MICHAEL BESEN VS. SANDRA WEISS (FM-07-1842-08, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0268-15T1
MICHAEL BESEN,
Plaintiff-Appellant/
Cross-Respondent,
v.
SANDRA WEISS,
Defendant-Respondent/
Cross-Appellant.
___________________________________
Argued June 1, 2017 – Decided August 29, 2017
Before Judges Fuentes, Carroll and Farrington.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County, Docket No. FM-07-1842-08.
Steven M. Resnick argued the cause for
appellant/cross-respondent (Ziegler & Zemsky,
LLC, attorneys; Mr. Resnick, on the briefs).
Paul A. Rowe and Stephanie G. Reckord argued
the cause for respondent/cross-appellant
(Greenbaum, Rowe, Smith & Davis LLP,
attorneys; Mr. Rowe, of counsel and on the
brief; Ms. Reckord and Leslie A. Barham, on
the briefs).
PER CURIAM
Plaintiff Michael Besen is the father of two children, who
are now both over the age of majority. Defendant Sandra Weiss is
the children's mother and plaintiff's former wife. Plaintiff
filed a complaint in the Law Division against defendant, predicated
on the tort of intentional infliction of emotional distress, aiding
the commission of a tort, and civil conspiracy. Plaintiff alleged
defendant intentionally or recklessly engaged in extreme and
outrageous conduct designed to undermine his relationship with his
children. He alleges that as a proximate cause of defendant's
outrageous and intentional acts, his relationship with his
children as a parent has been irreparably destroyed. Plaintiff
seeks compensatory and punitive damages against defendant and
other unidentified individuals under the fictitious party rule.1
In response to plaintiff's appeal, we are asked to determine
whether the Law Division correctly applied this court's decision
in Segal v. Lynch, 413 N.J. Super. 171 (App. Div.), certif. denied,
203 N.J. 96 (2010), to transfer this cause of action to the
Chancery Division, Family Part. As a corollary to this threshold
question, we are asked to determine whether the Family Part erred
1
"'The purpose of [the fictitious party rule] is to render timely
the complaint filed by a diligent plaintiff, who is aware of a
cause of action against an identified defendant but does not know
the defendant's name.'" Bustamante v. Borough of Paramus, 413
N.J. Super. 276, 299 (App. Div. 2010) (quoting Greczyn v. Colgate-
Palmolive, 183 N.J. 5, 11 (2005)); see also R. 4:26-4.
2 A-0268-15T1
when it granted defendant's motion to dismiss plaintiff's
complaint as a matter of law under Rule 4:6-2(e). Finally, we
must determine whether the Family Part erred in awarding defendant
counsel fees under Rule 5:3-5(c). In her cross-appeal, defendant
argues the trial court erred when it denied her applications for
sanctions pursuant to N.J.S.A. 2A:15-59 and Rule 1:4-8.
Independent of this issue, defendant also argues the amount of
counsel fees the Family Part awarded her under Rule 5:3-5(c) was
arbitrarily determined and did not include the time spent by
defense counsel to transfer the case from the Law Division to the
Family Part.
After reviewing the record developed before the trial court,
we affirm the Law Division's February 6, 2015 order transferring
plaintiff's complaint to the Family Part substantially for the
reasons expressed by Judge Stephanie Ann Mitterhoff. We also
affirm the order entered by Judge Michael R. Casale on April 10,
2015, which dismissed plaintiff's complaint with prejudice
pursuant to Rule 4:6-2(e). We do so substantially for the reasons
expressed by Judge Casale in his oral opinion delivered from the
bench on April 2, 2015. With respect to defendant's cross-appeal,
we affirm the July 29, 2015 final order entered by Judge Casale,
which awarded defendant $25,000 in counsel fees under Rule 5:3-
5(c) and denied defendant's application for the court to impose
3 A-0268-15T1
sanctions against plaintiff under N.J.S.A. 2A:15-59 and Rule 1:4-
8.
I
The parties were married from 1996 to 2008. They had two
children, a boy born in April 1997 who is now twenty years old;
and a girl born in June 1999, who is now eighteen years old.
Plaintiff initiated divorce proceedings against defendant in
February 2008. In a certification submitted to the Family Part,
plaintiff attributed the "breakdown" of the marriage to "years of
conflict." The matrimonial litigation that ultimately dissolved
the marriage was highly contentious. Plaintiff claims defendant
intentionally disparaged him and the woman with whom he was
romantically involved. Of particular concern to plaintiff were
defendant's allegedly incessant attempts to undermine his
relationship with the children.
The Family Part entered the final dual Judgment of Divorce
(JOD) on June 17, 2011. The JOD incorporated a Settlement
Agreement (Agreement) that memorialized the "essential terms
orally entered on the record on December 15, 2010[.]" In this
Agreement, the parties "resolved all matters in connection with
their marital relationship[,]" and authorized the Family Part "to
4 A-0268-15T1
determine several open issues[.]" The parties also waived their
rights to appeal these issues, including the following:
custody and timesharing, support of the
Parties and Children, payment of obligations,
equitable distribution, attorneys' fees, and,
in general, the settling of any and all claims
and possible claims, by one against the other,
or against their respective estates, as well
as any and all rights and obligations growing
out of their marital relationship.
Consistent with the Agreement, the JOD contains the trial
judge's determination of the matters the parties were not able to
settle. These matters involved: life insurance to secure
plaintiff's obligation to pay alimony and child support; the
payment of the children's unreimbursed medical expenses; the
payment of the children's post-secondary education expenses;
equitable distribution; and plaintiff's time with the family dog.
The rest of the JOD addresses how the judge shall determine the
amount and allocation of professional fees and other costs incurred
by the parties in the matrimonial litigation. We have taken the
effort to describe the items on which the parties were unable to
reach an agreement, and which thus required judicial
determination, to illustrate the degree of acrimony and
intransigence that has permeated the parties' interactions with
each other and, more importantly, with their children.
5 A-0268-15T1
The Settlement Agreement contains seventeen labeled
categories, which are further broken down into subsections, the
number of which varies based on the subject matter at issue. For
example, the category labeled "Alimony" contains seven subsections
dealing with amount, method of payment, tax implications,
irrevocable termination events, marital standard of living, and
the waiver of pendente lite claims.
With respect to the children, we need not have formal training
in developmental psychology to appreciate the emotional
difficulties and social awkwardness associated with adolescence.
It is also well-documented that children experience emotional
trauma as a direct result of parental disputes and acrimonious
divorce proceedings. By all accounts, this divorce was especially
rancorous. The parties had both the financial means and emotional
disposition to engage in extensive motion practice, both pre- and
post-judgment. On its face, the parenting time arrangement
ultimately agreed upon has all the trappings of a highly contested,
aggressively negotiated document.
There is no such thing as a model parenting time arrangement.
A post-divorce plan to accommodate the needs of the children to
continue to have a loving and meaningful relationship with both
parents is perforce a fact-sensitive undertaking. It should be
driven by the common sense, universally accepted notion that both
6 A-0268-15T1
parents must be willing to subordinate their personal interests
and needs to the best interests of their children. Although a
cliché, it is important to remember that we divorce spouses, not
children.
The seeds of estrangement from their parents that the children
in this case appear to feel today can be traced, in large part,
to the emotionally sterile parenting time arrangement adopted by
the parties.2 The parties' level of dissention is demonstrably
reflected in the Agreement. This carefully drafted document
comprehensively addresses all of the remaining issues concerning
the dissolution of the marriage. We take the time to describe the
sections of the Agreement that address the parties' interactions
with their children to illustrate the degree of control the parties
attempted to exert, not just over themselves, but over the lives
of their teenaged children.
On August 12, 2010, the Family Part entered a separate order
denoted "Judgment Fixing Custody and Parenting Time." The children
were thirteen and eleven years old at the time. The preamble of
the Judgment states that the parties, represented by counsel, had
"freely and voluntarily without duress or coercion entered into
this custody and parenting time agreement[.]" The parties agreed
2
It is important to emphasize that the parties were represented
by counsel at all times.
7 A-0268-15T1
to have joint legal custody and designated defendant as "the parent
of primary residence for school district designation." The
document ambitiously attempts to address and provide a protocol
for seemingly every conceivable event in a child's life and the
corresponding point of interaction the child would have with a
parent.
The Judgment is divided into Seven Articles, containing as
many subsections as warranted by the subject matter. Article II,
"Custody and Parenting Time," contains six subsections.
Subsection 2.2 is titled "Regular Parenting Time for the Father
During School Year." It provides a detailed schedule for an
ostensibly typical school-year month, broken down into four weeks,
with each week containing its own protocol. For example:
Week Three: The Father shall have parenting
time Friday evening[,] picking the Children
up from the mother's home of the Children's
activities at 6:00 p.m., until Monday morning
when the Father shall deliver the Children to
school (or the Mother's residence at 9:00 a.m.
if school is not in session). If the Children
have a scheduled school holiday on Monday
following the Father's weekend with the
Children, and it is the Father's holiday with
the Children in accordance with holiday
schedule set forth in § 3.1 infra, then the
Father shall bring the Children to school
Tuesday morning or the Mother's residence by
8:00 a.m. if school is not in session.
There are similar micromanagement provisions for Weeks One,
Two and Four. Subsection 2.3 is titled "Regular Time For the
8 A-0268-15T1
Father During Summer." It provides for an equal timeshare
arrangement for the parents, followed by a description of where
and with whom the children will be "between the last day of school
in June of each year and the commencement of school[.]" Article
III3 describes "Holiday Parenting Time." It provides a shared
holiday schedule varying each year based on whether it is an odd
or even number year. For example, if the father had Martin Luther
King Day in 2010, it would alternate to the mother in 2011. The
only holidays that were not subject to this alternating schedule
were Mother's Day and Father's Day. This arrangement was
meticulously described in a chart divided into four vertical
columns and four horizontal boxes. The first box identified the
holiday; the second box identified the year; and the third and
fourth boxes identified the parent. The chart contained a total
of seventeen columns.
Article VI covered "Dispute Resolution." It appointed a
parenting coordinator to resolve "significant disputes" arising
under the parenting plan that the parties are unable to resolve
"after best efforts have been made." The parties agreed to share
the cost of the Parenting Coordinator on a 60/40 split in
defendant's favor. Subsection 6.3(d) authorized the Family Part
3
The Judgment actually uses the number 3. We have opted to use
a Roman numeral in the interest of consistency.
9 A-0268-15T1
to sanction the party that the court finds "has used, or frustrated
the dispute resolution process without good reason[.]" As a
sanction, the court could "re-allocate payment for the Parent
Coordinator to resolve the issue and/or award attorney's fees as
appropriate."
Article VII, titled "Other Provisions[,]" covered twelve
specific areas of parent/child interactions. The following
subsections are particularly relevant here:
Neither party shall do anything to alienate
the [c]hildren's affections for or color their
attitude toward the other. The parties shall
cooperate to help the children adjust
themselves to the circumstances as they now
and may in the future exist. The parties agree
to conduct themselves in a manner that shall
be in the [c]hildren's best interests.
Neither parent shall interfere with the other
parent's parenting time. Both parties
recognize it is in the [c]hildren's best
interests that there not be excessive contact
with the other parent during the other
parent's parenting time. Both parties are
entitled to attend the [c]hildren's scheduled
activities that occur at public places.
Each party may call the [c]hildren one time
per day between 6:00 p.m. and 9:00 p.m. Both
parties shall refrain from excessive text
messaging and/or emails with the [c]hildren
while the [c]hildren are in the other party's
care. The [c]hildren's privacy in regard to
their conversations with the other party,
whether written or oral, shall not be invaded
by either party. The parties agree to keep
the other informed of cell phone and telephone
numbers, e-mail addresses and residential
addresses.
10 A-0268-15T1
Neither party shall discuss in any form or
manner with the [c]hildren or otherwise expose
them, directly or indirectly, to any issue
relating to any disputes between them.
Further, neither party shall malign, disparage
or impugn the other to or in the presence of
the [c]hildren, either directly or indirectly.
Each party shall foster and encourage a
healthy relationship between the [c]hildren
and the other party.
[(Emphasis added).]
Finally, the Agreement the parties executed on June 17, 2011
contained the following language concerning the waiver of present
and future claims:
Except as otherwise provided herein, the
[p]arties shall and do hereby mutually release
and forever discharge each other from any and
all suits, actions, debts, claims, demands and
other obligations whatsoever in law and equity
which either of them ever had, now has or may
hereafter have against the other upon or by
reason of any matter, cause or thing to the
date of execution of this Agreement.
II
On November 21, 2014, plaintiff commenced a civil action
against defendant and "other presently unknown third-parties"4 in
4
In the course of oral argument on defendant's motion to dismiss
plaintiff's complaint, Judge Casale repeatedly stated that based
on his experience in deciding a number of post-judgment motions,
he believed the "unknown third-parties" referred to the parties'
twenty-year-old son. If so, his son would be both a witness on
the question of damages against defendant and a third-party
11 A-0268-15T1
the Law Division, alleging intentional infliction of emotional
distress, aiding the commission of a tort, and conspiracy. The
section of the complaint denoted "Facts Common to All Counts" does
not identify with particularity when the alleged conduct upon
which the tort of intentional infliction of emotional distress is
predicated began. Indeed, paragraphs 8, 9, 10, 11, 12, and 13
describe conduct or events that predate the JOD. Paragraphs 11,
12, and 13 illustrate this point:
11. In or about late 2006[,] defendant came
into [plaintiff's] office, disguised in a hat
and sunglasses, asked for "Ms. Ortiz[,]"5 and
then proceeded to intimidate and humiliate Ms.
Ortiz in front of other office staff. It took
several people to remove defendant from the
building. Defendant stole Ms. Ortiz's
purse[,] which contained significant private
and personal information. As a result,
defendant found out where Ms. Ortiz lived and
the name of her nanny. Defendant then called
Ms. Ortiz and left outrageously threatening
messages and included the children in her
hate-filled tactics.
12. In or about May 2010, defendant coached
and manipulated William at his Bar Mitzvah to
ignore [plaintiff] and his family and
[publicly] humiliate [plaintiff] at the
service.
13. In or about August/September 2011,
defendant coached and manipulated William to
defendant to recover monetary damages based on the alienation of
affection he caused his sister to feel against their father.
5
"Ms. Ortiz" refers to Angela Ortiz, plaintiff's romantic interest
following the breakdown of his marriage with defendant.
12 A-0268-15T1
steal privileged email communications between
[plaintiff] and his attorney from
[plaintiff's] IPAD that defendant used in the
parties' post-judgment litigation.
Paragraphs 14 to 20 all begin with the phrase: "At various
places and times, defendant . . . ." These amorphous allegations
do not, on their face, describe a cognizable prima facie case
based on the tort of intentional infliction of emotional distress.
The remaining paragraphs are equally ineffective. They merely
describe defendant's conduct using inflammatory rhetoric but
without a clearly identifiable temporal nexus. Paragraphs 21 and
22 illustrate this point:
21. Defendant has also intentionally
undermined any Court ordered therapeutic
attempts to repair the damage defendant has
done to the children with purpose to keep the
relationship damaged and fractured.
22. As a result of defendant's conduct, the
Family Court has financially sanctioned
defendant and even temporarily transferred
custody from defendant to Mr. Besen.
Unfortunately for the children and Mr. Besen,
defendant continued her intentional actions.
By letter dated December 16, 2014, defense counsel served
plaintiff's counsel with "formal notice and demand that the
Complaint filed on behalf of your client . . . constitutes
frivolous litigation under [Rule] 1:4-8 and N.J.S.A. 2A:15-59.1."
Defense counsel apprised plaintiff's counsel that viewing the
factual allegations in the complaint in the light most favorable
13 A-0268-15T1
to plaintiff, the complaint did not make out a prima facie case
of intentional infliction of emotional distress, aiding in the
commission of a tort, or conspiracy. After citing and discussing
this court's decision in Segal, supra, 413 N.J. Super. at 171,
defense counsel also placed plaintiff's counsel on notice that
this cause of action should have been brought in the Chancery
Division, Family Part. Finally, defense counsel noted that
plaintiff's claims were barred under the relevant two-year statute
of limitations, N.J.S.A. 2A:14-2, as well as the parties'
Settlement Agreement.
On January 7, 2015, defendant filed a motion in the Law
Division to transfer this case to the Family Part. By order dated
February 6, 2015, Judge Mitterhoff granted defendant's motion.
She explained the legal basis for her decision in a letter-opinion
attached to the order. After providing a synopsis of the parties'
matrimonial history, Judge Mitterhoff held:
Rule 5:1-2(a) provides that "[a]ll civil
actions in which the principal claim is unique
to and arises out of a family or family-type
relationship shall be brought in the Family
Part." Here, it is uncontested that as former
spouses, the parties had a "family or family-
type relationship." However, "[t]he mere fact
that plaintiff and defendant were formerly
wife and husband does not require that
plaintiff's tort be tried in the Family Part."
J.Z.M. v. S.M.M., 226 N.J. Super. 642, 648–49
(Law Div. 1988). Where the tort is
"sufficiently distinct and independent from
14 A-0268-15T1
the cause of action for divorce and equitable
distribution to permit separate adjudication
without prejudicing the integrity of those
adjudications," the complaint may be tried in
the Law Division. Brown v. Brown, 208 N.J.
Super. 372, 383 (App. Div. 1976). In
contrast, when claims for intentional
infliction of emotional distress are based on
interference with a former spouse's
relationship with the children, public policy
requires that the suit must "be brought before
and addressed by the Family Part as part of
an action for custody or parenting time, where
the governing principle for adjudication will
be the best interests of these two children."
Segal, supra, 413 N.J. Super. at 192.
Eleven days before Judge Mitterhoff entered the order
transferring plaintiff's complaint to the Family Part, defendant
filed a motion to dismiss plaintiff's complaint with prejudice
under Rule 4:6-2(e). Judge Casale heard oral argument on the
motion on April 2, 2015. In the course of oral argument, Judge
Casale pointed out that the principal factual allegations in
plaintiff's complaint overlapped with issues raised by the parties
and decided by Judge Thomas P. Zampino6 in the course of the
matrimonial litigation. These decisions were included in the JOD
and incorporated in the Settlement Agreement.
Judge Casale found that any claims in plaintiff's complaint
that relate to prejudgment events "do not survive" after the JOD
6
Judge Zampino has since retired.
15 A-0268-15T1
and the waiver provisions in the Agreement. He also found, as a
matter of law, that plaintiff's allegations post-judgment "do not
reach the bar that they need to reach and that is, giving all
deference and reasonable inferences to the allegations, as being
true." Judge Casale found that none of the claims in the complaint
"are so outrageous, not condoning the alleged conduct of the
defendant, that they come anywhere near what the Appellate Division
was talking about in Segal."
Although Judge Casale denied defendant's application for
frivolous litigation sanctions under Rule 1:4-8, he awarded
defendant partial counsel fees under Rule 5:3-5(c). He explained
his reasoning in a letter-opinion dated July 29, 2015. He also
provided the following explanation in support of his decision to
deny defendant's application for frivolous litigation sanctions:
This [c]ourt finds that plaintiff's claims of
parental alienation cannot be described as
frivolous, as this [c]ourt has previously
found that defendant has a history of acting
to deprive plaintiff of his relationship with
his children, and never found that plaintiff
was pursuing his claims to harass defendant
or solely out of a malicious motive.
Defendant makes a legitimate argument that the
parental alienation of the ilk raised in
plaintiff's complaint cannot be the basis for
an intentional infliction of emotional
distress claim. However, that was a close
call for this [c]ourt on a motion to dismiss.
This [c]ourt came very close to not granting
the motion to dismiss, and allowing the
16 A-0268-15T1
plaintiff to pursue discovery, at which time
defendant could have renewed her motion at the
conclusion of discovery. The [c]ourt found
that plaintiff's claims did not arise to the
level necessary for emotional damages under
the Segal standard, in that defendant's
parental alienation in this case did not
amount to outrageous and extreme circumstances
for a claim of intentional infliction of
emotional distress. However, that does not
mean that plaintiff's claims were frivolous,
made in bad faith, with ill motive or intent.
Many times [c]ourts expand doctrines in cases
similar to this one. If [c]ourts were to grant
the successful party's applications under the
frivolous claim statute in circumstances such
as this one, it would represent a chill on
litigation where a litigant is frustrated by
the actions of another party. For all those
reasons, defendant's application to award
sanctions, attorney's fees and legal expenses
pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1
is denied by this [c]ourt.
Against this record, we will now address the parties'
arguments on appeal.
III
As a threshold issue, we affirm Judge Mitterhoff's order
transferring the complaint to the Chancery Division, Family Part.
Rule 4:3-1(a)(3) and Rule 5:1-2(a) provide that "[a]ll civil
actions in which the principal claim is unique to and arises out
of a family or family-type relationship shall be brought in the
Chancery Division, Family Part." Here, it is undisputed that the
allegations in plaintiff's complaint arise exclusively from
17 A-0268-15T1
defendant's alleged interference with the relationship between
plaintiff and his children.
Furthermore, as we made clear in Segal:
As a matter of public policy, the grievances
raised by plaintiff in this suit must be
brought before and addressed by the Family
Part as part of an action for custody or
parenting time, where the governing principle
for adjudication will be the best interests
of these two children. In these matters, the
Family Part has both the expertise and the
power to correct abuses by one parent against
the other, while shielding the children from
the type of emotional injury that is
inextricably linked to a civil action for
damages.
[Segal, supra, 413 N.J. Super. at 192.]
Because this procedural requirement is clear on its face, it does
not require any further comment or elaboration.
We will next consider Judge Casale's decision to dismiss
plaintiff's complaint with prejudice. Our review of a trial
court's ruling on a motion to dismiss for failure to state a claim
under Rule 4:6-2(e) is de novo. Flinn v. Amboy Nat'l Bank, 436
N.J. Super. 274, 287 n.5 (App. Div. 2014). We look to the complaint
"to determine whether the allegations suggest a cause of action."
In re Reglan Litigation, 226 N.J. 315, 324 (2016). Assuming the
facts stated within the four corners of plaintiff's complaint are
true, and granting plaintiff the benefit of all rational inferences
that can be drawn from such facts, see Green v. Morgan Properties,
18 A-0268-15T1
215 N.J. 431, 452 (2013) (citation omitted), we must determine
whether plaintiff's complaint "suggest[s]" a cause of action.
Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739,
746 (1989) (citations omitted). Our search must be conducted "in
depth and with liberality to ascertain whether the fundament of a
cause of action may be gleaned even from an obscure statement of
claim, opportunity being given to amend if necessary." Ibid.
(citation omitted).
Applying this standard to the allegations in plaintiff's
complaint, we are satisfied plaintiff failed to state a prima
facie case of intentional infliction of emotional distress. We
again quote from our decision in Segal:
[T]o make out a prima facie case of
intentional infliction of emotional distress,
plaintiff must show that: (1) defendant acted
intentionally; (2) defendant's conduct was "so
outrageous in character, and so extreme in
degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized
community;" (3) defendant's actions
proximately caused him emotional distress; and
(4) the emotional distress was "so severe that
no reasonable [person] could be expected to
endure it."
[Segal, supra, 413 N.J. Super. at 191 (quoting
Buckley v. Trenton Sav. Fund Soc., 111 N.J.
355, 366 (1988)).]
As our examination of plaintiff's allegations reveals, the
vague inflammatory language in the complaint does not describe the
19 A-0268-15T1
type of conduct that is "so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community[.]" See id. at 192. We also agree with Judge Casale
that a significant number of the events described in the complaint
are barred by both the two-year statute of limitations, N.J.S.A.
2A:14-2, as well as the waiver provision the parties freely and
voluntarily agreed to in the Settlement Agreement.
Because plaintiff failed to set forth a legally cognizable
claim of intentional infliction of emotional distress, his cause
of action for conspiracy and aiding the commission of a tort must
also fail as a matter of law. See Banco Popular N. Am. v. Gandi,
184 N.J. 161, 177–78 (2005) (holding the "gist" of a claim for
civil conspiracy is not the unlawful agreement, but the underlying
predicate tort); State, Dep't of Treasury, Div. of Inv. ex rel.
McCormac v. Qwest Commc'ns Int'l., Inc., 387 N.J. Super. 469, 484
(App. Div. 2006) (explaining that a claim for aiding the commission
of a tort requires proof of the underlying tort).
We now address the parties' arguments, on both direct and
cross-appeal, concerning Judge Casale's decision to award in part
and deny in part defendant's application for counsel fees. In
determining whether a party is entitled to counsel fees under Rule
5:3-5(c), the Family Part must consider the following nine factors:
20 A-0268-15T1
(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) 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)(1)–(9).]
Our Supreme Court distilled these factors to their essence
in Mani v. Mani, 183 N.J. 70 (2005):
[T]he 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.
[Id. at 94–95 (citing Williams v. Williams,
59 N.J. 229, 233 (1971)).]
While not every factor must be considered, Reese v. Weiss, 430
N.J. Super. 552, 586 (App. Div. 2013), a failure to provide an
analysis of these factors on the record is a ground upon which
this court may disturb the Family Part's award of counsel fees.
Accardi v. Accardi, 369 N.J. Super. 75, 90 (App. Div. 2004).
21 A-0268-15T1
Here, Judge Casale properly analyzed the nine factors listed
in Rule 5:3-5(c) when determining whether defendant was entitled
to an award of counsel fees incurred in prosecuting her motion to
dismiss plaintiff's complaint. He found that both parties were
in "excellent financial shape," but the parties' post-judgment
history and most recent case information statements indicated
plaintiff "continue[d] to amass a great amount of wealth from his
successful business[]" and was therefore in "better" financial
circumstances than defendant. Judge Casale also found it would
be "unreasonable" and "unfair" for defendant to litigate
plaintiff's claims in a separate Law Division complaint, when "she
could [have] face[d] them in the matrimonial litigation, and
settled them, or had the plaintiff dismiss same as a result of the
[Settlement Agreement]." Finally, Judge Casale emphasized that
defendant was successful in dismissing plaintiff's complaint;
thus, factor 7 weighed in her favor. He found the remaining
factors (i.e., factors 2, 4, 5, 6, and 8) were either neutral or
inapplicable. These findings were well within his discretion.
See Reese, supra, 430 N.J. Super. at 586.
We finally address defendant's argument with respect to her
application for counsel fees under the frivolous litigation law.
We review a trial court's denial of frivolous litigation sanctions
under an abuse of discretion standard. Masone v. Levine, 382 N.J.
22 A-0268-15T1
Super. 181, 193 (App. Div. 2005). Thus, we should not disturb the
Family Part's determination unless it was "made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis." Ibid. (quoting Flagg v. Essex
Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
N.J.S.A. 2A:15-59.1a(1) provides that a prevailing defendant
in a civil action may recover reasonable attorney fees and
litigation costs from the plaintiff if the trial judge finds the
plaintiff's complaint was frivolous. The statute provides that a
complaint is "frivolous" if it was "commenced, used or continued
in bad faith, solely for the purpose of harassment, delay or
malicious injury;" or if the plaintiff "knew, or should have known,
that the complaint . . . was without any reasonable basis in law
or equity and could not be supported by a good faith argument for
an extension, modification or reversal of existing law." N.J.S.A.
2A:15-59.1b.
The prevailing party enforces N.J.S.A. 2A:15-59.1 by filing
a motion for sanctions under Rule 1:4-8(b). The rule states that
"[n]o such motion shall be filed" unless the prevailing party
first serves his opponent's counsel with formal written notice
indicating that the claims comprising his complaint are frivolous.
R. 1:4-8(b). In accordance with Rule 1:4-8(b), this written notice
must:
23 A-0268-15T1
(i) state that the paper is believed to
violate the provisions of this rule, (ii) set
forth the basis for that belief with
specificity, (iii) include a demand that the
paper be withdrawn, and (iv) give notice
. . . that an application for sanctions will
be made within a reasonable time thereafter
if the offending paper is not withdrawn within
28 days of service of the written demand.
Both N.J.S.A. 2A:15-59.1 and Rule 1:4-8 are strictly
construed so as not to dissuade litigants from accessing the
courts. First Atl. Fed. Credit Union v. Perez, 391 N.J. Super.
419, 432 (App. Div. 2007); DeBrango v. Summit Bancorp., 328 N.J.
Super. 219, 226 (App. Div. 2000). The dual purpose of imposing
frivolous litigation sanctions is to deter frivolous claims and
to compensate parties who are forced to litigate such claims.
Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J.
Super. 510, 545 (App. Div. 2009); Ferolito v. Park Hill Ass'n, 408
N.J. Super. 401, 407 (App. Div. 2009).
A claim is considered frivolous under N.J.S.A. 2A:15-59.1b(2)
only if no rational argument can be advanced in its support, it
is not supported by credible evidence, a reasonable person could
not have expected its success, or it is completely untenable.
Belfer v. Merling, 322 N.J. Super. 124, 144 (App. Div.), certif.
denied, 162 N.J. 196 (1999). Thus, an "honest attempt to press
a[n] . . . ill-founded[] claim[]" is not frivolous, see McKeown-
Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 563 (1993),
24 A-0268-15T1
and sanctions are not warranted if the plaintiff had a reasonable,
good faith belief in the merits of his action. Wyche v.
Unsatisfied Claim & Judgment Fund of N.J., 383 N.J. Super. 554,
561 (App. Div. 2006). Moreover, the courts should not discourage
honest and creative advocacy. Iannone v. McHale, 245 N.J. Super.
17, 28 (App. Div. 1990).
Here, defense counsel provided plaintiff's attorney with the
requisite written notice pursuant to Rule 1:4-8(b). In denying
defendant's application, Judge Casale found it was "unreasonable"
and "unfair" for plaintiff to bring his complaint for intentional
infliction of emotional distress before the Law Division. However,
he also found the allegations themselves were not brought "in bad
faith, for the purpose of harassment, delay, or malicious injury."
He found plaintiff's complaint "arose out of the fact that he
believed . . . [the Family Part's] prior orders were ineffective,
and . . . the sanctions previously imposed against . . . defendant
did not prevent her from continuing to alienate the children
against him, and continually thwarting [the children's]
therapy[.]"
Judge Casale's finding in this respect is akin to a
credibility finding, and is thus entitled to substantial deference
on appeal. See Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting
In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
25 A-0268-15T1
Indeed, Judge Casale's ruling is consistent with our holding in
Segal, supra, 413 N.J. Super. at 171. Plaintiff's cause of action
was not wholly without merit. See id. at 194 (holding the
plaintiff's arguments in support of his claims for intentional
infliction of emotional distress were "objectively reasonable" and
"not facially meritless[]"). As Judge Casale noted on the record,
"[m]any times, [c]ourts expand doctrines in cases similar to this
one[,]" and the imposition of frivolous litigation sanctions under
these circumstances would cause a "chill on litigation[.]"
Affirmed.
26 A-0268-15T1