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Not Reported in A.2d, 2009 WL 901884 (N.J.Super.A.D.

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UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of New Jersey,


Appellate Division.

Annicq GROETSEMA, Plaintiff-Respondent,


v.
Lisa GROETSEMA, Defendant-Appellant.
Argued March 18, 2009.
Decided April 6, 2009.

West KeySummary

76D Child Custody


76DXIV Costs
76Dk943 k. Attorney Fees. Most Cited Cases

The trial court did not abuse its discretion when it denied a mother's application for
attorney's fees incurred on her order to show cause, requesting that the father
authorize her to speak with his insurance carrier directly relating to their child's
medical claims and on the father's motion to resume parenting time. Both parties
had adequate funds to pay their own legal fees. Although the mother had succeeded
on her request for authorization to speak directly with the father's insurance carrier,
and the father had withdrawn his motion, the mother's allegations of sexual abuse
were not supported by any evidence, and she had not provided any documentation
as to the proceeds from the sale of the marital home. The father's withdrawal of his
motion to resume parenting time could not be considered bad faith, since it was
withdrawn due to his inability to afford to pay the costs of litigation. Rule 5:3-5(c).

On appeal from Superior Court of New Jersey, Chancery Division, Family Part,
Bergen County, Docket No. FM-02-996-04.
Edward J. Bowen argued the cause for appellant.

Debra F. Schneider argued the cause for respondent.

Before Judges STERN and ASHRAFI.


PER CURIAM.

*1 In this post-judgment matrimonial matter, defendant appeals the denial of her


application for attorney's fees by order and written decision dated June 16, 2008.
The trial judge having considered and made findings of all factors required
by Rule 5:3-5(c), we affirm.

After four days of trial in their divorce case, plaintiff husband, Annicq Groetsema,
and defendant wife, Lisa Groetsema, reached a settlement leading to a dual
judgment of divorce on January 5, 2005. The judgment included joint legal custody
of the two young children, with Lisa retaining primary residential custody and Annicq
permitted unsupervised parenting time subject to psychiatric evaluation regarding
whether the children had been sexually abused. The judgment also required that
Annicq maintain medical insurance for the children through his employment. About a
year after the divorce, Lisa obtained a final domestic
violence restraining order against Annicq.

A psychiatric evaluation was completed and the doctor reported that he found no
evidence supporting Lisa's allegations of sexual abuse. In October 2006, Annicq
applied to the court to resume his parenting time. Lisa filed a cross-motion to
suspend contact between Annicq and the children. The court initially granted
Annicq's motion for parenting time, but then DYFS intervened, recommending that
the family undergo therapy before Annicq's parenting time resumed. The court
modified its order and required that Annicq participate in therapy. Annicq attended
several sessions of therapy and then stopped, later claiming that his insurance would
not cover the costs and he could not afford it.

While these matters were pending, the parties' seven-year-old son was hospitalized
in the spring of 2006 because of seizures, and he was diagnosed with a serious
medical condition, tuberous sclerosis complex. Lisa did not inform Annicq about their
son's hospitalization or medical treatment. He learned about it through bills he
received from the hospital and was upset that he had not been informed or consulted
about the hospitalization.

Annicq alleges that his son was hospitalized again in December 2006 because of
serious psychological risks. He states that he only learned about this hospitalization
when the hospital called him days later for discharge authorization. He also alleges
that Lisa impersonated him in a telephone call to the medical insurance carrier
(Annicq's name not being readily identifiable as male or female) and, without his
knowledge, changed the mailing address and the children's pediatrician on the
insurance records. Lisa denies making such a call.

In about May 2007, doctors requested diagnostic testing to evaluate the boy's
condition and to determine appropriate medications. Lisa's attorney wrote to
Annicq's attorney requesting authorization for Lisa to deal directly with Annicq's
medical insurance carrier to discuss coverage for medical testing and treatment,
including an EKG, ophthalmologic examination, and neuropsychological testing. The
attorney also said that Lisa had been informed that Annicq had expressly instructed
the carrier not to take direction from Lisa but to communicate with him. Annicq's
attorney responded that authorization would not be given because Lisa had kept
Annicq uninformed about the son's condition and treatment. Also, Annicq demanded
supervised parenting time so that he could see and evaluate for himself his son's
condition.

*2 Lisa filed an order to show cause on May 25, 2007, requesting authorization
to communicate directly with the insurance carrier and other relief, including
attorney's fees. Annicq filed a cross-motion for parenting time. The court heard
argument on both applications on June 22, 2007. The court entered a qualified
medical child support order on July 13, 2007, designating Lisa as the representative
of the two children under the medical insurance plan, and ordering the plan to send
copies of all correspondence and claims to both parents.

The court also scheduled an evidentiary hearing for July 31, 2007, to address
Annicq's application for parenting time and directed that his therapist testify at the
hearing. Counsel for Lisa took the deposition of the therapist a few days before the
scheduled date of the hearing. Annicq's attorney did not attend, stating that Annicq
could not afford the costs.

One day before the scheduled hearing, Annicq withdrew his application for parenting
time, again stating that he could not afford the litigation costs. Lisa's attorney
demanded that the attorneys nevertheless attend court on the date of the hearing
and there pressed his application for attorney's fees and expenses of almost $10,000
on the cross-applications. The court's decision denying the application for attorney's
fees and expenses was issued in June 2008. Lisa filed a timely notice of appeal.

Rule 5:3-5(c) expressly grants discretion to the trial court to decide issues of
attorney's fees in the Family Part, and it lists factors the court must consider in
reaching its decision. On appeal, we review the trial court's decision for abuse of
discretion. Eaton v. Grau, 368 N.J.Super. 215, 225, 845 A.2d 707 (App.Div.2004). In
this case, the trial court issued a written opinion reciting each factor listed in
the Rule and applying the facts of this case to those factors.

As to the financial circumstances of the parties, the court found that Annicq had
gross income of $1,354 per week and paid child support to Lisa of $471 per week.
The court also noted that Annicq did not have the financial resources to pursue his
application for parenting time. Lisa earned about $8,000 per year, supplemented by
the child support of $471 per week. Relating these findings to the second factor,
ability of the parties to pay their own fees or contribute to the other party's litigation
costs, the court found that each party had the ability to pay his or her own fees.

As to reasonableness and good faith of the positions advanced, the court recognized
that whether a party took a litigation position in good or bad faith is a relevant factor
in determining whether to grant an award of attorney's fees. See N.J.S.A. 2A:34-
23; Diehl v. Diehl, 389 N.J.Super. 443, 455, 913 A.2d 803 (App.Div.2006). However,
the court also stated correctly that attorney's fees must not be awarded simply to
punish a party. Chestone v. Chestone, 322 N.J.Super. 250, 259, 730 A.2d 890
(App.Div.1999). In this matter, the court found that Annicq had not deprived the
children of medical insurance coverage but had acted unreasonably in delaying
authorization for the diagnostic testing while he pressed his application for parenting
time.
*3 Concerning fees incurred by the parties, the court found that Annicq's attorney's
fees and expenses were $5,157 and Lisa's $9,821. No counsel fees had previously
been awarded during the litigation. As to fees each party had paid to counsel, Lisa
had paid significantly more than Annicq up to that date, although the decision does
not clarify for which of the several proceedings fees had been paid since the
judgment of divorce was entered.

With respect to results achieved, the court recognized that Lisa had succeeded in
obtaining authorization to communicate directly with the insurance carrier and that
Annicq had withdrawn his application for parenting time. The court noted, however,
that the allegations of sexual abuse made by Lisa against Annicq had been previously
considered and determined not to be supported by any evidence gained through the
psychiatric evaluation.

Next, the court found that both parties' applications had been made to enforce
existing court orders and that both attorneys' charges were fair and reasonable.
Finally, as to any other factors, the court found that Lisa had been granted exclusive
possession of the marital home through the divorce judgment, that she had sold the
home, but that she had not provided documentation as to disposition of the
proceeds.

Based on these findings, the court denied Lisa's application for attorney's fees and
costs, concluding that:

Father did not act unreasonably since Mother excluded him from medical consultation
and communication. Father's request for parenting time cannot be considered bad
faith conduct. Father's withdrawal of his Cross Motion represented a reflection of his
limited financial resources, thus cannot be reviewed [sic] as bad faith either.

We see no ground for disagreeing with this conclusion. While the trial court described
Annicq's position as unreasonable in delaying authorization for his son's medical
tests, the court's ultimate conclusion was that Annicq had a good faith basis for
contesting Lisa's prior conduct in depriving him of information about their son's
medical condition and in her efforts to exclude him from participation in medical
decisions. The seeming discrepancy in the court's dual references to Annicq as
“unreasonable” and “reasonable” can be adequately reconciled in terms of the
specific conduct referenced. On the one hand, Annicq was unreasonable in delaying
medical testing and treatment, but overall he had legitimate complaints and
concerns about being shut out of medical decisions about his son, and his request for
parenting time was made in good faith considering the absence of evidence of sexual
abuse and his need to learn firsthand about his son's medical condition.

Lisa contends that she could not communicate with Annicq about their son's
condition because of the domestic violence restraining order. The record on appeal
does not contain a copy of the order and the parties have not provided information
about its particulars. Even where a restraining order has been issued, however,
parents must be told important information about their children, especially serious
medical situations. Lisa should have communicated through third parties, perhaps
the attorneys, or returned to the court for modification of the restraining order to
provide for acceptable means of communication.

*4 Lisa argues that the trial court improperly faulted her for not filing a new case
information statement and for not providing documentation about disposition of the
proceeds from the sale of the marital home. She says the court should have
accepted her statement that she spent the proceeds on prior litigation costs.
Whether a case information statement was required or not, the financial
circumstances of the parties are relevant factors when considering attorney's fees
and the proceeds from the sale of the marital home were potentially available to Lisa
to pay her own fees. Also, despite a significant disparity in the gross employment
incomes of the two parties, the child support payments from Annicq to Lisa reduced
the difference in net disposable income. Annicq's decision not to pursue litigation for
parenting time was a further indication of his limited financial resources. The court's
determinations regarding the relative financial circumstances of each party were
supported by the record. The court was justified in demanding further information
about disposition of the proceeds from sale of the marital home.

We conclude that the trial court properly followed the dictates of Rule 5:3-5(c) in
determining whether Lisa was entitled to attorney's fees and did not abuse its
discretion in denying her application.

The order under review is affirmed.

N.J.Super.A.D.,2009.
Groetsema v. Groetsema
Not Reported in A.2d, 2009 WL 901884 (N.J.Super.A.D.)

END OF DOCUMENT

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