A.K. VS. C.G. (FM-02-1718-17, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1463-18T2
A.K.,
Plaintiff-Appellant,
v.
C.G.,
Defendant-Respondent.
_________________________
Submitted June 4, 2019 – Decided July 9, 2019
Before Judges Yannotti and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1718-17.
A.K., appellant pro se.
Snyder Sarno D'Aniello Maceri & Da Costa, LLC,
attorneys for respondent (Angelo Sarno, of counsel and
on the brief).
PER CURIAM
Plaintiff and defendant, his former wife, are engaged in ongoing custody
and parenting time disputes concerning their one common child. The
proceedings have been contentious, with both parties filing numerous motions
and plaintiff filing several appeals. In this fifth appeal by plaintiff, he challenges
an October 19, 2018 order that denied his motion to recuse a Family Part judge
and awarded attorneys' fees to defendant. We dismiss, as moot, the portion of
the appeal challenging the denial of the recusal because the matter has been
administratively transferred to another Family Part judge. We affirm the
attorneys' fees award.
I.
We summarize the facts and procedural history relevant to this appeal.
The parties were married in December 2014. Shortly thereafter, they separated,
and in May 2015, plaintiff filed a complaint in New York state court seeking an
annulment. Eventually, in January 2016, a New York court entered a judgment
that annulled the parties' marriage.
Meanwhile, in July 2015, defendant gave birth to a child. In August 2015,
plaintiff, who had apparently moved to New Jersey, filed a complaint in the
Family Part of our Superior Court seeking parenting time with the child.
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Defendant opposed that application, and filed a complaint seeking, among other
things, sole legal custody of the child.
In May 2016, the Family Part entered an order awarding defendant
temporary legal and residential custody of the child, with plaintiff allowed
supervised parenting time. Thereafter, difficulties arose between the parties and
the Family Part issued a number of orders concerning parenting time and other
issues. During those proceedings, plaintiff raised a question concerning whether
he was the father of the child, but ultimately a paternity test confirmed that he
was the child's father.
Defendant also filed for and obtained a final restraining order (FRO)
against plaintiff under the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35. Plaintiff appealed from the FRO, but we affirmed that order.
C.G. v. A.K., No. A-1390-16 (App. Div. June 19, 2018). Plaintiff also appealed
from an October 26, 2016 order that denied his motions to change custody and
parenting time. We affirmed the October 26, 2016 order. A.K. v. C.K., No. A-
1391-16 (App. Div. June 19, 2018). In both appeals, we found plaintiff's
arguments lacked sufficient merit to warrant discussions in written opinions.
See R. 2:11-3(e)(1)(E).
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Another issue the parties disputed was the obtaining of a Jewish get. The
parties were married in a Jewish ceremony, during which the parties entered into
a marriage agreement known as a "ketubah." The agreement stated in part that
defendant agreed to be plaintiff's wife "according to the Law of Moses and
Israel."
In May 2015, defendant obtained a get from a rabbinical Jewish court.
Plaintiff, however, later contacted a rabbi and called into question the validity
of the get. Thereafter, there were a series of motions filed and orders issued
concerning defendant's efforts to obtain a second get. Ultimately, defendant
withdrew her motions related to the get and represented that she no longer
needed plaintiff to provide her with a get. Accordingly, by order dated July 26,
2018, the Family Part vacated "all prior [c]ourt [o]rders as they relate to
[d]efendant's application to compel [p]laintiff to obtain a Jewish [g]et."
Plaintiff filed a motion for leave to appeal and an appeal from several of
the orders that addressed the get. On the motion for leave to appeal, we granted
the motion in part and summarily reversed certain provisions of an order that
had suspended plaintiff's parenting time because there was no showing that the
suspension was in the best interest of the child. We denied the other requested
relief.
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On plaintiff's subsequent appeal from the orders that required him to
appear before a rabbinical court, we dismissed part of the appeal as moot
because the Family Part had already vacated the order compelling plaintiff to
appear before the rabbinical court. We reversed an order that had granted
defendant's motion for attorneys' fees in connection with the motions to compel
plaintiff to comply with obtaining a second get. [A.K.] v. [C.G.], No. A-3697-
17 (App. Div. Mar. 14, 2019).
In September 2018, plaintiff filed a motion seeking to recuse the Family
Part judge who had entered the FRO and the orders concerning the get. Plaintiff
alleged that the judge was incapable of being impartial. Defendant opposed that
motion and filed a cross-motion for attorneys' fees. Plaintiff also filed another
motion to change custody and parenting time.
On October 19, 2018, the Family Part heard arguments on plaintiff's
motion seeking the recusal. Appropriately, the motion was heard by the judge
who plaintiff sought to recuse. See State v. McCabe, 201 N.J. 34, 45 (2010)
(stating that motions for recusal must be made to the judge whose
disqualification is sought) (first citing R. 1:12-2; then citing Magill v. Casel,
238 N.J. Super. 57, 63 (App. Div. 1990)).
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In his oral decision, the judge initially informed the parties that the case
was being administratively reassigned to another judge for reasons totally
unrelated to the recusal motion. The Family Part judge then addressed the
substance of the recusal motion, found it lacked any basis, and denied the
motion. In that regard, the judge found that plaintiff was simply unhappy with
the court's prior rulings, but that was no basis for a recusal. The judge
specifically addressed each criteria under Rule 1:12-1 and found that plaintiff
failed to establish any grounds for recusal. The judge also rejected plaintiff's
contention that because a portion of one of his orders had been reversed on
appeal, that was a basis for recusal.
The judge then analyzed defendant's cross-motion for attorneys' fees. In
doing so, the judge reviewed the factors set forth in Rule 5:3-5 and found that
defendant was entitled to attorneys' fees under those factors. Among other
things, the judge found that plaintiff had filed his motion for recusal in "bad
faith" and that defendant was entitled to a fee award. The judge then reviewed
counsel's certification setting forth the fees, and found that the hourly rates and
fees sought were reasonable. Accordingly, the judge ordered plaintiff to pay
defendant $5830 in attorneys' fees.
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II.
Plaintiff now appeals from the October 19, 2018 order. He makes two
arguments, contending that it was (1) an error to deny his motion to recuse the
Family Part judge; and (2) an error to award attorneys' fees incurred in
connection with the motion to recuse. The first argument is moot and the second
argument lacks merit.
A. The Motion for Recusal
"An issue is 'moot' when the decision sought in a matter, when rendered,
can have no practical effect on the existing controversy." Greenfield v. N.J.
Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting N.Y.
Susquehanna & W. Ry. Corp. v. Dep't of Treasury, Div. of Taxation, 6 N.J. Tax
575, 582 (Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)). "It is firmly
established that controversies which have become moot or academic prior to
judicial resolution ordinarily will be dismissed." Cinque v. N.J. Dep't. of Corr.,
261 N.J. Super. 242, 243 (App. Div. 1993) (first citing Oxfeld v. N.J. State Bd.
of Educ., 68 N.J. 301, 303-04 (1975); then citing Anderson v. Sills, 143 N.J.
Super. 432, 437-38 (Ch. Div. 1976)).
Plaintiff seeks review of an order denying his motion to recuse a particular
Family Part judge. The judge who is the subject of the recusal motion is no
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longer assigned to this matter. Therefore, the provision of the October 19, 2018
order denying the motion to recuse is moot because the decision on that issue
will have no practical effect. Accordingly, we dismiss plaintiff's appeal from
paragraph one of the October 19, 2018 order.
B. The Attorneys' Fees
Plaintiff also argues that the trial court abused its discretion in granting
defendant's motion for attorneys' fees. We review a trial court's order awarding
counsel fees under an abuse of discretion standard. Strahan v. Strahan, 402 N.J.
Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317
(1995)).
N.J.S.A. 2A:34-23 authorizes the Family Part to award counsel fees in a
matrimonial action after a judge considers "the factors set forth in the court rule
on counsel fees, the financial circumstances of the parties, and the good faith or
bad faith of either party." Chestone v. Chestone, 322 N.J. Super. 250, 255-56
(App. Div. 1999) (quoting N.J.S.A. 2A:34-23). Rule 4:42-9(a)(1) provides that,
"[i]n a family action, a fee allowance both pendente lite and on final
determination may be made pursuant to [Rule] 5:3-5(c)." Rule 5:3-5(c) states
that a court should consider nine factors, including "the reasonableness and good
faith of the positions advanced by the parties[.]"
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Here, in awarding defendant counsel fees, the judge addressed the factors
enumerated in Rule 5:3-5(c) and found that plaintiff had filed the motion for
recusal in bad faith. In that regard, in considering the substance of the recusal
motion, the judge reviewed Rule 1:12-1, which is the court rule setting forth the
grounds for recusal, and found that plaintiff had no basis for a motion to recuse
the judge. The judge then reviewed the attorney's certification seeking the fees,
and found that the hourly rates were reasonable and the fees were properly
incurred. We discern no abuse of discretion in the fees award.
Plaintiff argues that Rule 5:3-5(c) does not permit the court to award
counsel fees for a recusal motion. He asserts Rule 5:3-5(c) only permits the
court to award attorneys' fees for matters involving family-related issues. We
disagree.
Rule 5:3-5(c) provides in part that the court, in its discretion, may award
attorney's fees to be paid by any party in a Family Part matter who succeeds on
"any . . . claims relating to family type matters." Plaintiff's motion for the
judge's recusal related to his motions concerning custody and parenting time.
Moreover, having reviewed the record, we find no support for plaintiff's claim
that the Family Part judge abused his discretion in denying the recusal motion.
Plaintiff presented no grounds supporting recusal, and neither "adverse ruling[s]
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in prior proceedings" nor a party's dissatisfaction or displeasure warrant
disqualification. See State v. Marshall, 148 N.J. 89, 95 (1997); R. 1:12-1. Thus,
the recusal motion pertained to "family type matters." Accordingly, we affirm
the portion of the October 19, 2018 order awarding attorneys' fees to defendant.
Dismissed in part as moot and affirmed in part.
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