Opinion
DOCKET NO. A-1204-12T2
02-19-2014
KRISTEN P. BROWN, Plaintiff-Respondent, v. DONALD R. BROWN, Defendant-Appellant.
Donald R. Brown, appellant pro se. Cipriano Law Offices, P.C., attorneys for respondent (Melissa Cipriano and Jessica S. Swenson, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1643-06.
Donald R. Brown, appellant pro se.
Cipriano Law Offices, P.C., attorneys for respondent (Melissa Cipriano and Jessica S. Swenson, of counsel and on the brief). PER CURIAM
Defendant appeals from orders that denied his post-judgment motions for a change of custody, and for reconsideration, and awarded a counsel fee to plaintiff. We affirm the denial of his motions for a change in custody and reconsideration, and remand for further proceedings to determine the appropriate amount of the counsel fee award.
When the parties divorced in July 2006, they entered into a Custody, Parenting Time and Removal Agreement. Two paragraphs of the Agreement are relevant here. Paragraph 1.2 states,
The parties agree that Wife shall have physical custody of the children and Wife shall be the parent of primary residence. Wife shall relocate with the children to Florida.
Paragraph 1.3 states,
The parties stipulate and acknowledge that the State of New Jersey shall retain jurisdiction for all purposes over all issues related to the children regardless of any statutes in any jurisdiction that would indicate otherwise.
The underlying motion represents the third time defendant has sought a change in custody since the parties' divorce. His prior motions, filed in July 2008 and April 2009, were both denied.
Significantly, at the time the court heard his April 2009 motion, Judge Thomas P. Zampino noted that New Jersey no longer had jurisdiction over the custody issue. Judge Zampino noted that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, Florida was now the home state for the children because they had lived in Florida for over two years. In denying defendant's motion, the court stated,
The court here is declining jurisdiction on the issue of custody and the defendant shall make such application should he desire, in Florida, which is the home state of the children.That instruction was not explicitly incorporated into the order denying defendant's motion, however.
Approximately three years later, defendant brought another motion to change custody in New Jersey, and contends that the provision in the Agreement authorized him to do so. We disagree.
Although we acknowledge that the parties' agreement endowed New Jersey with jurisdiction over issues involving the children, the UCCJEA controls the issue of jurisdiction here. "An agreement between the parties cannot bind the courts of this state to accept subject matter jurisdiction when not permitted by law." Griffith v. Tressel, 394 N.J. Super. 128, 137 (App. Div. 2007). As codified in New Jersey, N.J.S.A. 2A:34-66(a) provides in pertinent part that "exclusive, continuing jurisdiction" over a child custody determination ends when:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; orAs the motion judge here correctly concluded, Judge Zampino had indeed made the determination that plaintiff and the children no longer resided in New Jersey and that Florida had jurisdiction over the matter. The grounds for terminating jurisdiction in New Jersey were even more evident three years later, when the children had lived in Florida for three years longer. Although the determination was not explicitly included in the April 2009 order, it was properly recognized by the motion judge as the law of the case. See Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 228 (1998) (recognizing "that the oral pronouncement of a judgment in open court on the record constitutes the jural act and that the entry of the written judgment is merely a ministerial memorialization thereof" (quoting Mahonchak v. Mahonchak, 189 N.J. Super. 253, 256 (App. Div. 1983))); State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.
Defendant filed a motion for reconsideration. In his supporting certification, he attested to his own good faith and contended that the April 2009 order "did not yield jurisdiction to the State of Florida as required by the UCCJEA." He argued that the parties' "unique" agreement, conferring jurisdiction upon New Jersey regardless of any statutes, had not been addressed by Judge Zampino. In the order denying the motion, the court noted that the "law of the case" had been established in orders entered by Judge Zampino and that defendant had not satisfied the standard for reconsideration.
Defendant's motion for reconsideration was governed by Rule 4:49-2 and was a matter to be exercised in the trial court's sound discretion. Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).
Reconsideration should be utilized only for those cases [that] fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.We discern no abuse of discretion here.
[Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002).]
Finally, defendant challenges the award of counsel fees. He argues that the award of $5,000 exceeds the amount sought by plaintiff ($3500.95), which included anticipated costs for the court appearance. The decision to award counsel fees and the amount thereof is a matter which rests within the discretion of the trial judge. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008); R. 5:3-5(c). An appellate court will disturb a trial court's determination on counsel fees only on the "rarest occasions, and then only because of a clear abuse of discretion." J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Here, the motion judge gave appropriate consideration to the factors set forth in Rule 5:3-5(c) and took particular note of "the reasonableness and good faith of the positions advanced by both parties." The judge observed that the motion here was identical to defendant's prior motions and was filed in New Jersey in violation of the earlier motion judge's directive that any subsequent orders were to be filed in Florida. The judge acknowledged defendant's sincerity in terms of the relief he sought, but found it "bad faith to file a similar application three times when jurisdiction is in Florida." These findings are supported by the record and warrant the award of a counsel fee to plaintiff.
The amount of the fee awarded, however, exceeded the amount of fees documented in the certification supplied in support of the motion. 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 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); Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). 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 award an amount that exceeded the amount of fees that was supported by a certification of services. Accordingly, we reverse the amount of the counsel fee award and remand for further proceedings so that an appropriate counsel fee may be awarded pursuant to the applicable legal principles.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION