Opinion
DOCKET NO. A-2256-14T2
06-03-2016
WILLIAM J. IOZIA, Plaintiff-Respondent, v. KELLY A. KRZECKOWSKI, Defendant-Appellant.
Anne Maria Davis argued the cause for appellant. Brian D. Winters argued the cause for respondent (Keith, Winters & Wenning, attorneys; Mr. Winters, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-000740-12. Anne Maria Davis argued the cause for appellant. Brian D. Winters argued the cause for respondent (Keith, Winters & Wenning, attorneys; Mr. Winters, on the brief). PER CURIAM
Kelly A. Krzeckowski appeals from a Family Division order that denied her request for attorney's fees. We affirm the trial court's decision as an appropriate exercise of discretion.
William J. Iozia (father) and Kelly A. Krzeckowski (mother) were before the Family Division in 2012 in connection with their non-dissolution case. The parties have two children together who at that time were eight and two years old. Father filed a motion requesting parenting time. Because he had not seen the children in nearly two years, the parties consented to an order in February 2012 that required their submission to a "psychological custody/parenting time evaluation," and their agreement upon a psychologist who would perform the evaluation in two weeks. The therapist would determine whether to require father to undergo a substance abuse evaluation. The agreed-upon psychologist also would determine "the appropriate reunification therapy course" for father and the children. The parties agreed to equally share these costs. The custody/psychological evaluator was not selected by the parties until August 2012, considerably after the contemplated two-week timeframe.
Father filed a motion in the interim requesting supervised visitation with the children. His request was denied until he undertook a substance abuse evaluation, which he completed in October 2012. There was no recommended need for treatment arising from this evaluation, but mother claimed this evaluation was a limited screening rather than the comprehensive substance abuse evaluation the court had ordered.
The parties were back in court in June 2013. For unexplained reasons, the therapeutic reunification had not occurred. They were ordered by the court to agree on a therapist in five days. The court's June 17, 2013 order allowed discretion to the therapist to determine the type of reunification therapy to be utilized. Father was to be "solely responsible for the payment of the therapeutic reunification." Custody issues were reserved until "completion of the therapeutic" reunification.
The parties agreed to reunification therapy with Dr. Plahovinsak. By September 2013, however, therapy had not progressed to the point of allowing father's parenting time. Accordingly, the trial court reserved that issue "to a later date when reunification therapy has progressed." Father's counsel was to contact the therapist in five days to seek a recommendation on whether father should have telephone contact with the children.
When mother subsequently raised an issue about using Dr. Plahovinsak as a therapist, the parties agreed to a new therapist, Dr. Edward Franzoni. Mother went to a session with Dr. Franzoni, but there were financial reimbursement issues that needed to be clarified. The parties addressed these issues by consent order in April 2014. As agreed, Dr. Franzoni would conduct the reunification therapy, but the type of therapy would be left to his discretion. The "reunification therapy" was to be paid for by father "in accordance with the Court Order dated June 17, 2013." Also, mother was to pay $25 per session for the next 17 sessions and supply proof of payment. If there were fewer than seventeen sessions, mother would reimburse father.
The parties' communication appeared then to have broken down. Mother blamed father for not proceeding with reunification therapy even though he had been ordered twice to pay for it. Father blamed mother for "stalling" reunification by "inundating Dr. Franzoni with paperwork" and because he claimed to be "in the dark" about whether she had scheduled any sessions with Dr. Franzoni or paid him.
Dr. Franzoni raised an issue to the parties about compensation for their telephone calls to him and other services he provided them, noting in a letter that he intended to charge $250 per hour for these services, but he would continue to charge $175 for each 45 minute face-to-face session. Counsel for the parties corresponded about which party would be responsible to pay for those charges. Dr. Franzoni sent a letter to the court on July 28, 2014 seeking clarification about who would reimburse him for "document reviews, contacting parties with relevant information, along with time spent reviewing the file and telephone communication with [the parents,]" which the doctor indicated had not been addressed in the court's order.
After the court responded on August 12, 2014 by advising that no application was pending before it, father filed a motion with the court. Father's motion requested enforcement of the April 2014 order for reunification therapy, asking that mother be required to immediately bring the children to Dr. Franzoni for reunification therapy. If that did not occur, then father was requesting an order for supervised visitation at the court house followed by unsupervised, non-overnight parenting time for a brief period and then alternating overnight supervised visitation on weekends. He requested telephone contact with the children and daily sanctions against mother if she did not comply.
Mother responded by filing opposition and a cross-motion seeking to compel father to undergo a substance abuse evaluation. Both parties requested an award of attorney's fees for their respective applications.
On December 11, 2014, the trial judge denied father's request for parenting time, but ordered that Dr. Franzoni would perform reunification therapy "under the terms outlined in the [June 24, 2014] letter" and that father was to pay a $1500 retainer within the week. He also was ordered to undergo a hair follicle test, consistent with the mother's request, but at her expense. The court denied both parties' requests for attorney's fees. Noting that the trial court remembered the file, the judge said,
There was confusion as to why it wasn't moving along and who was at fault, so I'm denying both counsel fees. I am not trying to go back and rehash every detail of who did what and who didn't do what.The December 11, 2014 order also provided: "if either party does not comply with the terms of this Order, that party shall be liable for counsel fees for an application necessary to enforce the Court's orders regarding reunification."
At this time, I deny counsel fees, but I will put in the order that if either party delays this in any way, delays or derails, that party will pay the counsel fees of the other party who has to make a motion.
Mother appeals from the denial of her application for $3090 in attorney's fees. Although recognizing that the determination to award fees rests with the sound discretion of the court, mother claims the trial court abused its discretion in denying the application without making a finding of good or bad faith by the parties or without making findings consistent with the applicable rules. In support of her request for fees, she recounts the facts that she says show the father's bad faith. Father opposes any award of fees, relying upon the court's expression that the payment arrangements for reunification therapy were "confusing" to the parties.
The assessment of attorney's fees is an issue left to the sound discretion of the trial court. Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd, 208 N.J. 409 (2011). It is reviewed under an abuse of discretion standard. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); Rendine v. Pantzer, 141 N.J. 292, 317 (1995); Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). An award of fees, generally, is not disturbed unless the award was "so wide of the mark as to constitute a mistaken exercise of discretion." Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).
In considering an application for counsel fees in a Family Division matter, the court should 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) 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 the award.
[R. 5:3-5(c).]
As long as there is ample support for the determination, the trial court's factual findings will not be disturbed whether or not every factor is discussed. See Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div. 2013) (upholding the trial court's award of attorney's fees because, although not every factor was specifically addressed, "the judge recited the support for her determination"). Deference is given to fact finding, especially because of "the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).
We are satisfied the trial court, knowledgeable of the history of this litigation, properly considered the factors in Rule 5:3-5(c) when it denied mother's request for attorney's fees. Although the June 17, 2013 order required father to pay for reunification therapy, it was not clear that this order included "document review, contacting parties with relevant information, along with time spent reviewing the file and telephone communication with [the parents.]" The parties did not agree on who would pay for these services. Dr. Franzoni wrote to the court for clarification. The issue was not clarified until father filed to enforce the reunification order or in the alternative for supervised visitation. The trial court identified "confusion" as the reason that reunification therapy had not progressed. In doing so she implicitly evaluated the good or bad faith of the parties and did not lay blame on either party. The court also made clear in that same order the consequences for a party that did not comply with the order. All of this was a valid exercise of discretion by the trial court in this contentious family matter.
That the mother prevailed on one issue involving her request for a substance abuse evaluation does not change the result here. Fees can be awarded or denied to any party in a matrimonial case whether or not they prevail. R. 5:3-5(c); Reese, supra, 430 N.J. Super. at 586.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION