M.A.P. VS. N.G.R. (FV-12-1649-17, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0529-19T3

M.A.P.,

Plaintiff-Appellant,

v.

N.G.R.,

Defendant-Respondent.
________________________

Submitted November 12, 2020 – Decided January 7, 2021

Before Judges Ostrer and Accurso.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FV-12-1649-17.

Gomperts Penza McDermott & Von Ellen, LLC,
attorneys for appellant (Marisa Lepore Hovanec, of
counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM
 In this family case, plaintiff appeals from the trial court's order t hat she

pay defendant's counsel fees. The court found that plaintiff engaged in motion

practice in bad faith. Because the record does not support the court's finding ,

and the court applied the wrong legal standard, we reverse.

I.

Plaintiff's motion practice arose out of a longstanding domestic violence

case. Plaintiff obtained a final restraining order (FRO) by default against

defendant in April 2017. The FRO awarded plaintiff temporary custody of the

parties' then six-month-old daughter; barred parenting time; and ordered that

defendant pay $250 in weekly child support. Almost a year later, the court

modified the custody arrangement after finding that defendant had

"satisfactorily completed the alcohol/drug evaluation/treatment anger mgmt.

[sic] & psychiatric evaluation set forth in the FRO." The amended order granted

the parties joint legal custody; designated plaintiff the parent of primary

residence, and defendant, parent of alternate residence. The order included a

parenting time schedule that granted defendant gradually increasing time with

his daughter, with parenting time exchanges at a police department. The parties

were permitted to communicate by text message regarding the child. The court

reserved decision on plaintiff's application to modify child support, ordering that

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it be relisted for a hearing after defendant provided certain financial information.

The court also reserved on the parties' counsel fee requests.

In May 2018, the court amended the FRO again, to modify child support.

The court increased defendant's obligation to $305 weekly, retroactive to

October 4, 2017. The new order did not include a regular arrears payment, nor

did it oblige defendant to pay a lump sum for the arrears created by the

modification. Counsel fees were not addressed.

Two months later, in July 2018, prompted in part by defendant's alleged

violation of the FRO, plaintiff filed a motion asking the court to suspend

overnight visitation pending defendant's completion of anger management and

the recommendation of a court-appointed evaluator. She asked the court to

require defendant to submit to an alcohol abuse evaluation and also requested

that the court require defendant to pay arrears in a lump sum; and award her

fees. She filed the motion after the court denied without prejudice an order to

show cause, deeming her requests for relief non-emergent.

In her supporting certification, plaintiff stated that police arrested

defendant for harassing plaintiff after using coarse and profane language in the

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police's presence, during a child transfer. 1 She also said that defendant stayed

overnight at unsuitable places with the child, and took the child to a home where

people abused drugs and alcohol. She also contended that the child was returned

from parenting time with unexplained bruises and unchanged diapers, and the

child once complained that her private area hurt and someone touched her there.

Plaintiff's counsel also noted that defendant filed a domestic violence complaint

against her, but he was denied a temporary restraining order.

Defendant cross-moved for various forms of relief, to expand his role in

his daughter's life; to increase his access to information about the child and to

participate in decision-making; to conduct child transfers at the child's childcare,

daycare, or school without the other party present, instead of at the police

department; and to require the parties to use Family Wizard for communications

about the child. Defense counsel argued that defendant's most recent arrest for

violating the restraining order should not be considered because the charge was

not yet resolved. Counsel also denied that his client mistreated his daughter, or

that he exposed her to substance abuse. Referring to an off-the-record

discussion in chambers, defense counsel asserted that plaintiff also made a

1
Plaintiff provided only an excerpt from her supporting certification. We rely
on that, and her counsel's oral argument in October 2018 for an understanding
of her requests for relief.
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baseless referral to the Division of Child Protection and Permanency. Regarding

child support, counsel conceded that the child support payments were

interrupted. While self-employed, defendant paid child support through

Probation, but when he obtained a job with another employer, Probation was

slow to implement garnishment of the $305 amount. Counsel contended that

Probation ultimately ordered payment of $30 a week toward arrears, although

the record does not include that order.

Defendant also requested counsel fees, contending that plaintiff filed her

motion in bad faith, without the requisite change in circumstances to justify

modifying parenting time. Counsel characterized it as a substitute for an appeal

of the parenting time order entered earlier that year. In support of his request,

defense counsel noted that the trial court — by a different judge — had denied

emergent relief.

Plaintiff's counsel responded that plaintiff had presented new

circumstances to justify modifying parenting time. Regarding defendant's

request for medical and school information, counsel stated that plaintiff

regularly provided it, and that defendant was entitled to communicate with

medical providers and educators. Plaintiff did not oppose utilizing Family

Wizard.

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 In the trial court's oral decision after argument in October 2018, the court

noted that the parties disputed various factual matters, presenting "a bunch of he

said, she said because it's unsubstantiated and uncorroborated information." The

court evidently did not deem the factual disputes material to resolve or to justify

a plenary hearing. Regarding the alleged bruises, the court observed that

children sometimes fall, and bruises also manifest themselves days after an

incident. The court did not address plaintiff's allegations regarding defendant's

violation of the FRO at the police station.

The judge required that pick-up and drop-off continue at the police

department, and did not alter the parenting times. Noting plaintiff's consent, the

court ordered that defendant receive contact information for medical providers

and educators; and that he be permitted to attend the child's extra-curricular

events so long as he sits as far away from plaintiff as possible.

Regarding child support, the court made no findings regarding defendant's

arrearages. Defendant agreed on the record to pay unspecified lump sums to

reduce his arrearages. The court's order provided only that he "endeavor to

satisfy the child support arrearages in a timely fashion."

Noting the high level of discord between the parties, the court ordered that

each undergo evaluations within ninety days, by providers of their choice from

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a list the court provided, to determine if they needed substance abuse treatment

or anger management therapy. The court stated it would revisit the issues upon

receiving the evaluations.

The court also reserved decision on counsel fees. The judge stated on the

record, apparently referring only to defendant's request for fees:

I'm going to hold off on that. I'm going to reserve, only
because I want to see what the evaluations tell me.
Because the evaluations might tell me something that
raises an eyebrow, that rings a bell, and I'm going to say
wait a minute, wait a minute, [M.A.P.] had a reason
why she needed all this stuff. And she had a reason
why she came back here today.

The parties returned to court in February 2019. Both parties had

undergone the required evaluations. 2 Defense counsel contended the only issue

that remained was counsel fees, and the motion judge agreed. Defense argued

that plaintiff's prior motion was frivolous, and plaintiff secured no relief in her

favor. He contended that his client had fully complied with his child support

obligation; that Probation was to blame; and, based on his additional payments,

he had reduced his arrears by half.

Plaintiff appeared at the hearing pro se. She stated she could no longer

afford her legal bills after spending over $30,000. She explained that she filed

2
They are not in the record before us.
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her motion because defendant had violated the FRO by directing coarse and

profane language at her at the police station. She asserted that the court denied

her order to show cause as non-emergent because her counsel delayed several

weeks in filing the application after the precipitating incident at the police

station. She asserted defendant was found guilty of violating the FRO.

Defense counsel responded that defendant pleaded guilty only to

disorderly conduct in municipal court. After the hearing, plaintiff submitted to

the court a letter she received from the Middlesex County Prosecutor's Office,

regarding "State v. [N.G.R.] Violation of Restraining Order." The letter stated

that defendant appeared before Superior Court Judge Deborah J. Venezia on

October 19, 2018 and was found guilty, required to pay a monetary penalty of

$225, received 2 days of jail time with credit for time served, and required to

obey the FRO if still active. However, the letter did not state what crime or

offense defendant was found guilty of.

During oral argument, the court counseled the parties to attempt to

cooperate; and, directing her comments to plaintiff, to resist the impulse to

complain about "petty" violations of parenting time arrangements.

Before issuing her decision on fees, the judge encouraged defense counsel

and defendant to discuss reducing or waiving defendant's demand for fees.

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Counsel for defendant stated the billings would need to be updated; but as of

that date, defendant owed "about $12,000," and he would accept $5,900 to

resolve his counsel fee request. Plaintiff responded that she was not aware the

purpose of the hearing was to decide counsel fees, and she renewed her request

for fees, noting that she owed her attorney $5,000 and defendant owed her

$1,000 in child support arrears. The motion judge abruptly stopped the hearing

and ordered updated certifications filed with the court, without setting forth any

decision on the record.

Defendant's counsel thereafter certified that his client incurred $15,225.75

in legal fees, and counsel requested that plaintiff pay the amount in full. Plaintiff

submitted to the court documents indicating she owed at least $8,000 to the two

firms she used before representing herself. 3

Six months later, without additional argument, the court entered an o rder

granting defendant's request for fees. The court did not provide a separate

statement of reasons. However, citing Williams v. Williams, 59 N.J. 229, 233

(1971), the order stated, "when deciding whether to award counsel fees, the trial

judge must consider the requesting party's need, the requesting party's financial

3
The amount may have exceeded $9,000, if one considers a July 2018
certification of her first counsel, but the record before us does not clearly
indicate that plaintiff submitted that certification to the court.
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ability to pay, and the requesting party's good faith in instituting or defending

the action." Citing Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992),

the court explained that "bad faith, in the context of counsel fee awards, has

been construed to signify that a party acted with a malicious motive, so as to be

unfair, and to use the court system improperly to force a concession not

otherwise available." The court found that "[p]laintiff has acted in bad faith, as

her motion re-litigated issues that were already decided upon — child support

modification — and did not provide evidence of a substantial change of

circumstances."

Noting that defense counsel has asked for payment of $15,225.75, the

court ordered plaintiff was required to pay $5,938.04, which the court deemed

"reasonable and fair in this case." If plaintiff failed to pay the amount by

October 20, 2019, she was required to appear in court on October 25, 2019 "to

advise this [c]ourt why she should not be held in contempt." The court denied

plaintiff's motion for fees without explanation.

Plaintiff thereafter filed this appeal, challenging the court's fee decision.4

4
After the deadline for filing his brief and appendix passed, defendant filed a
letter stating he would not be filing a brief or appendix. He nonetheless included
argument in support of affirmance and presented new facts not presented to the
trial court. We decline to consider these arguments. The brief was untimely

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 II.

According to Rule 4:42-9(a), fees may be awarded in a family action

pursuant to Rule 5:3-5(c). A family action includes disputes between unmarried

persons over child support and parenting time. See Fall & Romanowski, N.J.

Family Law, Child Custody, Protection & Support, § 40:3-3(b) (2020); R. 5:3-

5(c) (authorizing fee allowance in an action involving claims of support, custody

and parenting time).

Rule 5:3-5(c) includes a mandatory, but not exhaustive, list of factors that

a trial court must consider before deciding to award fees and setting the amount.

See Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (stating that the court

shall consider the factors "[t]o determine whether and to what extent such an

award is appropriate"); R. 5:3-5(c) (stating the court "should consider"

enumerated factors); N.J. Family Law, Child Custody, Protection & Support, §

40:3-2 (describing factors as "mandatory criteria"). A court shall 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)

and did not conform with the Court Rules. See R. 2:6-2(b) (regarding letter
briefs). And we shall not consider facts "that were not provided to the trial
court." Matison v. Lisnyansky, 443 N.J. Super. 549, 551 n. 1 (App. Div. 2016).
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 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.

[R. 5:3-5(c).]

Although we shall "disturb a trial court's determination on counsel fees

only on the 'rarest occasion,' and then only because of [a] 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)), this appeal presents one

of those rare occasions. A court abuses its discretion when it does not provide

a rational explanation for its decision; when it relies on inappropriate factors or

fails to consider relevant factors; or the court makes a clear error in judgment.

Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quotations and

citations omitted). In particular, an appellate court is not obliged to defer to a

fee award when the trial court, as here, has not considered the mandatory factors

under Rule 5:3-5(c), see Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562,

572 (App. Div. 2003) (vacating counsel fee award where trial court did not

address Rule 5:3-5(c) factors), and instead, has misstated the legal standard for

awarding fees.

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 Turning to the Rule 5:3-5(c) factors, the court failed to consider the

parties' financial circumstances, their respective ability to pay their own fees,

and the amount of fees already incurred and paid. See R. 5:3-5(c)(1), (2), (4),

(6); see also Barr, 418 N.J. Super. at 47 (reversing a trial court's grant of counsel

fees, in part because the court "failed to analyze the parties' relative incomes or

plaintiff's ability to pay her own counsel fees"). The record reflects plaintiff has

legal bills of at least $8,000. She stated she had already expended over $30,000

in fees. According to the child support order, defendant's income is almost

seventy-five percent more than plaintiff's. At the second motion hearing,

plaintiff informed the court, while under oath, she was proceeding pro se as she

could no longer afford her own legal bills. Notably, the court misstated that

Williams v. Williams, 59 N.J. 229, 233 (1971) requires a court to consider only

"the requesting party's need, the requesting party's financial ability to pay, and

the requesting party's good faith in instituting or defending the actio n."

The court also erred in finding plaintiff had instituted the litigation in bad

faith. "[B]ad faith for counsel fee purposes relates only to the conduct of the

litigation." Mani v. Mani, 183 N.J. 70, 95 (2005). "An award of attorney's fees

to the adverse party is appropriate if the court finds the proceedings to have been

frivolous and instituted for the purpose of harassment as well as abuse of the

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judicial system." Pressler & Verniero, Current N.J. Court Rules, cmt 4.3.3 on

R. 5:3-5 (2021). By referring to the "reasonableness" and the "good faith" of

the positions a party has advanced, the rule indicates two discrete, but related

concepts. See Louis & Seiden, N.J. Family Law, Divorce, Alimony & Property

Division § 19:7-2(b) (2021). Advancing a losing argument, even if "ill-founded

and perhaps misguided," does not, by itself, prove bad faith. Slutsky v. Slutsky,

451 N.J. Super. 332, 367 (App. Div. 2017) (quoting Tagayun v. AmeriChoice of

N.J., Inc., 446 N.J. Super. 570, 580 (App. Div. 2016)). "Examples of bad faith

include misusing or abusing process . . . intentionally misrepresenting facts or

law, or otherwise engaging in vexatious acts for oppressive reasons." Ibid.

(citing Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992)).5

In finding that plaintiff acted in bad faith, the court applied the wrong

standard, and mischaracterized plaintiff's motion. The trial court found that

plaintiff acted in bad faith because her "motion re-litigated issues that were

already decided upon — child support modification — and did not provide

5
Although the Slutsky court also equated "bad faith" with "seeking relief not
supported by fact or law," 451 N.J. Super. at 367, we assume, by its citation to
Borzillo, that it meant to say, "[t]o seek relief which one knows or should know
that no reasonable argument could be advanced in fact or law in support thereof."
Borzillo, 259 N.J. Super. at 293. As the Slutsky court observed, honestly
presenting an "ill-founded" argument is not bad faith.
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evidence of a substantial change of circumstances." Even if this were true, that

falls short of a finding that plaintiff misused or abused process, intentionally

misrepresented facts, or engaged in vexatious acts with the purpose to oppress.

However, the court grossly mischaracterized plaintiff's motion. Plaintiff

did not seek to relitigate issues by seeking a modification of child support.

Rather, plaintiff sought enforcement of the previous order by a lump sum

payment of arrears. The May 2018 child support order increased plaintiff's

award by $55 a week retroactive several months, but did not address how arrears

would be paid. Plaintiff was not required to demonstrate a change in

circumstances to secure an order pertaining to an issue the court had not

previously addressed. Furthermore, defense counsel conceded in argument in

October 2018 that there was a subsequent gap in payments which evidently

increased defendant's arrears even more. Although the trial court neither

established arrears, nor addressed defendant's capacity to pay a lump sum, the

court did vaguely direct defendant to try to reduce the arrears. So, to that extent,

plaintiff partially prevailed on her only child-support-related claim.

Furthermore, the court ignored the thrust of plaintiff's motion, which was

sparked by defendant's then-alleged violation of the FRO, and also reflected

plaintiff's concerns about defendant's care of the child[]. Plaintiff sought

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suspension of overnight parenting time pending anger management and

substance abuse evaluation. The court ordered defendant to submit to an

evaluation.6 Particularly since the court failed to make findings regarding

plaintiff's factual allegations, the court lacked a basis for deciding they were

raised in bad faith. Even after defendant was convicted before Judge Venezia,

the trial judge declined to make a finding regarding defendant's compliance with

the FRO. In sum, the court's finding that plaintiff litigated in bad fai th is

unsupported by law or fact.

Lastly, in arriving at a counsel fee award of $5,938.04, which it deemed

"reasonable and fair," the court provided no basis as to how it arrived at the

amount. In determining counsel fees, the court was required to "determine the

'lodestar,' which equals the number of hours reasonably expended multiplied by

a reasonable hourly rate." J.E.V. v. K.V., 426 N.J. Super. 475, 493-94 (App.

Div. 2012) (quoting Yueh v. Yueh, 329 N.J. Super. 447, 464 (App. Div. 2000)).

Plaintiff also asks us to reverse the trial court's denial of her request for

counsel fees. Our conclusion that the court erred in granting defendant fees does

not compel an award of counsel fees to plaintiff. The record before us does not

6
Without notice of any cross-motion by defendant, the court also sua sponte
ordered that plaintiff submit to an evaluation.
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indicate that plaintiff provided to the trial court an affidavit of services that

addressed all the factors enumerated by RPC 1.5(a), as Rule 4:42-9(b) requires.

Plaintiff also did not provide sufficient information regarding the financial

circumstances of the parties, to enable the court to address the relevant factors

under Rule 5:3-5(c). In sum, the record lacks sufficient grounds to justify an

award of fees to plaintiff.

We therefore reverse the trial court's award of fees to defendant and affirm

the trial court's denial of fees to plaintiff.

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