Y.A.B. v. A.C.B.
Docket No. A-2158-11T2
Plaintiff appeals an order vacating court-imposed restraints on the parenting time of her former husband and awarding Defendant counsel fees of $7,516.50. Only toward the issue of the judge abusing his discretion as to assessing counsel fees without at least affording a plenary hearing is remanded for reconsideration.
- The parties were married in 2003 and afterwards had 2 sons. The parties were divorced in 2011 with an FJD that incorporated an MSA. Plaintiff received primary custody and there was joint legal custody. Defendant was an Alcoholic. If defendant shows up drunk, in plaintiff’s sole opinion, she may decline parenting time.
- Defendant’s parenting time until late 2011 when plaintiff filed an OTSC alleging defendant place the children at risk and seeking to restrict unsupervised visits. Plaintiff had evidence, from a PI, of Defendant buying liquor 3 times in a week and Facebook photos of him partying at a bar. Also, there was a picture of defendant with a beer bottle in hand at a child’s bday several days after the divorce. Also, a cup of alcohol was supposedly found in his apartment while he was driving the children back to Plaintiff.
- Defendant denied all of these and said he had been clean since April 2010. Plaintiff proffered a certification of Defendant’s girlfriend that he had been drinking as recently as March 2011, however it was out of time and thus not considered. The court then denied Plaintiff’s request in it’s entirety, reinstated defendant’s parenting time and awarded compensatory parenting time. The judge found the OTSC baseless and the fact that she had never deprived him of parenting time in the past, though knowing about his alleged drinking, was an indicator that she abused her power. There was no factual basis and no plenary hearing was needed.
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.
The Plaintiff did not make a prima facie case that there was a genuine issue of material fact.
The Plaintiff must make a prima facie showing that a plenary hearing is necessary, which is demonstrating the existence of a genuine issue of material fact. Hand v. Hand, 391 N.J. Super. 102, 106 (App. Div. 2007); see also Lepis v. Lepis, 83 N.J. 139, 159 (1980).
Plaintiff alleges that Defendant has not lived up to the MSA, which requires him to go to counseling and AA meetings. All of which he has been in compliance with. Plaintiff has produced no evidence that defendant’s actions negatively impacted the safety and welfare of their child.
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 haring to assess the bona fides of the issues presented.
The judge’s statement that Plaintiff is responsible for Defendant’s counsel fees was inadequate.
Simple 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). 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).
Here, the judge simply stated that under a totality of circumstances and applying the standards set forth in NJSA 2A:34-23, Plaintiff shall be responsible for Defendant’s counsel fees and nothing else. There was no analysis. Further, the judge made gave no reasoning why he believed the Plaintiff’s claim was frivolous, only a conclusory statement.
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