MICHAEL A. PARISO, JR. VS. MICHELLE L. COOK (FM-21-0334-15, WARREN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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 limi ted. R. 1:36-3.
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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