Opinion
DOCKET NO. A-5653-13T4
12-01-2016
K.J., Plaintiff-Respondent, v. T.A.F., Defendant-Appellant.
T.A.F., appellant pro se. Shapiro, Croland, Reiser, Apfel & Di Iorio, LLP, attorneys for respondent (Laura Ortizio, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Kennedy. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2265-11. T.A.F., appellant pro se. Shapiro, Croland, Reiser, Apfel & Di Iorio, LLP, attorneys for respondent (Laura Ortizio, of counsel and on the brief). The opinion of the court was delivered by ESPINOSA, J.A.D.
The issue on appeal is limited to whether the family court properly awarded counsel fees to plaintiff resulting from defendant's motion seeking custody of their child. We affirm, substantially for the reasons set forth by Judge Mary F. Thurber in making the counsel fee award.
Since filing the appeal, we have been advised that defendant has passed away. Because no motion has been made to withdraw the appeal or to substitute his estate as a party, we will consider this appeal as though it is still pursued by defendant. See State v. De Bellis, 174 N.J. Super. 195, 198 (App. Div. 1980); see also State v. McCabe, 201 N.J. 34, 44 (2010) (noting that "the New Jersey Constitution does not restrict the exercise of judicial power to actual cases and controversies"); N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 262 (App. Div.) certif. denied, 201 N.J. 153 (2010) (citation omitted) (Where "a party 'still suffers from the adverse consequences to her caused by [a] proceeding,' an appeal from an order in that proceeding is not moot."). --------
I.
Plaintiff and defendant had one child. Plaintiff has primary custody and defendant had visitation rights pursuant to a parenting plan. In May 2011, a Final Restraining Order (FRO) was entered against defendant pursuant to the Prevention of Domestic Violence Act (PDVA) N.J.S.A. 2C:25-17 to -35, finding he had committed assault and harassment against plaintiff. Since then, defendant filed several motions and orders to show cause seeking custody. All defendant's motions were denied. Defendant also filed several complaints with the Division of Child Protection and Permanency (the Division) alleging plaintiff had abused and neglected their child. All these accusations were unsubstantiated.
The counsel fee at issue here was awarded after defendant filed another motion seeking full custody of their child. He alleged plaintiff had "[s]ubstance abuse and mental health" problems and subjected the child to an unsafe living environment. Plaintiff filed a cross-motion and also sought a counsel fee award against defendant. Judge Thurber entered an Amended Final Restraining Order which, in relevant part, ordered defendant to pay plaintiff $7,000 in counsel fees.
II.
We review an award of counsel fees for abuse of discretion. Where the judge follows the law and "makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000); see also Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011); Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). 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. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)); see also Barr, supra, 418 N.J. Super. at 46.
The PDVA allows a court to award a domestic violence victim "monetary compensation for losses suffered as a direct result of the act of domestic violence. . . [including] reasonable attorney's fees . . . ." N.J.S.A. 2C:25-29(b)(4). Such an award "requires no special showing, as an award of counsel fees is a form of 'monetary compensation' under [the PDVA]." N.G. v. J.P., 426 N.J. Super. 398, 422 (App. Div. 2012). However, any awarded counsel fees "must be a direct result of the domestic violence; they must be reasonable; and pursuant to R. 4:42-9(b), they must be presented by affidavit." McGowan v. O'Rourke, 391 N.J. Super. 502, 507 (App. Div. 2007) (citation omitted).
In her Statement of Reasons, Judge Thurber explained that the counsel fee award to plaintiff was made "under [the PDVA] as compensatory damages." Judge Thurber reasoned that, "because these are damages, not simply a rule-based fee award, the impact on defendant is not a factor. Damages reasonably determined to have been caused by the domestic violence are compensable." The court found that a $7,000 counsel fee award was appropriate because defendant "continues to use the court system and legal process in ongoing harassment of plaintiff," forcing plaintiff to hire legal counsel. Furthermore, after reviewing the factors in R.P.C. 1.5, the court also found the counsel fee amount was reasonable.
Judge Thurber found further reason to award plaintiff counsel fees under Rule 4:42-9(a)(1), which permits a court to award counsel fees in family actions in its discretion upon the consideration of the factors listed under Rule 5:3-5(c). She found defendant was in a better financial position than plaintiff because, while plaintiff "continues to struggle to make ends meet," defendant boasted about his new career opportunities as a consultant, speaker, and CEO/founder of a company, as well as the prospect of a book and movie deal. He also claimed to "have access to a pool of attorneys to enter lawsuits." Most significantly, the court found defendant acted in bad faith because his numerous applications seeking custody "lack[ed] legal or factual basis, and [defendant] use[d] the court process to subject plaintiff to offensive verbal attacks in which he attempt[ed] to degrade and humiliate her." In particular, defendant's application for full custody "was not presented in good faith." Furthermore, all of defendant's motion applications were ultimately denied. Because of these factors, among others, the court found the counsel fee award warranted under Rule 4:42-9(a)(1) as well.
Because Judge Thurber's findings are appropriate and supported by the record in this case, they are entitled to our deference. The counsel fee award did not constitute an abuse of discretion and will not be disturbed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION