G.A. VS. V.B. (FM-18-0269-14, SOMERSET COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2642-19T1
G.A.,
Plaintiff-Respondent,
v.
V.B.,
Defendant-Appellant.
________________________
Submitted October 28, 2020 – Decided December 16, 2020
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0269-14.
De Tommaso Law Group, LLC, attorneys for appellant
(Michael J. DeTommaso and Taryn R. Zimmerman, on
the briefs).
Eileen M. Foley, attorney for respondent.
PER CURIAM
In this post-judgment matrimonial matter, defendant V.B. appeals from a
February 3, 2020 award of counsel fees in the sum of $18,281.25 in favor of her
former husband, plaintiff G.A. We affirm.
The parties were married in March 2007 and their son was born in May
2007. The parties divorced in March 2014 and their February 2014 marital
settlement agreement (MSA) was incorporated into their judgment of divorce.
Under the MSA, the parties agreed to share joint legal custody of their son , with
physical custody to plaintiff. The MSA afforded defendant parenting time
throughout the year, including summer visits from July 24th to August 31st.
After the parties divorced, defendant lived in Illinois, whereas plaintiff
remained in New Jersey with the child. Pertinent to the instant appeal, paragraph
twenty-eight of the parties' MSA provided:
The Wife fully understands and recognizes that if she
should violate the custody/parenting time arrangement
and refuse to return the child to the State of New Jersey
at the conclusion of her parenting time, thus forcing
Husband to take legal action against Wife to return the
minor child to Husband in the State of New Jersey, all
future parenting time between Wife and the minor child
will take place in the State of New Jersey in a
supervised setting and Wife will no longer be entitled
to remove the child from the State of New Jersey. Wife
shall also be responsible to reimburse Husband all
attorney's fees and costs associated with any legal
action which Husband is required to take against Wife
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to effectuate the return of his son to the State of New
Jersey.
On or about August 21, 2019, while the parties' child was visiting
defendant in Illinois, he told her plaintiff physically punished him. Specifically,
the child claimed plaintiff slapped his face and pulled his ears when he received
poor grades. Defendant reported these allegations, and the Illinois Department
of Children and Family Services opened an investigation. Additionally,
defendant lodged a report with the New Jersey Department of Child Protection
and Permanency (Division), which also investigated the matter.
On August 30, 2019, defendant filed an emergency petition in Illinois,
seeking temporary physical custody of the parties' son. She also filed an
application to modify the parties' Judgment of Divorce. That same day, an
Illinois court granted defendant temporary physical custody of the child. As of
September 6, 2019, the child began his school year in Illinois.
On September 16, 2019, plaintiff filed an emergent petition in Illinois,
contesting the state's exercise of emergency jurisdiction. Approximately two
weeks later, defendant filed an application in New Jersey, asking that Illinois be
permitted to assume jurisdiction over the parties' custody issues. On October 3,
2019, plaintiff filed an order to show cause in New Jersey to compel the child's
return. The next day, a New Jersey Family Part judge conducted a testimonial
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hearing to decide whether New Jersey or Illinois had jurisdiction to address
custody and parenting time issues. The judge determined New Jersey retained
continuing exclusive jurisdiction over these issues. He also noted defendant
waited "until the eve of [the child] being returned to New Jersey" before going
to court in Illinois. The judge directed defendant to return the child to New
Jersey by October 6, 2019, and ordered that plaintiff's parenting time be
supervised by the child's grandmother pending further review. Defendant did
not return the child to New Jersey by October 6.
On October 10, 2019, the judge in Illinois vacated the August 30 order of
protection and directed defendant to return the child to New Jersey by October
12, 2019. He further ordered that New Jersey "shall retain exclusive jurisdiction
in the matter of the minor child." The next day, the judge entered an order
dismissing defendant's case in Illinois, "due to [the] lack of Illinois's
jurisdiction." Defendant returned the child to New Jersey in compliance with
the October 10 order. Days later, the Family Part judge in New Jersey
interviewed the child, who repeated his allegations of corporal punishment
against plaintiff. Ultimately, neither the Family Part judge, the Division nor the
protective agency in Illinois determined the child was physically abused.
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Plaintiff filed a motion in New Jersey seeking reimbursement for the
counsel fees he expended to secure the return of the parties' son to New Jersey.
On December 20, 2019, the motion judge found defendant was in violation of
plaintiff's rights "by refusing to return the child . . . to New Jersey on October
6, 2019, in direct violation of the court's order dated October 4, 2019." Also, on
December 20, 2019, the judge enforced paragraph twenty-eight of the parties'
MSA and granted plaintiff's motion for counsel fees, directing defendant "to pay
all counsel fees and costs incurred by plaintiff in Illinois and New Jersey, for
having to take legal action to obtain [a] court order to force the return of [the
child] to plaintiff in New Jersey." The judge allowed plaintiff thirty days to
submit an affidavit of services from his attorney. In the statement of reasons
attached to his December 20 order, the judge found
The MSA very clearly laid out what would happen if
defendant refused to return [the child] to New Jersey
upon the conclusion of her parenting time. Plaintiff
was forced to expend counsel fees to enforce the MSA
and to enforce this court's multiple orders. Defendant
did not return [the child] until she was threatened with
a bench warrant. This court does find that defendant
willfully breached the MSA, ignored this court's orders,
and is in violation of litigant's rights. Defendant shall
pay the counsel fees that plaintiff expended to have [the
child] returned to New Jersey.
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On January 8, 2020, plaintiff's counsel emailed her affidavit of services to
defendant's attorney. Defendant did not file any response to the affidavit.
Accordingly, on February 3, 2020, the motion judge awarded plaintiff counsel
fees and costs in the sum of $18,281.25. The judge found that the hourly rate
for, and the services rendered by, plaintiff's counsel were reasonable. Further,
the judge determined "plaintiff proceeded in this litigation with reasonableness
and good faith, and the defendant acted in bad faith, and . . . specifically failed
to follow court orders. She was held in contempt in an order of December 20th
of 2019." Further, the judge found "[t]his was the second time that [defendant]
did not return [the child] at the end of her summer parenting time. Both in the
past and . . . earlier last year, . . . actions had to be brought in both the Superior
Court and in the State of Illinois." Additionally, the judge noted that as of
February 3, 2020, he received no opposition to plaintiff's request for counsel
fees, even though plaintiff's counsel emailed her affidavit of services to
defendant's counsel on January 8, 2020.
On appeal, defendant argues the motion judge erred in awarding attorney
fees and costs to the plaintiff because he relied solely upon the affidavit of
services provided by plaintiff's counsel. She further contends an award of
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counsel fees violates public policy since she was trying to protect her son and
should not be penalized for her efforts. We are not persuaded.
We defer to family court fact findings "when supported by adequate,
substantial, credible evidence." Fattore v. Fattore, 458 N.J. Super. 75, 83 (App.
Div. 2019) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). However,
"[t]o the extent a trial court interprets the law and the legal consequences that
flow from the established facts, we review its conclusions de novo."
Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 329 (2017).
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) (citing Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004)). An
award of counsel fees will be disturbed "only on the 'rarest occasion,' and then
only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super.
298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317
(1995)). An abuse of discretion "arises when a decision is 'made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d
1260, 1265 (7th Cir. 1985)).
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There is a "'strong public policy favoring stability of arrangements' in
matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)
(quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). Matrimonial settlement
agreements are "governed by basic contract principles," Quinn v. Quinn, 225
N.J. 34, 45 (2016), and "fair and definitive arrangements arrived at by mutual
consent should not be unnecessarily or lightly disturbed," id. at 44 (quoting
Konzelman, 158 N.J. at 193-94). Indeed, as we have previously observed, a trial
court's failure to give effect to a counsel fee award provision in an MSA
constitutes an abuse of discretion. See Strahan, 402 N.J. Super. at 317.
Guided by these principles, we perceive no basis to disturb the motion
judge's award of counsel fees, particularly since the motion judge was fully
familiar with this matter, having conducted the evidentiary hearing regarding
jurisdiction in early October 2019, interviewed the child, and considered the
parties' competing applications thereafter. Further, the judge specifically
determined in his December 20, 2019 order that defendant was in violation of
litigant's rights "by refusing to return the child . . . to New Jersey on October 6,
2019, in direct violation of the court's order dated October 4, 2019." The
December 20, 2019 order was neither reconsidered nor appealed. Additionally,
defendant's allegations of plaintiff's physical abuse of the parties' son were not
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substantiated. Moreover, we cannot ignore the glaring fact that the arguments
defendant now raises on appeal were not submitted to the motion judge before
he fixed the amount of the counsel fees award. The record reflects defendant
had almost a month to contest the reasonableness of plaintiff's counsel fee
request before the February 3, 2020 order was entered. Under these
circumstances, we cannot find the motion judge abused his discretion.
To the extent we have not addressed defendant's remaining arguments, we
are satisfied they lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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