Opinion
DOCKET NO. A-2859-14T2
04-13-2016
P.V.P., Plaintiff-Respondent, v. F.J.C., Defendant-Appellant.
August J. Landi argued the cause for appellant. Michael J. Gunteski argued the cause for respondent (The Law Offices of O'Toole & Gunteski, LLC, attorneys; Mr. Gunteski, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0449-09. August J. Landi argued the cause for appellant. Michael J. Gunteski argued the cause for respondent (The Law Offices of O'Toole & Gunteski, LLC, attorneys; Mr. Gunteski, on the brief). PER CURIAM
This is a post-judgment matrimonial matter. It involves modification of parenting time and custody of the parties' son J.C., born in June 2008. By leave granted, defendant F.J.C., who is J.C.'s father, appeals from the Family Part's September 5, 2014 order denying reconsideration of two orders entered on February 14, 2014. Those prior orders required defendant to pay plaintiff P.V.P. $25,000 in attorney fees as a condition of scheduling a plenary hearing on his modification motion. The hearing was first ordered in May 2012; at the time, a different judge found that a significant change in circumstances justified the hearing.
Having considered defendant's arguments in light of the record and applicable principles of law, we conclude the court lacked sufficient grounds to award the $25,000 fee and erred in ordering the fee payment as a condition of scheduling the plenary hearing. Conditioning the plenary hearing on defendant's paying this fee effectively blocked the hearing, which disserved the interests of both defendant and J.C. We therefore reverse the $25,000 award and remand with instructions to conduct the plenary hearing within ninety days.
I.
We begin by summarizing the facts underlying the custody dispute that preceded the post-judgment orders at issue. The parties divorced in January 2010 after six years of marriage; their relationship, both before and after the divorce, was marked by intense and bitter conflict.
In December 2008, plaintiff obtained a final restraining order (FRO) that limited defendant's contact with J.C. The FRO was based on a finding that, during a dispute over J.C., defendant grabbed plaintiff's wrists and threatened to break them. The FRO granted defendant supervised parenting time two days per week through a social services agency. Defendant had been arrested, in August 2008, for allegedly committing a sexual offense several years earlier against plaintiff's teenage daughter from her previous marriage. The grand jury declined to return an indictment.
In February 2009, plaintiff was awarded sole legal custody of J.C. pendente lite. The court's order continued defendant's supervised parenting time, per the December 2008 FRO. The parties' property settlement agreement continued that arrangement. Parenting time was left undetermined and subject to reunification therapy.
Extensive motion practice ensued post-divorce. Defendant sought modification of the FRO in January 2010, which the judge denied. We affirmed in P.V. v. F.C., No. A-3151-09 (App. Div. Feb. 8, 2011). Defendant thereafter filed multiple post-judgment motions in the matrimonial case to expand his parenting time and to obtain a plenary hearing on the issue. Defendant's first several requests for a plenary hearing were denied. In September 2010, Judge Patrick McGann found insufficient grounds to order a plenary hearing on modification of custody. Judge Paul X. Escandon reached the same conclusion in March, August, and December 2011. Defendant was often ordered to reimburse plaintiff for fees incurred in opposing his motions and prosecuting cross-motions for enforcement of the PSA.
Meanwhile, visitation between defendant and J.C. was found to progress by supervisors. Defendant's parenting time was supervised, first by a social services agency, and then by an attorney appointed as a guardian ad litem (GAL) for J.C. at defendant's expense. There was evidence defendant failed to comply with the agency's rules, for example, by including other family members in his parenting time, and taking videos of his visits. The agency also reported statements by J.C. indicating that plaintiff attempted to alienate J.C.'s affection for his father.
The GAL found that initial sessions were positive, but at later sessions, J.C. acted out and refused to visit defendant. The GAL reported that defendant behaved appropriately, even when J.C. refused to visit. The GAL noted that J.C. made derogatory comments about defendant, but did not believe plaintiff encouraged those comments. The GAL suspected that someone else with access to J.C. was "tainting the well." The GAL ceased supervising visitation because of J.C.'s behavior. By December 2011, defendant was exercising parenting time from 10 a.m. to 4 p.m. Saturday and Sunday, supervised by S.S., a federal law enforcement officer and defendant's friend.
On May 25, 2012, Judge Escandon granted defendant's request for a plenary hearing, relying on a submission by S.S. that stated plaintiff was alienating J.C.'s affections for his father. The judge ordered discovery and anticipated setting a date for the plenary hearing at a June 12, 2012 case management conference. The court also changed defendant's parenting schedule to 10 a.m. to 4 p.m. on Saturdays, and 4:30 to 7:30 p.m. every Monday and Wednesday. The court later appointed Mary Merla-Ramos, Ph.D., as an expert to conduct psychological evaluations of both parents and provide a recommended parenting arrangement for J.C.
Plaintiff asserts that the judge was unaware that S.S.'s submission was provided ex parte, and distributed to both counsel only after the judge's decision.
Soon after Judge Escandon's order, plaintiff contacted DYFS to express her fear that defendant had inappropriate contact with J.C., based on an incident that occurred six months earlier. A Monmouth County Prosecutor's Office detective who investigated the matter told Dr. Merla-Ramos that J.C. appeared to have been coached and "negatively influenced into relaying inaccurate facts and or details in order to paint his father in a negative light." Dr. Merla-Ramos reported that it was concluded nothing inappropriate occurred.
Plaintiff's suspicions were said to have been based on the fact that J.C. returned from a visit with his father wearing different underwear. Defendant explained that he purchased superhero briefs for J.C. that day, and J.C. wanted to wear them.
On August 20, 2012, Judge Escandon denied plaintiff's motion to reconsider his order granting a plenary hearing. He also denied plaintiff's motion for an order compelling defendant to pay plaintiff $25,000 in attorney fees, as well as plaintiff's motion to sanction defendant for repetitive motion practice.
Dr. Merla-Ramos submitted her report in February 2013. Her findings and recommendations were based on interviews with plaintiff, defendant, J.C. and other family members, as well as psychological evaluations. Dr. Merla-Ramos found that comments by J.C. suggested plaintiff was interfering with J.C.'s "ability to establish a trusting relationship with his father." Dr. Merla-Ramos noted that plaintiff denied making "derogatory statements" about defendant to J.C. Dr. Merla-Ramos also found that defendant's lateness in returning J.C. after parenting time caused tension in the family and produced anxiety for J.C. Importantly, she concluded J.C. "is emotionally connected to his father despite his expressed ambivalence."
Merla-Ramos also interviewed defendant's first wife and their daughter, both of whom spoke positively about defendant's parenting ability.
Dr. Merla-Ramos recommended continuing residential custody with plaintiff, but increasing defendant's parenting time and changing it to unsupervised. She also recommended that the parties exercise "joint custody" and jointly make parenting decisions. She noted defendant had exercised supervised visitation for over a year with no issues. She also recommended allowing overnight visits, if agreed to by the parenting coordinator, but doing so after a three-month delay, during which time defendant would be required to "demonstrate compliance with all aspects of the parenting plan[,] particularly the timeframes for pick-ups and drop-offs." She also recommended that both parents receive individual therapy.
The court in December 2011 allowed the parties to communicate about J.C., notwithstanding the FRO.
After Dr. Merla-Ramos submitted her report, defendant filed a motion seeking to schedule the plenary hearing. The motion also requested joint legal custody, unsupervised parenting time, overnight parenting time in advance of the plenary hearing, complementary dispute resolution, and attorney fees. Plaintiff opposed the motion and sought relief that included, among other things, an order requiring defendant to return J.C. promptly after his parenting time.
On August 13, 2013, Judge Kathleen Sheedy granted defendant's motion for a plenary hearing but did not set a date. She found there were genuine factual issues regarding whether plaintiff was denying defendant access to J.C. and interfering with his right to raise J.C. The judge also ordered a forty-five-day period of discovery, denied defendant's requests for immediate modification of parenting time and custody, granted plaintiff's request that defendant timely return J.C. at the end of parenting time, and denied without prejudice the parties' respective attorney fee requests.
In October 2013, plaintiff filed a motion to enforce litigant's rights and to hold defendant in contempt for violating previous court orders. Among her numerous requests for relief, she requested an order quashing the 568 requests for admissions defendant had served after the forty-five-day discovery period ended; and an order compelling defendant to respond to her August 21, 2013 request for production of documents. In the alternative, plaintiff sought an order vacating the prior orders granting a plenary hearing, or staying the plenary hearing until defendant "complies with the Court's orders and pays Plaintiff's attorney fees of $25,000 for the plenary hearing." Plaintiff explained that the $25,000 would serve as a retainer for the plenary hearing. Plaintiff sought attorney fees for filing the motion.
Defendant filed a separate motion on December 9, 2013, seeking to schedule the plenary hearing and implement Dr. Merla-Ramos's recommendations pending the plenary hearing. Plaintiff opposed defendant's motion. In a cross-motion, plaintiff asked the court to hold defendant in "contempt" for failing to provide proof of insurance, failing to return J.C.'s cell phone and provide phone contact, and for videorecording a parenting time exchange in violation of a court order. Her cross-motion asked for attorney's fees because of defendant's repetitive motion practice. She evidently attached a "final 2013 pay stub" showing gross income of $25,928.12 in 2013. In a reply certification, defendant stated that, in addition to bearing his own fees, he had paid $9460 in plaintiff's attorney's fees pursuant to court orders; $9200 for Dr. Merla-Ramos; $3350 toward the GAL's fee (which exceeded $8000); and $3000 for another reunification therapist. Defendant provided a copy of his 2012 personal tax return, reflecting $21,156 in business income from his construction business, and $19,661 in adjusted gross income.
Plaintiff's motion, defendant's motion, and plaintiff's cross-motion were presented to a new judge, who issued a tentative opinion in advance of the return date. Without explanation, the judge granted plaintiff's request for $25,000 in fees and stayed scheduling of the plenary hearing pending defendant's payment of that amount and response to plaintiff's previous document request. The judge also granted plaintiff's motion to "[e]nforce litigant's rights pursuant to R. 1:10-3 and hold[] Defendant in contempt of Court for his failure to comply with the Court's March 18, 2011, May 25, 2012, and August 13, 2013 Orders" but did not specify defendant's acts of noncompliance. However, the judge denied without prejudice plaintiff's motion to bar further motions without court permission. The judge awarded plaintiff attorney fees, but denied plaintiff's motion for sanctions. The judge declined to decide most of defendant's requests for modification before the plenary hearing, but did grant his motion for access to J.C.'s educational records and his teachers and school staff.
For purposes of this opinion, this judge handled all aspects of this case from this point on.
At a hearing on the tentative decision, defendant opposed the $25,000 fee award and argued he could not afford to pay it, citing his 2012 taxable income of $21,000. Plaintiff asserted defendant could afford to pay $25,000, noting he had asked for her approval in 2012 to purchase a house in her neighborhood. Defendant responded that the purchase price was to be paid by his family. At the hearing on the tentative decision, the judge indicated she believed $25,000 was the sum of the fees previously awarded by the court.
On February 14, 2014, the judge issued two orders that were consistent with the tentative decision. The first order granted plaintiff's motion to "[s]tay the scheduling of plenary hearing until such time as Defendant complies with discovery and the Court's prior Orders, and including payment of Plaintiff's attorney fees of $25,000.00 for the plenary hearing[.]" This order also granted plaintiff's motion to hold defendant in contempt for violating the March 18, 2011, May 25, 2012, and August 13, 2013 orders.
The second order "denied without prejudice" plaintiff's motion to "[s]tay the scheduling of a plenary hearing until such time as Defendant complies with the Court's Orders and pays Plaintiff's attorney fees of $25,000.00 for the plenary hearing[.]" This order constituted a decision on plaintiff's October 2013 motion; the judge noted plaintiff had requested $25,000 as a "retainer" for her attorney. This order also denied without prejudice plaintiff's motion to vacate previous orders granting a plenary hearing.
In a statement of reasons in support of the second order, the judge explained that she awarded plaintiff $2497.59 in attorney fees because of defendant's bad faith. In finding bad faith, the judge stated, "It is clear from the parties' papers that Defendant has failed to comply with several orders issued by the Court." The judge also cited defendant's serving "over 500" requests for admissions after the discovery deadline. Defendant was ordered to pay the $2497.59 by March 7, 2014.
Defendant subsequently moved for reconsideration, arguing the two February 14 orders were inconsistent with respect to the $25,000 award. Defendant also argued there was an insufficient record of the parties' financial circumstances to determine that he was able to pay $25,000. Defendant certified that his earnings were approximately $30,000.
At a hearing on the reconsideration motion, the judge reiterated her understanding that the $25,000 comprised "attorney's fees [that] were awarded because of the nonsense basically that happened . . . because [plaintiff] had to come into court time and time again, and the attorney's not getting paid[.]" But later in the hearing, the judge explained the $25,000 award was meant "to level the playing field so they both can have a fair opportunity at the hearing, as a result of the litigation history[.]" Importantly, plaintiff conceded at the hearing that, with the exception of the February 14, 2014 $2497.59 fee award, defendant had paid all of the fee awards previously ordered by the court.
The parties disputed plaintiff's and defendant's ability to pay the $25,000. Plaintiff questioned defendant's claim that he only had $19,000 in adjusted gross income, noting he had claimed income of $50,000 and a net worth of $75,000 in a February 2011 life insurance application. Defendant noted plaintiff had not filed a CIS regarding her ability to pay her fees.
On June 30, 2014, the judge denied the reconsideration motion. The judge stated the $25,000 was the sum of "counsel fees that have been awarded to Plaintiff through the past four years of this litigation." As noted above, however, defendant had satisfied all of the previous fee orders, with the exception of the recent $2497.59 fee sanction. The judge stayed the scheduling of a plenary hearing until defendant paid plaintiff $27,497.59 in attorney fees — the $25,000 award plus the $2497.59 fee sanction. Yet the judge also reserved ruling on whether those two fee awards were supported by the evidence.
The judge's order also granted plaintiff's motion to hold defendant in contempt for failing to comply with the "February 14, 2014 Orders." The judge ordered the parties to exchange CIS's by July 14, 2014, denied defendant's request for an extension of discovery, and reserved ruling on plaintiff's request for fees in connection with the pending motion.
On July 14, 2014, defendant filed his CIS, which he stated reflected his "estimated income" for 2013 and 2014. The CIS reported gross earned income for 2013 of $120,000, income taxes of $39,200, and net income of $80,800. A separately attached "expense report" for defendant's construction company stated it had $84,849.83 in expenses in 2013, but did not explain how those expenses related to defendant's $120,000 in gross income. Defendant's CIS reported $7000 in gross income net of taxes for 2014 year-to-date, but also stated defendant had almost $7000 in monthly expenses for himself, his mother, and one child.
The record does not include a CIS submitted by plaintiff in July 2014.
On September 5, 2014, the judge issued an order deciding the issues she had reserved in her June 30 order. Regarding whether the $25,000 and $2497.59 fee awards were supported by the evidence, the judge found that defendant "earned at least $120,000 in 2012[,]" citing his July 2014 CIS, and that plaintiff earned $25,928. Based on these figures, the judge found that plaintiff was not able to pay attorney fees and that defendant was able to pay the fee awards.
The judge also found that defendant's reported gross income of $120,000 demonstrated "bad faith[,]" given that he had claimed he earned $19,000 in 2012. The judge also characterized defendant's "excessive motion filing, blatant disregard for Court orders[,] and his continued efforts to thwart discovery" as bad faith. Ruling on the issues left open by her June 30 order, the judge concluded:
In light of Defendant's failure to comply with prior Court Orders, failure to pay anything towards his obligations, ability to pay attorneys' fees, Plaintiff's inability to pay attorney's fees and Defendant's excessive dishonesty with this Court, Defendant's request for reconsideration is denied. Furthermore, Plaintiff's request for counsel fees for the underlying Cross Motion is granted in the amount of $2,655, to be paid on or before September 30, 2014.
In October 2014, defendant submitted a substantially revised CIS that disclosed gross income of $56,477, taxes of $9105, net income of $47,372, and negative net worth. Defendant moved for a stay of the court's September 5, 2014 decision pending appeal.
The judge denied the motion in a February 25, 2015 opinion. The judge offered varying rationales for the $25,000 award. The judge first stated the payment was ordered because of defendant's "bad faith throughout this litigation." Yet the judge also stated the fee awards were "not necessarily penal in nature[,]" and instead were meant "to coerce Defendant to end the nonsense and cease abusing the judicial process." The judge later stated the $25,000 represented the sum of attorney fees defendant owed plaintiff "for the past four years of litigation."
We granted defendant's motion for leave to appeal. Defendant argues that the court erred in failing to schedule a plenary hearing and that conditioning the scheduling of the hearing on payment of $25,000 abridged his constitutional parental rights. Plaintiff argues the $25,000 payment was necessary to ensure that defendant "abides by court orders and stops his bad faith litigation."
Defendant initially filed a notice of appeal, but we dismissed the appeal as interlocutory.
II.
At issue is whether the court mistakenly exercised its discretion in awarding plaintiff $25,000 in fees and staying a plenary hearing until the fee was paid. We conclude it did.
We generally accord deference to the family court based on its special jurisdiction and expertise. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We defer to the court's factual findings if "supported by adequate, substantial, and credible evidence in the record." D.A. v. R.C., 438 N.J. Super. 431, 451 (App. Div. 2014) (citing Cesare, supra, 154 N.J. at 411-13). However, we owe little deference to fact-findings that are not based on witness testimony or credibility findings. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000). We review de novo the trial judge's interpretation of the law and legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We review for an abuse of discretion a trial judge's determination whether a party is entitled to a plenary hearing, Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015); an award of attorney's fees, Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008); and a denial of a motion for reconsideration, Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). While this standard "defies precise definition," we may find an abuse of discretion when a decision "rest[s] on an impermissible basis" or is "based upon a consideration of irrelevant or inappropriate factors[.]" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002).
We turn next to principles governing fee awards. Under Rule 5:3-5(c), a trial court has discretion to award counsel fees in matrimonial actions. Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd, 208 N.J. 409 (2011). The court may order payment of fees already incurred, or may order a pendente lite allowance "based on an evaluation of prospective services likely to be performed and the respective financial circumstances of the parties." R. 5:3-5(c).
In calculating the amount of a fee award, 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.The court must also determine the lodestar amount, "which equals the number of hours reasonably expended multiplied by a reasonable hourly rate." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div. 2012). The application for fees must be supported by an affidavit of services that addresses the factors enumerated in RPC 1.5(a), states how much has been paid, and what provision has been made for future payments. R. 4:42-9(b). We will reverse a fee award where the trial court has failed to address the pertinent factors under the rules. Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003).
[Ibid.]
"'Fees in family actions are normally awarded to permit parties with unequal financial positions to litigate (in good faith) on an equal footing.'" J.E.V., supra, 426 N.J. Super. at 493 (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)). Success in the litigation, while a factor, is not "a prerequisite for an award of counsel fees." Id. at 492. A party requesting fees must have acted in good faith in the litigation and have a financial need, and the party paying fees must be able to pay. Id. at 493. To assess financial need and ability to pay, the court requires current financial information. See Roberts v. Roberts, 388 N.J. Super. 442, 453 (Ch. Div. 2006).
However, "'where one party acts in bad faith, the relative economic position of the parties has little relevance' because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party." Yueh, supra, 329 N.J. Super. at 461 (quoting Kelly, supra, 262 N.J. Super. at 307). Bad faith may consist of a party's "constant disregard . . . of court orders and discovery rules[,]" id. at 460; the use of motion practice as a form of intimidation, see Kozak v. Kozak, 280 N.J. Super. 272, 279-80 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997); "[t]he intentional misrepresentation of facts[,]" Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992); or unnecessarily prolonging litigation, Marx v. Marx, 265 N.J. Super. 418, 429 (Ch. Div. 1993).
We next review the rules governing plenary hearings. A movant must make a prima facie showing of changed circumstances warranting review of the status quo; if there are genuine issues of material fact, a plenary hearing must be held to ascertain the best interests of the child. R.K. v. F.K., 437 N.J. Super. 58, 62-63 (App. Div. 2014).
At issue in this case is not the threshold showing of changed circumstances, but rather the court's obligation to conduct a hearing once that showing is made. Once the court has determined that a plenary hearing is necessary, the court must set a hearing date within six months. Rule 5:8-6, which establishes procedures for plenary hearings on child custody, provides in pertinent part:
Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading. The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action.
[(Emphasis added).]The word "shall" represents a "clear, non-discretionary mandate" that the court set a hearing date once it finds that custody is a genuine and substantial issue. See D.A., supra, 438 N.J. Super. at 456. This time constraint limits the judge's discretion in scheduling the hearing, so as to vindicate the child's interest in securing "as speedy and final a disposition as possible." See Pressler, Current N.J. Court Rules, comment on R. 5:8-6 (2015).
III.
We apply these principles first to the $25,000 fee award. The award cannot be justified as a pendente lite award under Rule 5:3-5(c) or as a sanction for bad faith. While plaintiff clearly sought the $25,000 to defer the costs of a plenary hearing, the court did not deem the $25,000 a pendente lite award under Rule 5:3-5. Nor did the court make the findings necessary to justify a pendente lite award. The court did not evaluate the services likely to be performed. R. 5:3-5(c). In arriving at the amount of $25,000, the court did not consider the factors under Rule 5:3-5(c); indeed, there is no evidence that plaintiff provided an affidavit of services as required by Rule 4:42-9. The only reason we can discern for setting the amount at $25,000 is that plaintiff requested that amount.
The judge variously described the award both as reimbursement for fees "for the past four years of litigation" and as a means to "coerce Defendant to end the nonsense and cease abusing the judicial process."
Even if the court had awarded $25,000 as a pendente lite allowance, the record did not support a finding that defendant was able to pay that amount. Defendant reported a negative net worth: he owned no real estate, did not have any bank accounts, and had substantial personal debt. His CIS did not reflect a capacity to borrow $25,000. While his CIS reported gross income of $120,000 in 2012, this was an estimate; it was contradicted by other information in the CIS; and it did not represent his disposable income. The court placed undue weight on defendant's reported gross income and should have explored the internal inconsistencies in the CIS.
We note that his revised CIS in October 2014 presented significantly lower figures, which warranted further examination.
Nor can the $25,000 award be justified as a sanction for bad faith. While defendant's numerous attempts to secure the scheduling of a plenary hearing were not successful, we do not view those attempts as frivolous or motivated by malice. The court found, in May 2012, that defendant was entitled to a plenary hearing, and Rule 5:8-6 required the court to set a hearing date within six months. Given the time frame established by court rule, defendant had a good faith basis for requesting that a hearing date be set.
Other instances of defendant's purported misconduct also do not support a finding of bad faith. Although the court found generally that defendant had violated court orders, it did not identify the violations in any detail. Many of the allegations of noncompliance were contested factually, such as the claim that defendant was responsible for J.C.'s "lost" phone, or the claim that defendant failed to obtain life insurance in accordance with the PSA. We note that the record contains certificates of life insurance. And while we do not condone defendant's lateness in returning J.C. after parenting time, the six instances of significant lateness (more than twenty minutes) over a six-month period do not constitute bad faith.
We note that Judges McGann and Escandon had previously awarded plaintiff attorney fees incurred in arguing motions from 2009-11. The $25,000 award cannot be justified on the basis of this motion practice, as defendant had already paid those fees.
Finally, the $25,000 fee award was not supported by an affidavit of services as required by the Rules; nor did the court perform a lodestar analysis. See J.E.V., supra, 426 N.J. Super. at 493.
While we reverse the $25,000 award, we do not preclude the court from ordering defendant to pay a share of plaintiff's fees in connection with the plenary hearing. However, the court may do so only after an appropriate review of the factors under Rule 5:3-5(c), including defendant's and plaintiff's financial need and ability to pay. If, given the discrepancies between defendant's CIS's, there remain genuine issues of fact regarding the parties' financial ability, the court may need to resolve them at an evidentiary hearing. But, as we have concluded, the record did not support a finding that defendant was able to pay $25,000 in advance of the hearing.
We turn next to the conditioning of the plenary hearing on defendant's paying the $25,000 award in full. A court has broad powers to compel compliance with its orders. See R. 1:10-3; Roselin v. Roselin, 208 N.J. Super. 612, 618 (App. Div.), certif. denied, 105 N.J. 550 (1986). Yet, even where a monetary sanction has been properly assessed against a recalcitrant party, a court should avoid denying a plenary custody hearing as a means of securing compliance.
The order finding defendant in contempt was void because it did not comply with Rule 1:10-2, which in the case of contempt not in the presence of the court, requires a separate proceeding to be initiated by an order of arrest or order to show cause. R. 1:10-2(a). The contempt proceeding may only be prosecuted by the Attorney General, the County Prosecutor, or an attorney designated by the court. R. 1:10-2(c); see also Canino v. D.R.C. Co., 212 N.J. Super. 620, 623-24 (App. Div. 1986) (finding of contempt and punitive sanction under Rule 4:23-2 must comply with Rule 1:10-2). --------
J.C. has an interest in a prompt determination of custody and parenting time disputes. N.J.S.A. 9:2-4(c) expressly protects a child's interests by requiring courts to ensure that any custody arrangement is "in the best interests of the child." A "child's 'best interest' is fostered when both parents are involved with the child, assuring the child of frequent and continuing contact with both parties." R.K., supra, 437 N.J. Super. at 65 (internal brackets and citation omitted) (quoting N.J.S.A. 9:2-4). J.C.'s interests include the love, affection, and attention of his father. See Cooper v. Cooper, 99 N.J. 42, 50 (1984) (recognizing the "mutual right of the child and the noncustodial parent to develop and maintain their familial relationship").
Delaying the hearing deprives J.C. of a prompt determination of his best interests with respect to custody and parenting time. J.C.'s relationship with defendant has been strained by the parenting time restrictions that have been in place since 2012. The extensive delays in conducting this plenary hearing are particularly significant to a child of tender years like J.C. See K.A.F. v. D.L.M., 437 N.J. Super. 123, 138 (App. Div. 2014) ("the matter of visitation is so important, especially during the formative years of the child").
In general, courts should hesitate to resort to procedural remedies directed at a parent, where the interests of a child are at stake. See Essex Cty. Div. of Welfare v. J.S., 205 N.J. Super. 244, 247 (App. Div. 1985) (reversing dismissal of paternity action that was based on mother's failure to appear, noting "the interested parties . . . are not just the mother and the putative father . . . [t]hey also include the child"); Fehnel v. Fehnel, 186 N.J. Super. 209, 215-16 (App. Div. 1982) ("Potentially penalizing the children as a sanction for the dilatory conduct of the parent-litigants is . . . an unacceptable sanction.").
In sum, it was error to delay the plenary hearing on custody and parenting time until defendant paid the $25,000 award in full.
IV.
The court shall conduct the hearing within ninety days. We express no view on the assumption of both parties that this plenary hearing is destined to be long and contentious. We are confident the trial court will exercise its authority to manage the presentation of proofs and focus the hearing on the issues in genuine dispute. The trial court is also encouraged to explore ways of narrowing or bifurcating issues, to provide at least interim relief if appropriate. We note, for example, that plaintiff's conditional acceptance of Dr. Merla-Ramos's recommendation may provide an opportunity to narrow the issues. Based on the assumption that the hearing will be scheduled expeditiously, we decline to exercise original jurisdiction and award defendant any interim relief.
Finally, although we do not question the judge's sincerity or her good faith effort to resolve this long-pending dispute, we direct that a different judge handle the case on remand, in light of the judge's characterization of defendant's motion practice as "nonsense" and her general finding of defendant's "excessive dishonesty[.]" See P.T. v. M.S., 325 N.J. Super. 193, 221 (App. Div. 1999); J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div.) (remanding to different judge because original judge had found a party's position not credible), certif. denied, 158 N.J. 685 (1999).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION