Opinion
DOCKET NO. A-2266-14T1
07-21-2016
PAI-SU KANG, Plaintiff-Appellant, v. STEPHEN T. LAN, Defendant-Respondent.
Pai-Su Kang, appellant, argued the cause pro se. Jeffrey C. Green argued the cause for respondent (Green & Green, attorneys; Mr. Green, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0558-08. Pai-Su Kang, appellant, argued the cause pro se. Jeffrey C. Green argued the cause for respondent (Green & Green, attorneys; Mr. Green, on the brief). PER CURIAM
Plaintiff Pai-Su Kang appeals from a December 5, 2014 Family Part order denying her motion for enforcement of the parties' final judgment of divorce (FJD), and related relief. Plaintiff also appeals from the provision in the same order requiring her to pay defendant $3030 for counsel fees and costs incurred in opposing plaintiff's motion. For the reasons that follow, we affirm the denial of plaintiff's motion, but reverse the award of counsel fees and costs.
I.
Plaintiff and defendant Stephen T. Lan were married in New Jersey in December 1997. They had two children, a daughter born in 2000 and a son born in 2002. At the time of divorce, defendant worked as a senior manager at a pharmaceutical company, earning an annual salary of $160,000 as a software engineer. Plaintiff earned a master's degree in nursing, and an MBA in finance. She was also licensed to sell insurance and investment products, and worked on commission as an insurance broker through her own business. The divorcing court found that plaintiff had an imputed annual income of $93,300. See Pai-Su Kang v. Lan, A-4376-12, A-4131-13 (App. Div. May 18, 2015).
Plaintiff filed a complaint for divorce in December 2007. After a 40-day trial, on April 2, 2013, the court issued an FJD and a 122-page written decision. The trial court awarded plaintiff three years of limited duration alimony, payable at a rate of $1,875 per month. Plaintiff appealed from the FJD, and related orders. She separately appealed from an April 7, 2014 order denying reconsideration of a January 16, 2014 order enforcing the judgment of divorce and awarding counsel fees to defendant. The appeals were calendared back-to-back, and were consolidated for purposes of this court's opinion.
In a May 18, 2015 opinion, we affirmed in part, and reversed and remanded in part. See Pai-Su Kang v. Lan, supra, slip op. at 31-32. In particular, we reversed and remanded to "amend the FJD to reflect required adjustments to the division of the retirement accounts and the tax refunds, as identified in this opinion, and for the court to provide its reasons for its valuation of plaintiff's business and the $18,000 of plaintiff's non-retirement accounts exempted from equitable distribution." Id. at 31. We affirmed "[a]s to the remainder of the FJD, and the court's April 7, 2014 order[.]" Ibid. The Supreme Court denied certification. Pai-Su Kang v. Lan, 223 N.J. 557 (2015).
In November 2014, the matter was reopened before the Superior Court. Plaintiff, pro se, sought an order: (1) directing defendant to pay plaintiff $8,000 plus a $50-per-day late penalty for violating the court's parenting order; (2) directing defendant to bear the total cost for the parenting coordinator retroactively; (3) granting plaintiff sole authority to make medical decisions relating to the children's health at shared costs; (4) entering three meeting memos by the parenting coordinator, Amy Shimalla, into a court order; and (5) for such further relief in favor of plaintiff the court deemed appropriate. Defendant filed a cross-motion seeking enforcement of the FJD terms and counsel fees. On December 5, 2014, the court issued an order and accompanying written opinion, denying plaintiff's motion and granting most of the relief requested in defendant's cross-motion, including his request for counsel fees.
Notably, the supporting certification of defendant's counsel sought reimbursement for twenty-two hours of time, without itemization, and failed to address the factors enumerated in RPC 1.5(a), as required by Rules 5:3-5(c) and 4:42-9(b). --------
The court denied plaintiff's application for monetary sanctions pursuant to Rule 5:3-7, because the amounts requested were arbitrary and were not authorized by any previous stipulations relating to parenting time. The court also denied plaintiff's request for defendant to pay all parenting coordinator fees and related costs, citing both parties' failure to strictly comply with the parenting time schedule in the past. Next, the court denied plaintiff's request for sole authority to make medical decisions relating to the children's health, noting New Jersey public policy favoring joint legal custody. The court found no basis to grant plaintiff sole legal custody of the children, but suggested the parenting coordinator as an avenue for helping the parties to resolve medical decisions involving the children. The court further denied plaintiff's request to enter the meeting memos issued by the parenting coordinator into a court order, because the memos resolve issues as they arise and thus are not appropriate to incorporate into a court order; nevertheless, the court noted the parties should fully cooperate with the parenting coordinator's process as required by the FJD. The court granted defendant's "request that the parties continue to use Ms. Amy Shimalla, Esq. [as] the parent coordinator and share in the costs equally[.]"
In addition, the court granted defendant's request that plaintiff share equally in the costs of the court-appointed therapist and comply with the next steps in the court-appointed therapy process. Pertinent to this appeal, the judge granted defendant's request for counsel fees and costs, noting "[d]efendant's counsel has expended time with correspondence with the plaintiff, as a result of the plaintiff's unauthorized correspondence with him[,]" and that plaintiff's "requests require changing the financial agreement between the parties which have already been discussed." This appeal followed.
II.
On appeal, plaintiff asserts three arguments: (1) defendant should be sanctioned pursuant to Rule 5:3-7(a) because he violated the parenting plan order; (2) plaintiff should be allowed to select an alternative parenting coordinator and family therapist; and (3) the court erred in awarding defendant attorney's fees. We see no merit in plaintiff's first two arguments; however, we agree that attorney's fees were not warranted based on the record before the court.
The legal principles governing family matters are well-settled. "[A] family court's factual findings are entitled to considerable deference." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, the scope of appellate review is limited. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). "[F]actual findings and legal conclusions of the [family court] judge [are not disturbed] unless . . . they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence to offend the interests of justice." Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). "Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, [appellate courts] do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
A.
We first address plaintiff's submission that the motion judge erred by denying her motion for Rule 5:3-7(a) sanctions. Plaintiff argues that defendant missed sixty days of parenting time and constantly tried to switch parenting time without any reasonable explanation or excuse. Accordingly, she suggests she is entitled to economic sanctions, and that such sanctions will serve as a "sting" to compel compliance. She also alleges her monetary figure is "not completely arbitrary" because it is calculated based on $133 per day for the 60 days defendant missed.
Rule 5:3-7(a) addresses violations of parenting time orders, and it authorizes the imposition of a monetary sanction when "a party has violated an order respecting custody or parenting time[.]" Upon "finding that a party has violated an order respecting custody or parenting time," a judge of the Family Part has discretion to order a remedy authorized by Rule 1:10-3 and any of the remedies set forth in paragraph (a) of Rule 5:3-7; see, e.g., Milne v. Goldenberg, 428 N.J. Super. 184, 198-99 (App. Div. 2012) (applying an abuse of discretion standard in reviewing a remedy imposed to enforce an order). Imposition of a sanction for a violation requires a showing that non-compliance was inexcusable, which means that the party had the ability to comply but did not. Ibid.; see Pasqua v. Council, 186 N.J. 127, 141 (2006) (noting that coercive incarceration is permissible only where the violation is willful). The remedies available for violations of standing orders are intended to achieve compliance, not to condemn or punish the offending parent. That is consistent with the principle that on every motion involving custody or parenting time, the best interests of the child is the primary consideration. V.C. v. M.J.B., 163 N.J. 200, 227-28 (2000)
We agree with the motion judge — who was thoroughly familiar with all of the relevant facts — that, not only is plaintiff's suggested monetary figure arbitrary, but the issuances of sanctions are entirely within the court's discretion; plaintiff has no right to request or compel sanctions. See State v. Burnett, 198 N.J. Super. 53, 60 (App. Div. 1984) (explaining decisions on how to sanction someone who disobeys a court order, such as a discovery order, are addressed to the discretion of the trial judge), certif. denied, 101 N.J. 269 (1985).
B.
We next address plaintiff's assertion that she is unable to afford the court-appointed parent coordinator and family therapist and her request to have alternative, lower-costing professionals appointed. In the FJD, both parties submitted to the appointment of Amy Shimalla to be parenting coordinator at the parties' joint cost and expense, and Dr. Tamsen Thorpe to be family therapist at the parties' joint cost and expense. Plaintiff has certified that the parenting coordinator costs $385 per hour, and the therapist costs $250 per hour.
Last year, we reviewed the financial picture of plaintiff, and affirmed the imputed salary of $93,300 that plaintiff was capable of earning. Pai-Su Kang v. Lan, supra, slip op. at 2-3. Plaintiff has not demonstrated any change that would require us to revisit this figure, notwithstanding plaintiff's contention and suspect accounting submission that her annual income is now $42,000. Accordingly, we find no abuse of discretion in the court's decision to enforce the FJD, rather than modify its terms.
C.
We finally address plaintiff's assertion that the motion judge erred in awarding defendant $3,030 in attorney's fees. Plaintiff argues that the record lacks an adequate factual or legal basis to support the court's decision awarding $3,030 in counsel fees to defendant. We agree.
An allowance for counsel fees is permitted in a Family Part action, and governed by Rule 5:3-5(c) and Rule 4:42-9. To determine whether and to what extent such an award is appropriate, the court must 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 assessment of counsel fees is discretionary. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). "[Appellate courts] will disturb a trial court's determination on counsel fees 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)).
[R. 5:3-5(c).]
The court's authority to award fees provided by Rule 5:3-5(c) is explicitly subject to the provisions of Rule 4:42-9(b), (c), and (d). In cases such as this, Rule 4:42-9(b) requires all applications for fees to be supported by an affidavit of services addressing the factors set forth in RPC 1.5(a), which include a requirement that a lawyer's fee be reasonable, given "the time and labor required . . . to perform the legal service properly." Similarly, the factors relevant to an award of attorney's fees set forth in Rule 5:3-5(c) require an examination of the fees actually incurred by the parties. See Addesa v. Addesa, 392 N.J. Super. 58, 79 (App. Div. 2007) (finding no abuse of discretion in counsel fee award supported by a detailed certification).
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) (citation omitted). Because the trial court's authority to award counsel fees under the circumstances of this case was limited to an amount that was both reasonable and actually incurred by plaintiff, it was an abuse of discretion to make an award based upon the certification of defendant's attorney that not only failed to provide an itemization of time, but also failed, as noted by the court, to "properly address the [RPC] 1.5(a) factors." Accordingly, we reverse the counsel fee award in favor of defendant.
Affirmed in part, and reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION