MICHAEL A. PARISO, JR. VS. MICHELLE L. COOK (FM-21-0334-15, WARREN…

                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4534-18T2

MICHAEL A. PARISO, JR.,

          Plaintiff-Respondent,

v.

MICHELLE L. COOK,
(f/k/a Michelle L. Pariso),

     Defendant-Appellant.
________________________

                    Argued September 30, 2020 — Decided October 13, 2020

                    Before Judges Haas and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Warren County,
                    Docket No. FM-21-0334-15.

                    Grace E. Kelly argued the cause for appellant (Legal
                    Services of Northwest Jersey, attorneys; Grace E.
                    Kelly, on the briefs).

                    Anthony R. Gualano argued the cause for respondent.

PER CURIAM
      Defendant Michelle L. Cook appeals from an April 8, 2019 order requiring

her to pay all of plaintiff Michael A. Pariso, Jr.'s counsel fees and costs resulting

from an unsuccessful post-judgment emergent application she filed for custody.

We reverse and remand the counsel fee determination for reconsideration.

      The parties had a lengthy divorce process. The complaint for divorce was

filed in February 2015, a marital settlement agreement (MSA) was signed in

August 2017, and the parties were divorced in March 2018. The parties resolved

the custody issues through mediation and signed a memorandum of

understanding in August 2015, which designated defendant parent of primary

residence and plaintiff parent of alternate residence. In pertinent part, pursuant

to the memorandum, plaintiff enjoys parenting time with the parties' son and

daughter from Friday to Sunday three weekends every month, holiday, and

vacation time. When the parties divorced two years later, the judgment of

divorce incorporated the MSA, which maintained the previously agreed to legal

and residential custody designations and contained more detailed terms

regarding the parties' custody and parenting time rights.

      In March 2019, defendant, self-represented, filed an emergent application

alleging plaintiff had assaulted the parties' son during a family gathering at

defendant's brother's home. Defendant sought "temporary full custody" of the


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son, then fourteen years of age, and the daughter, then sixteen, both of whom

according to defendant's certification, reported the assault. Defendant also

reported the incident to police whom advised her to file a municipal complaint ,

which she attached to her emergent application. As a result of defendant's

application, the trial judge entered an order the same day suspending plaintiff's

parenting time pending a return of the matter to court.

      Plaintiff filed a certification in opposition to the emergent application

denying the allegations and seeking dissolution of the temporary restraints,

family counseling, and counsel fees. In addition to plaintiff's certification, he

also filed certifications from his mother and brother, which collectively denied

any abuse and instead claimed the son's injuries were self-inflicted when he had

a tantrum after being asked to clean up in preparation to return to plaintiff.

Plaintiff argued defendant should have contacted him before contacting the

police and filing her emergent application in order to understand what happened

at his brother's residence and urged the court to award fees to deter defendant's

"relentless frivolous litigation." Relying on the certifications alone and before

the parties appeared for oral argument, the trial judge dissolved the restraints.

      On the return date, the parties appeared for a hearing, which according to

the transcript, lasted approximately eight minutes.       Defendant brought the


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children to court and plaintiff brought the eight adults who were present in his

brother's home the night of the incident. Taking testimony only from defendant,

the trial judge asked her if she was present for the incident. She responded she

was not and confirmed that her knowledge was hearsay based on what the

children told her. When the judge learned defendant brought the children,

presumably to corroborate her claims, he stated: "So bringing your ch ildren to

court to involve them in a dispute between you and their father is reprehensible."

The judge took no further testimony and heard brief argument only from

plaintiff's counsel before stating: "I'm going to dissolve everything because this

is, obviously, a baseless [a]pplication. It's been satisfactorily explained by your

paperwork."

      The judge then invited plaintiff's counsel to submit an application for

counsel fees and counsel advised him a certification of services was submitted

with his opposition to the emergent application. Addressing defendant, the

judge then stated: "So, ma'am, why shouldn't I award counsel fees in this case?

It seems like this was a frivolous [a]pplication on your part." The following

colloquy ensued:

              [Defendant]: . . . . I have experience with . . . plaintiff
              in the past with verbal and physical abuse. . . . We were
              still in the parking lot of where I pick my children up.


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             Telling me the story of what happened. I asked if . . .
             they wanted to go to the police?

             The Court: Did you call . . . plaintiff and say, can you
             give me your version of what happened or did you just
             . . . ask the . . . kids if they wanted to go to the police?

             [Defendant]: I asked the kids.

             The Court: Why would—

             [Defendant]: Because—

             The Court: — you ask them that?            That's another
             indication that you're —

             [Defendant]: — because the —

             The Court: — attempting to drive a wedge between
             them and the other parent in this case.

      The transcript shows defendant did not participate further in the

proceedings except to acknowledge the judge's ruling that he was reverting to

the parties' prior parenting time arrangement. After engaging in a colloquy with

plaintiff's counsel the judge instructed him to submit a certification of services

containing "a schedule of the hours" spent on the matter. The judge concluded

"I do intend to make an award of counsel fees. That may put a stop to . . .

[a]pplications of this . . . nature in the future."

      Plaintiff's counsel submitted a revised certification of services totaling

$7555.55 in fees and costs. Defendant submitted a letter opposing the request

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for fees arguing the emergent application was not frivolous and explaining that

she lives in income-based housing and her inability to pay fees given the

expenses associated with the children. The judge signed the April 8, 2019 order,

which was prepared by plaintiff's counsel, requiring defendant to pay plaintiff

the full amount of fees and costs sought in less than sixty days from the date of

the order. Notably, the preamble to the order asserted the court "opined that . . .

[d]efendant's actions in the present matter were frivolous and without just

cause." The order contained no findings by the trial judge.

      On appeal, defendant argues the award of fees was an abuse of discretion.

She asserts the judge neither considered the Rule 5:3-5(c) factors nor opposition

from defendant, and declared the counsel fee award was to stop defendant from

making such applications in the future, yet defendant had not made frequent

applications to the court. Defendant argues the trial judge decided the custody

dispute without a hearing and did not critically review plaintiff's request for fees

before granting plaintiff the entire amount sought. She asserts plaintiff's counsel

spent inordinate amounts of time to perform simple tasks, such as reviewing her

two page certification and drafting plaintiff's response. Defendant asserts the

judge's finding that her application was frivolous did not meet the requirements




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of Rule 1:4-8(c) and did not follow the procedure for imposing sanctions under

the Rule.

      We defer to a trial judge's factfinding "when supported by adequate,

substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).

However, "[t]his court does not accord the same deference to a trial judge's legal

determinations." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017)

(citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "[T]he trial

judge's legal conclusions, and the application of those conclusions to the facts,

are subject to our plenary review. Our review of a trial court's legal conclusions

is always de novo." Reese, 430 N.J. Super. at 568 (citations omitted).

      Rule 5:3-5(c) lists nine factors the court must consider in making an award

of counsel fees in a family action. Essentially,

            in awarding counsel fees, the court must consider
            whether the party requesting the fees is in financial
            need; whether the party against whom the fees are
            sought has the ability to pay; the good or bad faith of
            either party in pursuing or defending the action; the
            nature and extent of the services rendered; and the
            reasonableness of the fees.

            [Mani v. Mani, 183 N.J. 70, 94-95 (2005) (emphasis
            omitted) (citations omitted).]

      Rule 1:4-8(c) states:

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              On its own initiative, the court may enter an order
              describing the specific conduct that appears to violate
              this rule and directing the attorney or pro se party to
              show cause why he or she has not violated the rule. The
              order to show cause shall issue before a voluntary
              dismissal or settlement of the claims made by or against
              the pro se party or the attorney who is the subject of the
              order to show cause.

A pleading may be deemed frivolous when "no rational argument can be

advanced in its support, or it is not supported by any credible evidence, or it is

completely untenable." United Hearts, LLC v. Zahabian, 407 N.J. Super. 379,

389 (App. Div. 2009) (citation and internal quotations omitted).

      We apply an abuse of discretion standard in our review of sanctions under

Rule 1:4-8.     Id. at 390.    An "abuse of discretion is demonstrated if the

discretionary act was not premised upon consideration of all relevant factors,

was based upon consideration of irrelevant or inappropriate factors, or amounts

to a clear error of judgment." Ibid. (citations omitted).

      We appreciate that Family Part judges often confront parents who do not

communicate and instead file applications such as the one filed here only to

learn after reviewing the opposition that the facts as presented by movant are

not what they seem. We also share the trial judge's view that embroiling children

in a litigation by ushering them to court may not be in their best interests.

However, the facts here were not so clear cut and warranted further investigation

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by the judge taking more testimony than what occurred in the eight minute

hearing, and by interviewing the children to understand what happened in their

uncle's house on the night of the incident. Moreover, the record presented to us

does not support the judge's findings that defendant was a vexatious litigant.

      These issues were briefly cited by the judge as the reasons why he decided

to award counsel fees. However, the facts were not developed through testimony

to enable the judge to make the necessary findings pursuant to Rule 5:3-5(c) to

support the fee award. Indeed, there were no Rule 5:3-5(c) findings at all.

      The record does not support the finding that defendant's emergent

application was frivolous. The dearth of developed objective facts, the judge's

lack of findings regarding the conduct he considered frivolous, and the summary

nature of the hearing conducted, deprived defendant of the notice she was

entitled to under Rule 1:4-8(c) to understand and adequately defend the court-

initiated sanctions.

      For these reasons, we reverse and remand the matter for reconsideration.

After developing a fuller record, either through testimony or written submissions

from both parties, the judge shall decide whether sanctions or counsel fees in

the normal course are warranted. We do not address defendant's argument

relating to the reasonableness of the nature and amount of time set forth in


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plaintiff's counsel's certification of services because this will be reviewed anew

when the trial judge applies the Rule 5:3-5(c) factors.

      Reversed and remanded. We do not retain jurisdiction.




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