November 14, 2012
MESERET TAMIRIE, PLAINTIFF-APPELLANT,
ABIY YACOB, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-1141-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2012
Before Judges Sabatino and Fasciale.
In this appeal involving the parents of two children, plaintiff Meseret Tamirie ("the mother") contests various orders issued by the Family Part. In particular, the mother seeks review of orders (1) allowing defendant Abiy Yacob ("the father") to recoup from her $719.10 in airfare costs that he expended on a planned holiday trip intending to visit the children, and (2) compelling her to reimburse the father the sum of $4079, representing a portion of his counsel fees. We affirm.
The parties, who were never married, have twin daughters. As of the time of the filing of the mother's appellate brief in April 2012, the daughters were eight years old. The daughters reside with the mother in New Jersey. The father resides in California, and he has been granted parenting time with the daughters. He also has been judicially granted access to the children through telephone and electronic means.
As the trial court found, the mother has resisted the father's efforts to maintain contact with the daughters. Although the mother maintains that such contact is harmful to the daughters, the court did not find that her assertions in that regard were justified. Without detailing here the entire history of incidents and ensuing motions over parenting time issues, the record indicates that the mother has repeatedly interfered with the father's attempts to spend time with the daughters.
The airfare reimbursement directive stemmed from the mother's unilateral cancellation of parenting time that the father had been scheduled to have in New Jersey with the daughters in December 2010. The relevant background can be summarized as follows.
In October 2010, the mother filed an order to show cause with the Family Part seeking to block the father's parenting time, based upon accusations that he was causing the daughters emotional distress. Although the trial judge initially accepted those accusations and suspended the father's planned visit that month with the children, on further reflection the judge found at a hearing on November 12, 2010 that there was "no direct proof that correlates the behavior and the emotional outbursts of the children to the father."
The judge ordered a best-interests evaluation of the children and, in the meantime, reinstated the father's parenting time. As part of that ruling, the judge authorized the father to visit with the children during the Christmas holidays in December 2010.
The judge further ordered on November 12, 2010 that the mother reimburse the father a $500 portion of his incurred counsel fees. In that respect, the judge observed:
I am concerned with the motions to reconsider the motions to reconsider, the multiple filing of the time lines and waiting [until] the week of the planned visit [for October 2010] which he already purchased the ticket for and lost money as a result of, when the order was issued on September 16th. And as I expressed in my opening remarks, it does appear to me that there is some interference with parenting time. It happened in May, it happened in October, and as pointed out by counsel, the teacher's letter that the [c]court was concerned with predated those motions and should have been filed with the prior motions.
At the same time, balancing that with affordability, I am concerned that the [mother's] unemployment makes her unable to afford to pay the full bill, which, according to counsel's certification, is in excess of $2800. But I think that . . . I need to send the message that you cannot keep filing motions to reconsider motions to reconsider, and interfere with parenting time.
So I'm going to order a $500 legal fee to be paid by the [mother] to the [father's] attorney.
Relying on the court's authorization, the father purchased a round trip plane ticket, departing from California on December 24, 2010 and returning from New Jersey on December 29, 2010. However, after the father landed in New Jersey on Christmas Eve, the mother unilaterally cancelled his parenting time and made the children unavailable. The father visited with his own parents, but he was unable to see his daughters on the trip. The mother also prevented him from having webcam and telephone communications with the children, even though such contacts had been authorized by the court.
These events prompted the father to file a motion in aid of litigant's rights to enforce his parenting time, which the mother opposed. The motion was heard and decided on April 1, 2011. The mother contended that she had thought the children's visits with the father had been suspended until the best-interests evaluation had been completed. The judge rejected that contention, finding that the mother had willfully and knowingly deprived [the father] of this parenting time [in December 2010] and did not inform [the father] that he would not be receiving his parenting time until he had already landed in New Jersey, [and so] she should be responsible for the incurrence of the airline fees by [the father]. The fact that [the father] luckily has family in New Jersey and was able to spend time with his parents does not discount the fact that he was deprived of his parenting time.
Consequently, the court directed that the mother reimburse the father $719.10 for his December 2010 airfare.
The trial court's April 1, 2011 ruling also addressed the issue of counsel fees. The court found the mother in violation of the father's litigant's rights because she failed to comply with the November 12, 2010 order directing her to pay $500 to the father's counsel. Moreover, the court granted the father's request for additional counsel fees and costs incurred as a result of having to file the enforcement motion. Specifically, the court ordered that the mother pay an additional $2739 to the father's counsel in $200 installments beginning April 18, 2011 because the mother had "clearly acted in bad faith."*fn1
The mother then moved for reconsideration of the April 1, 2011 order. She also filed an order to show cause, seeking to suspend the father's overnight parenting time. The court denied that application without prejudice because "the purported harm is not irreparable, nor [is it] emergent." Meanwhile, the father cross-moved to allow his airfare reimbursement to be deducted from child support.
On May 13, 2011, the trial court issued an order granting the father's request that the $719.10 in airfare owed by the mother be offset against the father's obligation to furnish the mother with weekly daycare payments. The court also ordered that the mother pay the $2379 in counsel fees accrued preceding the April 1, 2011 hearing in $200 monthly installments. It further ordered that the mother pay an additional $840 in counsel fees (a portion of the $1245 in fees accrued by the father following the April 1, 2011 hearing) because: [t]he [c]court finds that [the mother's] [n]notice of [m]otion for [r]econsideration was filed in part in good faith in that there were amendments that needed to be made to the April 1st, 2011 [o]rder.
However, the remainder of [the mother's m]otion was not made in good faith, with [the mother] making requests that she has made repeatedly in the past, but been denied. [The mother] cannot continue to make the same requests simply because she is dissatisfied with the prior result, thus causing [the father] to incur counsel fees to defend her [m]otions.
As a result of these findings, the mother was ordered on May 13, 2011 to pay the father a total of $3619 in counsel fees in $200 monthly installments. The court indicated that it had duly considered the mother's financial issues, noting that she had been "ordered to pay the partial counsel fees which [were] reduced from a full counsel fee award in consideration of [the mother's] unemployment at the time . . . ."
On May 16, 2011, the court issued an order further modifying the
awarded counsel fees to correct for a mathematical error.*fn2
As a result of that correction, the mother was ultimately
required to pay the father $4079 in counsel fees.
On appeal, the mother contends that the trial court erred in granting the father reimbursement of his December 2010 airfare and counsel fees. Among other things, the mother argues that in imposing these obligations upon her, the court failed to take into account her poor financial circumstances.
After this appeal was filed, the trial judge issued a written amplification of reasons pursuant to Rule 2:5-1(b). In particular, the judge reiterated that she had "addressed the [mother's] limited ability to pay by reducing fees from the total requested and by allowing the [mother] to pay in $200 per month installments." The judge also provided a supplemental Rule 5:3-5(c) analysis, discussing the various factors she had considered in determining the counsel fee amount. The judge noted that she had reviewed the parties' Case Information Statements, ultimately determining that "the parties had comparable abilities to pay fees, based upon historic earnings, including each party having been unemployed at times."
The judge further observed that the mother's recalcitrance "was the overwhelming factor in the [c]court's decisions to award legal fees. More particularly, the [mother] has failed to show good faith in that she has been found in violation of litigant's rights in multiple provisions of multiple [o]rders[.]" As the judge summarized it: [t]he foregoing factors, particularly, the bad faith actions of the [mother] in her obstinate refusal to abide by [o]rders regarding parenting time and other issues, weighed heavily in the [c]court's decision to award fees to the [father's] attorney.
While the [c]court also found that the [mother's] ability to pay was limited, the fees requested were reduced from the amounts requested, and the [mother] was permitted to pay in installments. As set forth at the oral argument on November 12, 2010, the [c]court felt the need to send a message that the [mother] could not repeatedly file motions to reconsider without new evidence and interfere with parenting rights, but tempered the message with a reduced fee.
We discern no legal or equitable basis to disturb the trial judge's rulings.
The airfare reimbursement directive should be sustained for several reasons. First, although the mother alludes to the airfare issue in her brief, she does not provide any legal explanation as to why the father should not be able to offset that cost. Given that lack of proper briefing, the issue may be deemed waived. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2012); see also Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011). Moreover, the airfare reimbursement has already been accomplished through offset in child support payments, thereby mooting the issue. De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (noting the judiciary's reluctance to consider moot issues); Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 319 (App. Div. 2010) (declining to address the merits of a dispute that had become moot). The father has fully recouped the money for the airfare, and, therefore, a vacating by this court on that decision would have "no practical effect" on the case. Id. at 311 (emphasis added).
Even if we chose to address the merits of the airfare reimbursement directive, the record provides ample justification for that decision. As the trial judge aptly found, the mother's last-minute cancellation of the father's December 2010 parenting time was unjustified and caused him to incur an unnecessary expense. We defer to that finding. See Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("[B]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.").
The counsel fee award was likewise warranted. The Family Part may award counsel fees to a successful litigant. R. 5:3-5(c); R. 4:42-9. In determining whether to award fees, the court should consider:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
In reviewing a decision to grant, modify, or deny such counsel fees in Family Part matters, we accord substantial deference to the trial court. See Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004); see also Williams v. Williams, 59 N.J. 229, 233 (1971).
The trial court has provided extensive and cogent explanations for its decision to award counsel fees to the father in this case, both in its various orders and in its supplemental post-appeal amplification letter. The court plainly took the mother's financial circumstances into account, both in awarding only a portion of the fees requested by the father and in allowing the mother to pay those fees through modest installments. The court also reasonably took into account its finding that the mother had acted in bad faith in disobeying prior court orders and in resisting the father's parenting time.
The mother's present assertion that she herself has incurred over $2000 in legal fees in this matter*fn3 is of no moment. There is no indication that the mother submitted such proof to the trial court. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:5-4 (2012) ("It is, of course, clear that in their review the appellate courts will not ordinarily consider evidentiary material which is not in the record below . . . ."). Even if she had done so, there is no reason to conclude that such proof would have overcome the strong grounds for fee shifting cited by the trial judge, particularly the need to deter the mother's bad faith conduct.
We accordingly sustain the award of counsel fees to the father, substantially for the sound reasons identified by Judge Colleen M. Flynn, as amplified in her supplementation letter dated July 6, 2011.