July 13, 2012
BRIAN MORRIS, PLAINTIFF-APPELLANT,
MARTINE WIXTED, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-002528-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2012
Before Judges Payne and Reisner.
Plaintiff Brian Morris (father) appeals from a September 15, 2011 order of the Family Part, ordering him to pay $49,627.25 in counsel fees to defendant Martine Wixted (mother).*fn1
The parties, who were never married, have one daughter who was born in March 2006 in Ireland. The September 15 order followed a bitter custody battle which concluded when plaintiff finally agreed that defendant, an Irish citizen, could return to Ireland with the parties' child. In addition to awarding counsel fees, the September 15 order resolved in defendant's favor a dispute over which school the child would attend in Ireland, where she was, by that time, residing with defendant. Plaintiff earns about $300,000 a year as an accountant in the United States. Defendant earns about $40,000 as a school teacher in Ireland. Finding no abuse of the trial court's discretion in awarding a counsel fee or in the amount awarded, we affirm.
The history of this case paints a regrettable picture. It began with an order to show cause (OSC) that, among other things, abruptly switched residential custody of the parties' four-year-old child from defendant to plaintiff, based on plaintiff's emergent ex parte order to show cause. See Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005); Fusco v. Fusco, 186 N.J. Super. 321, 327-28 (App. Div. l982). The April 9, 2010 OSC was based on plaintiff's certification, which, viewed objectively, contained the emotion-laden hyperbole unfortunately seen too often in matrimonial litigation. In his certification, plaintiff claimed that defendant was a flighty individual who had an unstable lifestyle in Ireland. He alleged that she planned to "kidnap" their child, move her from Hoboken, where they allegedly had a settled life together, back to Ireland, where defendant allegedly planned to supplement her income by reading Tarot cards.
His certification stated that "defendant and I had a child who was born [in March] 2006 in Ireland and lived together continuously in New Jersey from June 2009 until October 2010." [emphasis added]. The underlined portion was demonstrably false, and in fact the certification later attested that defendant moved out of "the premises" (i.e., plaintiff's Hoboken residence) with their child and moved into her own apartment "in October of 2009." He also represented that defendant had then moved out of her apartment and was irresponsibly living with a boyfriend of whom plaintiff disapproved.*fn2 The reality was quite different.
As defendant was eventually able to place before the court in her own certifications, she had been employed as a school teacher in a small town in Ireland for twenty-five years and was still so employed, although she was on a leave of absence. She and plaintiff, who had dual Irish and American citizenship, had a child together in Ireland in 2006. She had sole residential custody of the child, but plaintiff regularly came to Ireland to visit, and defendant also visited the United States so the child could see plaintiff.
On July 3, 2009, defendant took a one-year leave from her teaching job and came to the United States with the child on a tourist visa. She and the child lived with defendant in Hoboken until mid-October 2009. During that time, defendant developed a romantic relationship with one of plaintiff's friends, William Squier. She and the child moved out of plaintiff's house and moved in with Squier, and defendant married Squier on January 23, 2010. However, defendant did not reveal the marriage to plaintiff until February 2010.
On April 9, 2010, plaintiff filed his OSC. Without specifically stating that defendant had ever threatened not to let him visit the child in Ireland, plaintiff expressed a generalized fear that if she and the child returned to Ireland, he would never see the child again. Instead of waiting to hear from both sides, the Family Part judge not only ordered defendant to surrender her passport and keep the child in the United States, but he also abruptly ordered a change in custody of the four-year-old child. Defendant, who at that point was represented by an immigration attorney, filed a certification on April 21, 2010 explaining her situation, and promising to keep the child in the United States. However, because the original Family Part judge was on vacation, defendant's application for a return of the child to her custody was not heard until May, when custody was returned to her.
On June 24, 2010, the parties appeared for a case management conference before the original Family Part judge and entered into a consent order confirming primary residential custody of the child with defendant and setting a visitation schedule. The parties then went to mediation and, by consent of the parties, they, the child, and defendant's husband were evaluated by a child custody expert who rendered a best interests evaluation strongly recommending that the child be permitted to return to Ireland with defendant. The parties then entered into another consent order on July 14, 2011, in which they agreed to joint legal custody of the child with defendant as the parent of primary residential custody. Plaintiff consented to defendant returning to Ireland with the child, conditioned on plaintiff having "significant, enforceable parenting time." They agreed that his parenting rights would be enforceable in Ireland as well as the United States.
Because plaintiff objected to the Irish school in which defendant planned to enroll the child beginning in September 2011, the parties agreed in the consent order "to submit the issue to Judge Coleman to decide on the papers." They also agreed to submit to Judge Coleman their respective requests for counsel fees. Accordingly, defendant's counsel submitted a detailed fee application.
On September 15, 2011, Judge Claude Coleman, who had taken over the case from the original Family Part judge, heard oral argument on the issues of the child's school and the fee application. By that time, defendant and the child had returned to Ireland. Based on the evidence placed before him, Judge Coleman considered that defendant "has been the primary caretaker of the child and . . . she has been involved with the [Irish] school system for over twenty-five years." Both the school defendant chose and the one plaintiff preferred had been favorably evaluated by the Irish Department of Education and Science, whose Whole School Evaluation reports were submitted to the court. Both schools taught their students Gaelic as well as English. The judge determined that the school defendant chose was "a good school" and plaintiff had not shown that it was an inappropriate choice for their child.
In awarding counsel fees, the judge acknowledged the enormous disparity in income between plaintiff, who earned on average $300,000 a year, and defendant, who earned about $40,000 a year when she was working. He also considered that defendant had lost two years of salary, including the time during which "she was required to stay here and to defend this matter." He further found the hourly rate charged by defendant's certified family law attorney was "not unusual." The judge also "went over the . . . hours . . . that [the attorney] listed, and [found] those to be reasonable also and necessary."
We review Judge Coleman's decision to award counsel fees for abuse of discretion. Elkin v. Sabo, 310 N.J. Super. 462, 474-75 (App. Div. 1998). We will disturb a trial judge's award of fees "only in the clearest case." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000); see Rendine v. Pantzer, 141 N.J. 292, 317 (1994). We find no abuse of discretion here.
Defendant was an Irish citizen living in Ireland with the couple's child, who was born there. She and the child had always lived in Ireland. As plaintiff must have been well aware, defendant came here on a temporary visa, after taking a leave of absence from her job in Ireland. The fact that plaintiff hoped she would relocate here permanently, perhaps in a renewed romantic relationship with him, did not affect her right to return with the child to Ireland.
We can understand plaintiff's distress when he suddenly learned that defendant had married someone else, apparently a friend of his. But his response was extreme and inappropriate. His ex parte application, which resulted in the change of custody of a four-year-old child without a hearing, was based on misrepresentations, half-truths, and innuendo. Nowhere in the certification did plaintiff attest that defendant threatened to deny him visitation if she and the child returned to Ireland. And he failed to inform the court that over the years, plaintiff had routinely allowed him to visit the child in Ireland. Once he obtained custody of the child, he severely restricted defendant's access to her.
As a result of plaintiff's "take no prisoners" approach, defendant was forced to remain in the United States with the child for another year while the case was litigated. Further, even after he agreed that defendant and the child could relocate to Ireland, he waged a final battle to prevent the child from attending the school defendant chose.
On this record, we find no abuse of Judge Coleman's discretion in awarding a counsel fee under the standards set forth in Rule 5:3-5(c). In light of his findings concerning the hourly rate, number of hours billed, and overall fee sought, there is no basis to disturb the fee award.
Plaintiff's reliance on Rule 5:7-2(a), as construed in Roberts v. Roberts, 388 N.J. Super. 442, 453 (Ch. Div. 2006), is misplaced. Rule 5:7-2 requires the filing of a case information statement (CIS) on applications for pendente lite support. The Rule did not apply here, and there was no need to require defendant to file an updated CIS before awarding a counsel fee. Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).