Y.A.B., Plaintiff–Appellant, v. A.C.B., Defendant–Respondent.

DOCKET NO.?A–2158–11T2

November 28, 2012

Before Judges Parrillo and Fasciale. Thomas D. Baldwin argued the cause for appellant (Budd Larner, P.C., attorneys; ?Mr. Baldwin and Jennifer L. Young, on the brief).Bettina E. Munson argued the cause for respondent (Lomurro, Davison, Eastman & Muñoz, P.A., attorneys; ?Ms. Munson, of counsel; ?Carrie A. Lumi, on the brief). In this post-judgment matrimonial matter, plaintiff, Y.A.B., appeals from a December 16, 2011 order of the Family Part vacating court-imposed restraints on the parenting time of her former husband, defendant A.C.B., and awarding defendant counsel fees of $7,516.50. By way of background, the parties were married in 2003 and had two sons together, born in 2004 and 2007. ? They were divorced on January 11, 2011 by a final judgment (FJD) that incorporated a matrimonial settlement agreement (MSA). The MSA provides for joint legal custody of the two children, then six- and three-years of age respectively, and designates plaintiff the primary residential custodian. ? The MSA also specifically states that defendant has a “history of substance abuse” and further stipulates that his parenting time during the pendente lite stage was supervised while defendant underwent alcohol abuse treatment through Alcoholics Anonymous (AA) and therapy. Article II?of the MSA obligated defendant to “continue to attend AA meetings, the number of meetings and duration of attendance shall be at the direction of [his] psychologist.” ? Defendant further agreed that if his psychologist determined that continued treatment through AA was no longer necessary, his psychologist would advise plaintiff of this in writing. ? Moreover, “[s]hould the Wife believe, in her sole judgment, that the Husband is under the influence of a substance when he appears for parenting time, then the Wife, in her sole discretion may decline to turn the children over to the Husband.” Otherwise, the MSA sets forth a schedule for unsupervised parenting time. ? Specifically, defendant enjoys parenting time with the children one weekend per month from Friday evening until Sunday evening, and from Saturday at 5:00 p.m. until Sunday at 5:00 p.m. on all other weekends. ? This is in addition to his weekday parenting time on Tuesday and Thursday evenings. Notably, defendant has never been denied parenting time because plaintiff suspected him of being under the influence. ? That is until November 16, 2011, when plaintiff filed an order to show cause (OTSC) alleging that defendant had placed the children at risk and seeking to restrict defendant from having unsupervised contact with the children subject to his undergoing a risk assessment and substance abuse evaluation. ? In support of her emergent application, plaintiff submitted a report of a private investigator who, over seven days of surveillance in October, had observed defendant purchasing liquor from three stores in one week, confirming plaintiff’s own observation of defendant entering a liquor store as recent as October 9, 2011. ? Plaintiff also submitted photographs defendant posted on Facebook showing him partying at a bar on October 26, 2011. ? In addition, according to plaintiff, defendant had been photographed holding a bottle of beer at a child’s birthday party hosted by a mutual friend only five days after their divorce. ? This same friend also told plaintiff in March 2011 that defendant continued to consume alcohol and that defendant’s girlfriend had recently broken up with him because of his continued alcohol abuse. ? Defendant’s girlfriend also supposedly told the friend that she found a cup of alcohol in defendant’s home while he was driving the children back to plaintiff. On the same day it was filed, the Family Part judge denied plaintiff’s OTSC on procedural grounds, namely, the order was not accompanied by a verified complaint, Rule 4:67–1, and plaintiff had not served the order on defendant or his counsel, Rule 4:67–3; ?Rule 5:4–3(b). ?Several days later, on November 22, 2011, following a conference on November 18, 2011,1 the court entered an order converting plaintiff’s OTSC into a motion returnable December 16, 2011. ? Pending the return date, defendant consented to having his parenting time supervised by his parents and agreed not to drive the children.2 ?The order also gave notice that plaintiff would move to make these restraints permanent and to compel defendant to undergo a substance abuse evaluation and risk assessment. Defendant opposed the motion and in his responsive certification, denied consuming alcohol and represented that he has been sober “since April 4, 2010”; ?acknowledged suffering from substance abuse and claimed to go to AA meetings once or twice per week; ?admitted purchasing alcohol as confirmed by plaintiff’s private investigator, but for other people; ?admitted that the photographs he posted on Facebook showing him at a bar in October 2011 were accurate, but denied drinking any alcohol; ?and asserted that the beer he was seen holding in another photograph was for his girlfriend. Thereafter, on December 12, 2011, plaintiff proffered a certification from defendant’s ex-girlfriend who described defendant’s drinking at least as of March 2011, when she broke up with him. ? Because the certification was out-of-time, Rule 5:5–4(c) (requiring service of all papers responding to opposition to be filed “not later than 8 days before the return date”), the judge declined to formally accept the filing, although he read and considered its contents and found that it “didn’t ? add[?] anything because of the time frame we are talking about.” Following argument, the court denied plaintiff’s request in its entirety, reinstated defendant’s parenting time, and awarded him compensatory parenting time. ? In doing so, the court found plaintiff’s application to be unsupported and without merit: I find this application to be frivolous on its face. ? And the reason I say that is because there is no question that [defendant] has a substance abuse problem. ? He acknowledged that in the matrimonial settlement agreement. ? He acknowledges it today. And he is dealing with his sobriety and his substance abuse problem daily. ? It is a struggle from which he will never truly recover because there is no such thing as complete recovery. ? Does having exposure to alcohol, going into liquor stores equate with him drinking? ? No. Is it the wisest course of action even as a host? ? Probably not given his problem. ? But he’s not prevented from doing that. And to make the leap in logic that he is, by going into a liquor store, ? therefore consuming? ?And I don’t think it’s warranted to say, to go from that leap in logic to say that he is using or under the influence when the children are in front of him. The Court screenings do not screen for alcohol. ? They screen for drugs. ? But the plaintiff has the ability, in fact there was reference to it in the papers, to get one of those breathalyzer devices. ? Every time he picks up the kids, he can blow into it, and every time he drops them off, he can blow into it to show her, to satisfy her, that’s in their agreement. ? She has the right to control this. What she’s done is abused that right because she’s taken a leap in logic that just because he had action over here, he must be drinking when he’s got the kids. ? I don’t accept a certification that can’t be cross examined at this point. ? It doesn’t tell me anything and it tells me things about what happened back in March, not at any time during [the] time frame that we are talking about. ? Which was October. And the key to me was that the plaintiff has never, except this week, refused the defendant parenting time. ? Ever. Based on his purported substance abuse. ? So, that leads me to the conclusion that this is in turn frivolous. ? And that’s why I believe ? it is the plaintiff’s responsibility. This is filed right before a holiday. ? It’s the first holiday he’s going to get in years with the children. ? And one questions the motive. In its written statement of reasons accompanying its order of December 16, 2011, the court reiterated that it is “satisfied that plaintiff’s entire filing in this matter was devoid of factual basis and was certainly not supported by evidence such that imminent harm was likely to the children. ? There is no need for a plenary hearing under the evidence presented by plaintiff.” ? Based thereon, the court also awarded defendant counsel fees and costs of $7,516.50. On appeal,3 plaintiff raises the following issues: I.?ON THE DISPUTED GENUINE ISSUES OF MATERIAL FACT PRESENTED, THE COURT ABUSED ITS DISCRETION BY VACATING THE RESTRAINTS ON DEFENDANT’S PARENTING–TIME WITHOUT FIRST CONDUCTING A PLENARY HEARING TO DETERMINE WHETHER THE EVIDENCE SUBMITTED BY PLAINTIFF OF DEFENDANT’S POST–JUDGMENT ALCOHOL AND/OR SUBSTANCE ABUSE PRESENTS A RISK TO THE PARTIES’ MINOR CHILDREN. II.?THE COURT ABUSED ITS DISCRETION IN ASSESSING COUNSEL FEES AGAINST PLAINTIFF ON HER APPLICATION TO PROTECT THE BEST INTERESTS OF THE PARTIES’ MINOR CHILDREN AND, IN ANY EVENT, WITHOUT AT LEAST AFFORDING HER A PLENARY HEARING TO ASSESS THE BONA FIDES OF THE ISSUES PRESENTED. III.?GIVEN THE JUDGE’S EVIDENT HOSTILITY TOWARD PLAINTIFF, CREDIBILITY FINDINGS ON THE PAPERS SUBMITTED, AND AGGRESSIVE ASSESSMENT OF COUNSEL FEES AGAINST PLAINTIFF, THE JUDGE MUST BE DISQUALIFIED AND THE MATTER REASSIGNED ON REMAND. We find no merit in the first and third contentions, and remand only for a reconsideration of the counsel fee determination. I A plenary hearing is not required in every contested matrimonial proceeding. ? See Shaw v. Shaw, 138 N.J.Super. 436, 440 (App.Div.1976). ? On the contrary, a trial judge may “hear and decide motions or orders to show cause exclusively upon affidavits.” ?Id. at 440 (citing R. 1:6–1; ?R. 1:6–6; ?R. 4:67–5; ?Tancredi v. Tancredi, 101 N.J.Super. 259, 262 (App.Div.1968), superseded on other grounds by statute, N.J.S.A. 2A:17–56.23a)). ? A hearing on parenting time issues is only required “when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute.” ?Hand v. Hand, 391 N.J.Super. 102, 105 (App.Div.2007); ?see also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (In order to obtain a hearing, “a party must clearly demonstrate the existence of a genuine issue as to a material fact.”). “[W]here the need for a plenary hearing is not ? obvious, the threshold issue is whether the movant has made a prima facie showing that a plenary hearing is necessary.” ?Hand, supra, 391 N.J.Super. at 106. ? This rule was crafted with an eye to judicial economy, given that “practically every dispute in the matrimonial motion practice involves a factual dispute of some nature.” ?Klipstein v. Zalewski, 230 N.J.Super. 567, 576 (Ch. Div.1988). ? “An inflexible rule requiring a plenary hearing” on every matrimonial application “would impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants.” ?Shaw, supra, 138 N.J.Super. at 440. Thus, in seeking to restrict or suspend defendant’s parenting time, the “threshold issue is whether [plaintiff] has made a prima facie showing that a plenary hearing is necessary.” ?Hand, supra, 391 N.J.Super. at 106. ? We conclude that she has not. The premise underlying plaintiff’s claim of error in not conducting a plenary hearing is that the MSA requires defendant to maintain “sobriety” as a “condition precedent to [his] parenting time,” and that her proofs establish a prima facie case of non-compliance. ? She is wrong on both accounts. First, the MSA contains no such prerequisite. ? The agreement allows defendant parenting time “for so long as [he] is in compliance with the balance of Article II regarding his sobriety.” ? Therefore, we refer to Article II’s provisions regarding “sobriety” in full: The parties stipulate that the Husband has a history of substance abuse. ? Prior to the Husband exercising unsupervised parenting time, he will contact his psychologist and authorize his psychologist to speak to the Wife, in order for the Wife to provide a history to the psychologist if such communication is permitted by her Code of Ethics. ? It is understood between the parties that the psychologist shall not make any comment to the Wife regarding the Husband’s treatment and will honor the Husband’s psychological patient privilege. ? The parties acknowledge and agree that the Memorandum of Understanding attached hereto ? will thereafter be signed and [its provisions requiring that defendant’s parenting time be supervised] will be deleted from the Memorandum of Understanding. ? The Husband acknowledges and agrees that he shall continue to attend AA meetings, the number of meetings and duration of attendance shall be at the direction of the psychologist. ? The Husband further acknowledges and agrees that he shall continue to seek treatment from his psychologist until the psychologist determines that he may be released from treatment. ? In the event the psychologist releases the Husband from treatment and/or terminates the Husband from treatment, she shall so advise the Wife by issuing a letter to the Wife. The Husband hereby authorizes such letter to be issued from the psychologist to the Wife. Should the Wife believe, in her sole judgment, that the Husband is under the influence of a substance when he appears for parenting time, then the Wife, in her sole discretion, may decline to turn the children over to the Husband. ? Should the Husband choose, he has the right to raise this issue with a Superior Court Judge and both parties will be bound by the determination of the Court as to how future parenting time shall occur. Thus, the MSA conditions defendant’s parenting time on his undergoing psychological treatment and attending AA meetings, not on total alcohol abstinence. ? Notably, none of plaintiff’s evidence addresses the question whether defendant complied with his treatment plan, much less establishes any deviation therefrom. To be sure, “[i]n issues of custody and visitation, ‘[t]he question is always what is in the best interests of the children, no matter what the parties have agreed to.’?” ?P.T. v. M.S., 325 N.J.Super. 193, 215 (App.Div.1999) (quoting Giangeruso v. Giangeruso, 310 N.J.Super. 476, 489 (Ch. Div.1997)). ? Even so, plaintiff has produced no evidence that defendant’s actions negatively impacted the safety or welfare of their children. ? At most, her proofs suggest defendant may have consumed alcohol as far back as March 2011 and since then has been observed purchasing alcohol in liquor stores as recently as October 2011. ? But the inference she draws from this period of surveillance is based on speculation and conjecture. ? Significantly, plaintiff has offered no competent proof that defendant ever consumed alcohol in the presence of their children, much less was under the influence at any such time. Nor has plaintiff demonstrated that defendant ever violated the terms and conditions of the MSA requiring defendant to undergo psychological treatment and attend AA meetings, or that the children’s best interests would be harmed by continuing their unsupervised visitation with their father. ? Indeed, at the time of the MSA, plaintiff knew of defendant’s alcohol problem and nevertheless stipulated to his unsupervised parenting time conditioned on his attendance at AA meetings and psychological counseling. ? She offers nothing new since then to warrant a change in that arrangement, except speculation from her private-eye surveillance, subjective concerns expressed by a mutual friend, and outdated information from an ex-girlfriend that, cumulatively, fail to establish the threshold showing for a plenary hearing. II The fact that plaintiff did not produce sufficient proof to establish a prima facie case, however, did not necessarily render her application “frivolous,” as found by the motion judge in awarding defendant counsel fees. ? That determination is conclusionary at best. Granted, review of fee determinations is highly deferential. ?“?‘Fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.’?” ? Packard–Bamberger & Co. v. Collier, 167 N.J. 427, 443–44 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Awards of counsel fees in Family Part matters are governed by Rule 5:3–5(c): Subject to the provisions of R. 4:42–9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce, ? custody, parenting time, ? enforcement of agreements between spouses, ? and claims relating to family type matters. ? In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42–9, the following factors: ?(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. Under N.J.S.A. 2A:34–23, consideration of the factors is mandatory, not permissive: ?“[T]he court shall ? consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.” ?(Emphasis added). In awarding counsel fees to defendant in this matter, the motion judge simply stated: The Court having considered the totality of the circumstances and applying the standards set forth in N.J.S.A. 2A:34–23 and Williams [v. Williams, 59 N.J. 229, 233 (1971),] finds that the plaintiff shall be responsible for defendant’s counsel fees and costs associated with this application. This statement is, in our view, inadequate to support the award of counsel fees. “Simple omnibus references to the rules without sufficient findings to justify a counsel fee award makes meaningful review of such an award impossible, thus necessitating a remand.” ?Loro v. Colliano, 354 N.J.Super. 212, 228 (App.Div.), certif. denied, 174 N.J. 544 (2002). ? In Clarke v. Clarke, we remanded a judge’s decision to award counsel fees because it “did not address the pertinent factors under Rule 5:3–5(c), and failed to make the required findings set forth therein.” ?359 N.J.Super. 562, 572 (App.Div.2003). ? Similarly, in Gordon v. Rozenwald, we remanded an award of counsel fees because it was unsupported by adequate findings on issues critical to application of the law. ? The judge’s decision does not address the following: ?[the defendant’s] fees and costs in defending against [the plaintiff’s] application; ?fees [the defendant] paid on behalf of [the plaintiff] during the course of the proceeding; ?or [the plaintiff’s] ability to contribute to her own fees in light of the retroactive increase in support. [380?N.J.Super. 55, 79 (App.Div.2005).] So too here. ? As noted, the motion judge merely indicated that he had “considered the totality of the circumstances and appl[ied] the standards set forth in N.J.S.A. 2A:34–23 and Williams?[, supra,]”, without any analysis of the factors set forth in Rule 5:3–5(c). ?Equally bereft of any reasoning was the judge’s conclusion that plaintiff’s motion was “frivolous on its face.” ? While the “good or bad faith of either party” is certainly a factor to be considered in determining whether a counsel fee award is “reasonable and just[,]” N.J.S.A. 2A:34–23; ?see also R. 5:3–5(c) (courts must consider “the reasonableness and good faith of the positions advanced by the parties”), a lone, unsupported statement that the motion is frivolous does not support a counsel fee award.4 ?Moreover, “fees may not be imposed merely as a punitive measure against a family matter litigant.” ? Pressler & Verniero, Current N.J. Court Rules, comment 4.3.3 on R. 5:3–5 (2013). ? Given the inadequacy of the analysis otherwise required to support a counsel fee award, we are constrained to remand on this issue for further findings of fact and conclusions of law. ? We disagree, however, with plaintiff’s contention that the matter be remanded to a different judge, as we discern no basis for that relief in the record. The December 16, 2011 order is affirmed in all respects save the award of counsel fees, which we remand for further proceedings consistent with this opinion. FOOTNOTES 1. FN1.?The judge indicated that defendant submitted a urine sample that day, with negative results for alcohol and the drug Xanax. 2. FN2.?According to defendant, he also voluntarily submitted himself to weekly substance abuse screenings at the Monmouth County Court House, all of which have come back “clean.” 3. FN3.?We denied plaintiff’s emergent application for a stay of the Family Part’s December 16, 2011 order, but directed that defendant submit to five-panel testing for the presence of cocaine, amphetamines, marijuana, phencyclidine, opiates, and alcohol on the first three Monday mornings following his weekend parenting time. ? If the first three tests are negative, testing would be changed to the first Monday of every month following weekend parenting time. 4. FN4.?We recognized that the motion judge found that it required a “leap in logic” to infer from the fact that defendant bought alcohol that he was necessarily abusing it. ? But that finding appears to be no more than a determination whether plaintiff’s circumstantial proof sufficed to meet the applicable prima facie threshold for the conduct of a plenary hearing, rather than a decision as to the good or bad faith of the movant. PER CURIAM