                                NOT FOR PUBLICATION WITHOUT THE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-3782-17T4



MAUREEN C. CRAWFORD,

          Plaintiff-Respondent,

v.

PAUL J. MINCH,

     Defendant-Appellant.
_____________________________

                    Submitted April 4, 2019 – Decided July 9, 2019

                    Before Judges Whipple and Firko.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Union County, Docket
                    No. FM-20-0128-17.

                    The Marks Law Group, LLC, attorneys for appellant
                    (Erika R. Marks, on the briefs).

                    Maureen C. Crawford, respondent pro se.
PER CURIAM

      Defendant Paul J. Minch appeals from a March 16, 2018 Family Part order

requiring him to pay counsel fees. We affirm.

      Plaintiff Maureen Crawford and defendant were married for roughly one

and one half years before divorcing on December 22, 2016. They had one child.

The parties executed a Matrimonial Settlement Agreement (agreement). Under

the agreement defendant received "general, reasonable and liberal shared

parenting time." Because defendant was deployed overseas in the armed forces,

the parties did not formalize a parenting schedule at that time.

      On June 21, 2017, defendant moved for a parenting schedule, holiday

schedule, child support modification and joint custody. On August 15, 2017,

plaintiff cross-moved opposing defendant's motion and seeking enforcement of

the agreement regarding child support, sole custody and counsel fees. Plaintiff

alleged in her certification in support of her motion that defendant was a

substance abuser, had mental health issues and possessed numerous firearms.

      On October 13, 2017, to clarify a previously entered tentative disposition,

the court entered an order requiring the parties to attend custody and parenting

time mediation and defendant's home was to be inspected with a report to be

provided to the court. If mediation was unsuccessful, the court would order a


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                                        2
best interest evaluation. The judge ordered that defendant's weekly parenting

time was to be supervised through Cooperative Counseling Services (CCS). The

parties were ordered to split both the cost of the supervised visits and defendant's

substance abuse evaluation. Defendant was ordered to provide a complete

accounting of any weapons he currently possessed, weapons previously in his

possession and the current whereabouts of all his weapons. Defendant was to

continue to pay child support pursuant to the agreement. The court denied

plaintiff's request for counsel fees without prejudice. The judge scheduled a

case management conference.

      Defendant's home inspection report raised no concerns, and defendant

began supervised parenting time at CCS. On October 19, 2017, defendant

certified he sold the last of his guns in 2015 and possessed no guns since.

Accompanying the certification was a document with the weapons' serial

numbers and the method of sale.        Defendant underwent a substance abuse

evaluation, and he tested positive for anabolic steroids and alcohol. The parties

attended parenting time mediation twice but reached no agreement.

      On December 14, 2017, the parties appeared in court with counsel to

review the supervised parenting time report and attend custody and parenting

time mediation. The parenting time report concluded:


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                                         3
            Given the structure and protected setting of visitation
            services at CCS, [defendant] has overall provided
            adequate care for [E.M.] with prompting and guidance
            from staff. However, [defendant] requires reminders to
            provide supplies/snacks to visits. Predictions regarding
            [defendant's] ability to provide care for [E.M.] in an
            unsupervised setting cannot be made at this time. At
            this time, CCS makes the following recommendations:

                  1. [Defendant] [is] to continue having visitation
            with [E.M.] that is supervised by a neutral party until a
            bond between him and [E.M.] has been further
            established, and/or until [defendant] and [plaintiff]
            mutually come up with another agreement.

      On January 10, 2018, the court conducted a case management conference.

The resulting case management order required updated case information

statements and ordered defendant to pay for a large share of additional

evaluations for both parties. Defendant was ordered to comply with previous

orders to provide proof of sale of his weapons with receipts, dates of sale,

permits and whereabouts of his weapons. The judge scheduled a trial date for

January 31, 2018, to address the best interests of the child, custody, parenting

time, legal fees and child support.

      On January 31, 2018, the court held another case management conference

and ordered defendant to provide information about his workers' compensation

case and to hold settlement funds in escrow to pay for the evaluations ordered

on January 10, 2018. Defendant was placed on a two missed payment bench

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                                       4
warrant status for missed child support payments, and the issue of defendant's

gun ownership was referred to the Union County Prosecutor's Office. The court

ordered defendant to advise the court of whether he intended to comply with the

January 10 order.1

      On February 12, 2018, the court held another case management

conference and defendant advised the court that he could not afford to retain the

experts required by the January 10 order. Plaintiff's counsel submitted a request

for attorney's fees. The judge issued an order that required defendant to have

supervised parenting time, at his own expense, and requested regular status

reports. Defendant was ordered to submit opposition to plaintiff's request for

counsel fees by February 16, 2018, and the court relisted the matter for February

23, 2018, to address child support obligations.

      On February 23, 2018, defendant withdrew his request for unsupervised

parenting time. The court ordered defendant to submit to another substance

abuse evaluation. On March 16, 2018, the court entered an order for counsel

fees. The court ordered defendant to pay $26,715.62 to plaintiff's attorney,




1
  The Union County Prosecutor's Office, after speaking with defendant, declined
to pursue an investigation.
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                                       5
payable in monthly installments of $250 for 8.8 years, and set defendant's child

support obligation at $1025 per month. This appeal followed.

      On appeal, defendant argues the judge abused her discretion by ordering

him to pay counsel fees because she erroneously focused on defendant's conduct

during litigation, rather than the position he advanced. Defendant also argues

ordering him to pay plaintiff's legal fees to enforce existing orders was not

justified and his conduct did not constitute bad faith.

      Our "review of a trial court's fact-finding function is limited." Cesare v.

Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial

court are binding on appeal when supported by adequate, substantial, credible

evidence."    Id. at 411-12.    Consequently, the factual findings and legal

conclusions reached by the Family Part judge will not be set aside unless the

court is "'convinced that they are so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as to offend the

interests of justice' or . . . we determine the court has palpably abused its

discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting

Cesare, 154 N.J. at 412). However, we owe no special deference to the trial

court's legal conclusions.      Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).


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                                        6
      An award of attorneys' fees and costs in matrimonial cases is a matter

committed to the discretion of the trial court. See Williams v. Williams, 59 N.J.

229, 233 (1971). "In our review, '[w]e will disturb a trial court's determination

on counsel fees only on the "rarest occasion," and then only because of clear

abuse of discretion.'" Slutsky v. Slutsky, 451 N.J. Super. 332, 365 (App. Div.

2017) (alteration in original) (quoting Strahan v. Strahan, 402 N.J. Super. 298,

317 (App. Div. 2008)). In exercising that discretion, however, the court must

comply with N.J.S.A. 2A:34-23, which requires consideration of "the factors set

forth in the court rule on counsel fees, the financial circumstances of the parties,

and the good or bad faith of either party." Mani v. Mani, 183 N.J. 70, 94 (2005)

(quoting N.J.S.A. 2A:34-23).

      The factors set forth in the rule on counsel fees include:

            (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;

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                                         7
             (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).]

             "[T]he court must also 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 . . . ; the
             nature and extent of services rendered; and the
             reasonableness of the fees."

             [Mani, 183 N.J. at 94-95.]

Bad faith "implies something more than a showing of a mistaken, unreasonable

or frivolous position"; rather, "[i]t requires a party to have malicious motives,

to be unfair, to desire to destroy the opposing party, to use the court system

improperly to force a concession not otherwise available." Kelly v. Kelly, 262

N.J. Super. 303, 308 (Ch. Div. 1992).

      Here, the judge considered the factors set forth in Rule 5:3-5(c). With

respect to factors one and two, the judge stated, "[i]t is difficult for the [c]ourt

to ascertain which party has the greater ability to pay for the other's counsel fees,

but acknowledges that it cannot completely ascertain [d]efendant's current

financial circumstances[.]"

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                                          8
     Relying on factor three, the good faith and reasonableness of the parties,

the judge found:

           Defendant has disregarded [c]ourt [o]rders set
           specifically to allow him to exercise parenting time
           with his daughter, which was his original request in
           June 2017. Defendant did not comply with [c]ourt
           [o]rders to certify that he no longer had weapons and
           that [the] same were secured, etc. The [c]ourt has
           absolutely no way to determine whether the weapons
           were actually sold based on the information [d]efendant
           provided, as he provided no receipts for the sale of the
           weapons. Although [d]efendant has complied with
           some provisions of [c]ourt [o]rders such as undergoing
           substance abuse evaluations, urine screens, a [Division
           of Child Protection and Permanency] investigation, and
           psychological evaluation, [d]efendant unilaterally
           stopped going to the [c]ourt [o]rdered supervised
           parenting time and did not schedule the psychiatric and
           best interest evaluation set forth in the [c]ourt's January
           10, 2018 [o]rder. It was only after nearly seven months
           that [d]efendant decided to amend his motion and seek
           only supervised parenting time, rather than joint
           custody and a visitation schedule with overnights.
           Defendant is also not up to date on his child support.
           All of these actions caused [p]laintiff extensive and
           unnecessary counsel fees. Thus, the [c]ourt concludes
           [d]efendant has not acted entirely reasonable nor in
           good faith.

     In considering factors four, five and six, counsel fees incurred, paid and

previously awarded, the judge found plaintiff paid $30,738.93 to date, and

defendant owed his attorney $11,000. The judge found factor seven, results



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                                       9
obtained, mostly favored plaintiff as defendant sought joint custody but

ultimately modified his request to accept supervised parenting time.

      Applying factor eight, enforcement of existing orders or to compel

discovery, the judge found a counsel fee was warranted given defendant's blatant

failure to abide by court orders and the necessity to return to court on numerous

occasions. The court found defendant would not have succeeded on his original

motion, because he did not abide by the court's order to provide funding for a

best interests evaluation.     Thus, the judge found defendant's bad faith

necessitated a fee award.

      Plaintiff initially requested $42,413.50 in counsel fees. After deductions,

the judge ultimately awarded plaintiff $26,715.62 in counsel fees to be paid

directly from defendant to plaintiff's attorney.

      We discern no error in the judge's determination that defendant's failure

to abide by court orders constituted bad faith. "Bad faith and assertion of an

unreasonable position is properly considered in awarding a counsel fee[.]" Diehl

v. Diehl, 389 N.J. Super. 443, 455 (App. Div. 2006). "[T]he purpose of the

award is to protect the innocent party from unnecessary costs and to punish the

guilty party." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).




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                                       10
Plaintiff was forced to incur unnecessary attorney's fees to compel defendant's

compliance with the court orders. We defer to the judge's finding that at every

turn defendant failed to meet his court ordered obligations.

      We also reject defendant's argument that it was error for the judge to

award counsel fees because plaintiff obtained a favorable outcome.          We

recognize defendant's position in seeking parenting time was not necessarily

without merit. But the issue was never resolved on the merits because defendant

did not pay for court-required experts for the case to go to trial. Defendant

ultimately withdrew his request for unsupervised parenting time, but the judge

explained that because supervised parenting time was ordered on October 13,

2017, all litigation after that date could have been avoided.

      We have carefully reviewed defendant's remaining arguments and have

determined they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                       11
