copy of Paglio's reports in September 2009. After the release, appellant sent the court a letter asking the court to allow him to depose Paglio and to subpoena the material she used in preparing her report.
In April 2010, appellant filed a motion seeking "copies of all the documents, correspondence, interview notes, etc[.], in regards to the Intervention Specialist's involvement in this case." He claimed defendant had used Paglio's reports to "adversely influence Dr. Kaufman's opinion" and he should be "given the opportunity to dispute the information/conclusions of the reports and to seek clarification on ambiguous information." The children filed certifications strongly opposing the application, setting forth that their discussions with the intervention specialist had been made in strict confidence, and that release of the notes to their father "would most likely only add fuel to the fire." Judge Hely denied appellant's request.
Rule 5:3-3(f) provides that:
Any finding or report by an expert appointed by the court shall be submitted upon completion to both the court and the parties. At the time of submission of the court's experts' reports, the reports of any other expert may be submitted by either party to the court and the other parties.
The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.
Further, Rule 4:10-2(a) provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]" Relevant evidence is defined in N.J.R.E. 401 as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Rule 4:10-2(d) sets forth the procedure for discovery of "facts known and opinions held by experts[.]"
Pursuant to the court rules, appellant was entitled to a reasonable opportunity to conduct discovery of Paglio, the court-appointed expert. Rente v. Rente, 390 N.J. Super. 487, 493 (App. Div. 2007). We apply an abuse of discretion standard to decisions made by trial courts relating to matters of discovery. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
Paglio's reports were submitted to appellant in 2008, and thus he had ample time to seek copies of her notes and other documents and depose her. Had appellant deposed Paglio, as he had a right to do, he could have challenged the accuracy of what she reported the children had said by using her notes of the interviews and other documents. R. 5:3-3(f). The notes and documents would have been relevant, and were not otherwise privileged. However, instead, in 2008, appellant allowed Paglio's reports to be submitted unchallenged to the court. Appellant also waited until 2009, after Paglio's report had been released to Dr. Kaufman, to first seek this information. Accordingly, appellant's 2010 discovery request was untimely.
Moreover, appellant has not pointed to any specific inaccuracies in Paglio's reports. It is certainly unclear what role, if any, Paglio's reports had on Dr. Kaufman's evaluation, given that Dr. Kaufman "assured" the guardian ad litem she did not need that specific report, and given that Dr. Kaufman conducted her own independent interviews with the parties. Thus, even if appellant had successfully challenged Paglio's reporting of the children's statements, such inaccuracies may have had very little effect on Dr. Kaufman's conclusions.
Moreover, it is unclear what weight the court placed on either Paglio's or Dr. Kaufman's conclusions in rendering its decision regarding the restrictions on appellant's access to the twins, which had been in place since 2006, before Paglio submitted her reports to the court, and before Dr. Kaufman's conclusions were conveyed to the court during oral argument. In rendering its decision, the court primarily relied on the children's expressed preferences, finding that "it was absolutely critical for me to have Mr. Pitman reach out to the boys and find out what their present attitude was." Therefore, given the children's expressed preferences, any inaccuracies in Paglio's report, as possibly relied on by Dr. Kaufman, would have had very limited effect.
Balanced against that limited effect, if any, was the very real harm to the boys that would occur upon the release of the notes and documents. In fact, in discussing the psychologist-patient privilege, which is not applicable here, our Supreme Court has cautioned that "[m]ade public and taken out of context, the disclosure of notes from therapy sessions could have devastating personal consequences for the patient and his or her family, and the threat of such disclosure could be wielded to unfairly influence settlement negotiations or the course of litigation." Kinsella v. Kinsella, 150 N.J. 276, 330 (1997). Certainly here, it can readily be inferred that comments made by the children to Paglio would be wielded by appellant not only in this litigation but in further dealings with his sons.
We next dispose of appellant's challenge to Judge Hely's denial of his request for reimbursement of attorney's fees for defendant's alleged filing of a fraudulent CIS in 2007 in Point IX, and denial of his application to compel defendant to be solely responsible for the law guardian's fees from October 2006 in Point XI.
In May 2007, appellant, then represented by Laurie Bernstein, a New Jersey attorney, filed a motion for reconsideration of the court's order continuing the suspension of his parenting time. Defendant filed a cross-motion seeking counsel fees, supported by a certification and CIS listing her unearned income and net worth. Appellant claimed the CIS grossly misrepresented the true extent of defendant's wealth. The court denied defendant's cross-motion for counsel fees without prejudice, finding:
Here there are disputed issues of fact concerning both the financial circumstances of the parties and whether each has engaged in bad faith. [Appellant] says [defendant's] income is [$]500,000 a year and that she has failed to disclose all her assets and produce accurate and complete documentation. He also says that she failed to produce the K-1's. [Appellant] therefore concludes that [defendant] has not given the Court an honest report of her financial circumstance.
Even if this Court finds that one has the ability to pay and the other ha[s] the financial need, there still exists the heated dispute about whether either party engaged in bad faith. They both blame each other for the status of the . . . relationship between the plaintiff and the boys. This Court would be in a better position to assess the requests for counsel fees after it has the benefit of the final reports from the mental-health experts and perhaps testimony of the parties. If this matter ultimately reaches a plenary hearing on the plaintiff's parenting time, then at that hearing the parties may renew requests for counsel fees, and the Court would consider testimony on that subject and make findings of fact concerning the issues of financial need as well as bad faith. If a plenary hearing is not needed on the parenting-time issue . . . and if the parties still wish to pursue a claim for counsel fees, then a request for a plenary hearing can be made for that limited purpose I'll make findings of fact concerning . . . financial need as well as bad faith.
Two years later, appellant pro se, filed a motion in the spyware proceedings, seeking $3740 in fees and costs he incurred in defending against defendant's 2007 cross-motion. He attached to his motion an affidavit of services, prepared by Bernstein, in which she detailed the time spent in responding to defendant's previous application for counsel fees.
In denying appellant's application for counsel fees without prejudice, Judge Mega found that in 2007 the court had determined that there existed a "heated dispute as to whether either party engaged in bad faith[.]" That did not, however, mean defendant's bad faith in filing an allegedly fraudulent supporting CIS, but rather, meant bad faith in pursuing or defending the post-judgment motions. Thus, Judge Mega found that appellant's application for counsel fees was not appropriate at that time because:
[B]ased on everything that [the trial court previously] said, this Court having not completed the reunification process, having not had the benefit of a report to determine whether there's a [need for a] plenary hearing, and seeing that the fact that documentation may have been missing at the time, it's over two years, it's beyond the reconsideration period for what [the prior court] did, this ultimately may have to be decided when it's determined if a plenary hearing is to occur and if the plenary hearing occurs how counsel fees should be interpreted at that time. And at that time, the motion would be appropriate.
In March 2010, appellant filed a motion in the reunification proceedings again seeking, among other relief, the $3740 in counsel fees he incurred in 2007 in defending against defendant's "frivolous motion for counsel fees." In denying the application, the court summarily found the CIS was not fraudulent and inaccurately noted that appellant was pro se, perhaps inadvertently focusing on his pro se representation in the spyware case and forgetting that appellant had been represented by Bernstein in 2007. Nonetheless, we are satisfied the court did not err in denying appellant's request for counsel fees, albeit for different reasons. See State v. McLaughlin, 205 N.J. 185, 194-95 (2011) (noting that an appellate court may consider a basis different than the trial court to sustain the trial court's evidential ruling); Isko v. Planning Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968) ("It is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance.").
In awarding counsel fees, courts consider the bad faith of a party. N.J.S.A. 2A:34-23. Bad faith can be established by the "intentional misrepresentation of facts or law" to avoid or unfairly limit equitable distribution or alimony. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992). See Brown v. Brown, 348 N.J. Super. 466, 474 (App. Div.) (defendant acted in bad faith in misrepresenting his income and assets subject to equitable distribution), certif. denied, 174 N.J. 193 (2002).
However, even if it were established that defendant engaged in bad faith in misrepresenting her assets on her 2007 CIS, in order to obtain counsel fees, those alleged misrepresentations, given the circumstances of this case, did not, as Judge Hely found, rise to the level of warranting an award of counsel fees and costs in 2010. First, appellant was not ordered, based on the allegedly fraudulent CIS, to pay defendant's counsel fees. Instead, in 2007, the court denied defendant's application without prejudice pending completion of the reunification proceedings, at which time the court said it would review the financial circumstances of the parties and would make findings of fact on the good or bad faith of the parties in pursuing the post-judgment motions.
In 2010, the court upheld all of the parenting restrictions that had been imposed on appellant, in accordance with the children's preferences, and as recommended by every court-appointed expert. In fact, there was ample evidence in the record that the primary reason for appellant's estrangement from the twins, which necessitated the extensive post-judgment litigation, was his own conduct, and not any bad faith on defendant's part. Further, there was evidence both parties had the earning ability and financial resources to pay counsel fees and costs. And, clearly, defendant who was represented by counsel throughout these proceedings, had incurred much greater fees than appellant, who was pro se since 2007. Thus, a balancing of the Rule 5:3-5(c) factors supports the denial of appellant's application for fees incurred in 2007.
Our analysis is similar regarding appellant's claim that defendant should have been solely responsible for the law guardian's fees. In denying this relief, Judge Hely found that "the fees of both the law guardian and guardian ad litem have been essential to this case, and have been done in good faith to attempt [to assist] the parties to deal with their family situation."
Rule 5:8A provides that "[c]counsel may, on an interim basis or at the conclusion of the litigation, apply for an award of fees and costs with an appropriate affidavit of services, and the trial court shall award fees and costs, assessing same against either or both of the parties."
Here, the parties had been ordered, since the law guardian's appointment in 2004, to equally share payment of the fees. As discussed throughout this opinion, appellant did not demonstrate sufficient "bad faith" on the part of defendant to warrant a change in that order. Furthermore, most of the law guardian's fees were incurred in representing the children regarding applications brought by appellant, not defendant.
Appellant argues in his Point X that Judge Hely erred in denying his application to compel defendant to submit a complete and accurate CIS. He claims he recently learned that defendant's financial circumstances have changed because she is now employed as a caterer.
The court appropriately denied appellant's request on the basis that he had not filed an application for modification of alimony or child support based on changed circumstances. Defendant was not required to file an updated CIS because there were no issues before the court as to custody, support, alimony or equitable distribution. R. 5:5-2(a).
As we have directed no remand, we need not address appellant's Point XII requesting a rehearing by a different judge.