RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0529-19T3

M.A.P.,

Plaintiff-Appellant, 

v.

N.G.R.,

Defendant-Respondent.

________________________

Submitted November 12, 2020 – Decided 

Before Judges Ostrer and Accurso.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Middlesex County, 

Docket No. FV-12-1649-17.

Gomperts Penza McDermott & Von Ellen, LLC, 

attorneys for appellant (Marisa Lepore Hovanec, of 

counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

January 7, 2021
2

A-0529-19T3

In this family case, plaintiff appeals from the trial court's order that she 

pay defendant's counsel fees. The court found that plaintiff engaged in motion 

practice in bad faith. Because the record does not support the court's finding, 

and the court applied the wrong legal standard, we reverse. 

I. 

Plaintiff's motion practice arose out of a longstanding domestic violence 

case. Plaintiff obtained a final restraining order (FRO) by default against 

defendant in April 2017. The FRO awarded plaintiff temporary custody of the 

parties' then six-month-old daughter; barred parenting time; and ordered that 

defendant pay $250 in weekly child support. Almost a year later, the court 

modified the custody arrangement after finding that defendant had 

"satisfactorily completed the alcohol/drug evaluation/treatment anger mgmt. 

[sic] & psychiatric evaluation set forth in the FRO." The amended order granted 

the parties joint legal custody; designated plaintiff the parent of primary 

residence, and defendant, parent of alternate residence. The order included a 

parenting time schedule that granted defendant gradually increasing time with 

his daughter, with parenting time exchanges at a police department. The parties 

were permitted to communicate by text message regarding the child. The court 

reserved decision on plaintiff's application to modify child support, ordering that 
3

A-0529-19T3

it be relisted for a hearing after defendant provided certain financial information. 

The court also reserved on the parties' counsel fee requests.

In May 2018, the court amended the FRO again, to modify child support. 

The court increased defendant's obligation to $305 weekly, retroactive to 

October 4, 2017. The new order did not include a regular arrears payment, nor 

did it oblige defendant to pay a lump sum for the arrears created by the 

modification. Counsel fees were not addressed.

Two months later, in July 2018, prompted in part by defendant's alleged 

violation of the FRO, plaintiff filed a motion asking the court to suspend 

overnight visitation pending defendant's completion of anger management and 

the recommendation of a court-appointed evaluator. She asked the court to 

require defendant to submit to an alcohol abuse evaluation and also requested 

that the court require defendant to pay arrears in a lump sum; and award her 

fees. She filed the motion after the court denied without prejudice an order to 

show cause, deeming her requests for relief non-emergent. 

In her supporting certification, plaintiff stated that police arrested 

defendant for harassing plaintiff after using coarse and profane language in the 
4

A-0529-19T3

police's presence, during a child transfer.1 She also said that defendant stayed 

overnight at unsuitable places with the child, and took the child to a home where 

people abused drugs and alcohol. She also contended that the child was returned 

from parenting time with unexplained bruises and unchanged diapers, and the 

child once complained that her private area hurt and someone touched her there. 

Plaintiff's counsel also noted that defendant filed a domestic violence complaint 

against her, but he was denied a temporary restraining order.

Defendant cross-moved for various forms of relief, to expand his role in 

his daughter's life; to increase his access to information about the child and to 

participate in decision-making; to conduct child transfers at the child's childcare, 

daycare, or school without the other party present, instead of at the police 

department; and to require the parties to use Family Wizard for communications 

about the child. Defense counsel argued that defendant's most recent arrest for 

violating the restraining order should not be considered because the charge was 

not yet resolved. Counsel also denied that his client mistreated his daughter, or 

that he exposed her to substance abuse. Referring to an off-the-record 

discussion in chambers, defense counsel asserted that plaintiff also made a 

1 Plaintiff provided only an excerpt from her supporting certification. We rely 

on that, and her counsel's oral argument in October 2018 for an understanding 

of her requests for relief.
5

A-0529-19T3

baseless referral to the Division of Child Protection and Permanency. Regarding 

child support, counsel conceded that the child support payments were 

interrupted. While self-employed, defendant paid child support through 

Probation, but when he obtained a job with another employer, Probation was 

slow to implement garnishment of the $305 amount. Counsel contended that 

Probation ultimately ordered payment of $30 a week toward arrears, although 

the record does not include that order.

Defendant also requested counsel fees, contending that plaintiff filed her 

motion in bad faith, without the requisite change in circumstances to justify 

modifying parenting time. Counsel characterized it as a substitute for an appeal 

of the parenting time order entered earlier that year. In support of his request, 

defense counsel noted that the trial court — by a different judge — had denied 

emergent relief. 

Plaintiff's counsel responded that plaintiff had presented new 

circumstances to justify modifying parenting time. Regarding defendant's 

request for medical and school information, counsel stated that plaintiff 

regularly provided it, and that defendant was entitled to communicate with 

medical providers and educators. Plaintiff did not oppose utilizing Family 

Wizard.
6

A-0529-19T3

In the trial court's oral decision after argument in October 2018, the court 

noted that the parties disputed various factual matters, presenting "a bunch of he 

said, she said because it's unsubstantiated and uncorroborated information." The 

court evidently did not deem the factual disputes material to resolve or to justify 

a plenary hearing. Regarding the alleged bruises, the court observed that 

children sometimes fall, and bruises also manifest themselves days after an 

incident. The court did not address plaintiff's allegations regarding defendant's 

violation of the FRO at the police station. 

The judge required that pick-up and drop-off continue at the police 

department, and did not alter the parenting times. Noting plaintiff's consent, the 

court ordered that defendant receive contact information for medical providers 

and educators; and that he be permitted to attend the child's extra-curricular 

events so long as he sits as far away from plaintiff as possible.

Regarding child support, the court made no findings regarding defendant's 

arrearages. Defendant agreed on the record to pay unspecified lump sums to 

reduce his arrearages. The court's order provided only that he "endeavor to 

satisfy the child support arrearages in a timely fashion." 

Noting the high level of discord between the parties, the court ordered that 

each undergo evaluations within ninety days, by providers of their choice from 
7

A-0529-19T3

a list the court provided, to determine if they needed substance abuse treatment 

or anger management therapy. The court stated it would revisit the issues upon 

receiving the evaluations. 

The court also reserved decision on counsel fees. The judge stated on the 

record, apparently referring only to defendant's request for fees:

I'm going to hold off on that. I'm going to reserve, only 

because I want to see what the evaluations tell me. 

Because the evaluations might tell me something that 

raises an eyebrow, that rings a bell, and I'm going to say 

wait a minute, wait a minute, [M.A.P.] had a reason 

why she needed all this stuff. And she had a reason 

why she came back here today.

The parties returned to court in February 2019. Both parties had 

undergone the required evaluations.2 Defense counsel contended the only issue 

that remained was counsel fees, and the motion judge agreed. Defense argued 

that plaintiff's prior motion was frivolous, and plaintiff secured no relief in her 

favor. He contended that his client had fully complied with his child support 

obligation; that Probation was to blame; and, based on his additional payments, 

he had reduced his arrears by half. 

Plaintiff appeared at the hearing pro se. She stated she could no longer 

afford her legal bills after spending over $30,000. She explained that she filed 

2 They are not in the record before us.
8

A-0529-19T3

her motion because defendant had violated the FRO by directing coarse and 

profane language at her at the police station. She asserted that the court denied 

her order to show cause as non-emergent because her counsel delayed several 

weeks in filing the application after the precipitating incident at the police 

station. She asserted defendant was found guilty of violating the FRO. 

Defense counsel responded that defendant pleaded guilty only to 

disorderly conduct in municipal court. After the hearing, plaintiff submitted to 

the court a letter she received from the Middlesex County Prosecutor's Office, 

regarding "State v. [N.G.R.] Violation of Restraining Order." The letter stated 

that defendant appeared before Superior Court Judge Deborah J. Venezia on 

October 19, 2018 and was found guilty, required to pay a monetary penalty of 

$225, received 2 days of jail time with credit for time served, and required to 

obey the FRO if still active. However, the letter did not state what crime or 

offense defendant was found guilty of. 

During oral argument, the court counseled the parties to attempt to 

cooperate; and, directing her comments to plaintiff, to resist the impulse to 

complain about "petty" violations of parenting time arrangements. 

Before issuing her decision on fees, the judge encouraged defense counsel 

and defendant to discuss reducing or waiving defendant's demand for fees. 
9

A-0529-19T3

Counsel for defendant stated the billings would need to be updated; but as of 

that date, defendant owed "about $12,000," and he would accept $5,900 to 

resolve his counsel fee request. Plaintiff responded that she was not aware the 

purpose of the hearing was to decide counsel fees, and she renewed her request 

for fees, noting that she owed her attorney $5,000 and defendant owed her 

$1,000 in child support arrears. The motion judge abruptly stopped the hearing 

and ordered updated certifications filed with the court, without setting forth any 

decision on the record.

Defendant's counsel thereafter certified that his client incurred $15,225.75 

in legal fees, and counsel requested that plaintiff pay the amount in full. Plaintiff 

submitted to the court documents indicating she owed at least $8,000 to the two 

firms she used before representing herself.3

Six months later, without additional argument, the court entered an order 

granting defendant's request for fees. The court did not provide a separate 

statement of reasons. However, citing Williams v. Williams, 59 N.J. 229, 233 

(1971), the order stated, "when deciding whether to award counsel fees, the trial 

judge must consider the requesting party's need, the requesting party's financial 

3 The amount may have exceeded $9,000, if one considers a July 2018 

certification of her first counsel, but the record before us does not clearly 

indicate that plaintiff submitted that certification to the court. 
10 A-0529-19T3

ability to pay, and the requesting party's good faith in instituting or defending 

the action." Citing Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992), 

the court explained that "bad faith, in the context of counsel fee awards, has 

been construed to signify that a party acted with a malicious motive, so as to be 

unfair, and to use the court system improperly to force a concession not 

otherwise available." The court found that "[p]laintiff has acted in bad faith, as 

her motion re-litigated issues that were already decided upon — child support 

modification — and did not provide evidence of a substantial change of 

circumstances." 

Noting that defense counsel has asked for payment of $15,225.75, the 

court ordered plaintiff was required to pay $5,938.04, which the court deemed

"reasonable and fair in this case." If plaintiff failed to pay the amount by 

October 20, 2019, she was required to appear in court on October 25, 2019 "to 

advise this [c]ourt why she should not be held in contempt." The court denied 

plaintiff's motion for fees without explanation. 

Plaintiff thereafter filed this appeal, challenging the court's fee decision.4 

4 After the deadline for filing his brief and appendix passed, defendant filed a 

letter stating he would not be filing a brief or appendix. He nonetheless included 

argument in support of affirmance and presented new facts not presented to the 

trial court. We decline to consider these arguments. The brief was untimely 
11 A-0529-19T3

II.

According to Rule 4:42-9(a), fees may be awarded in a family action 

pursuant to Rule 5:3-5(c). A family action includes disputes between unmarried 

persons over child support and parenting time. See Fall & Romanowski, N.J. 

Family Law, Child Custody, Protection & Support, § 40:3-3(b) (2020); R. 5:3-

5(c) (authorizing fee allowance in an action involving claims of support, custody 

and parenting time).

Rule 5:3-5(c) includes a mandatory, but not exhaustive, list of factors that 

a trial court must consider before deciding to award fees and setting the amount. 

See Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (stating that the court 

shall consider the factors "[t]o determine whether and to what extent such an 

award is appropriate"); R. 5:3-5(c) (stating the court "should consider" 

enumerated factors); N.J. Family Law, Child Custody, Protection & Support, § 

40:3-2 (describing factors as "mandatory criteria"). A court shall 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) 

and did not conform with the Court Rules. See R. 2:6-2(b) (regarding letter 

briefs). And we shall not consider facts "that were not provided to the trial 

court." Matison v. Lisnyansky, 443 N.J. Super. 549, 551 n. 1 (App. Div. 2016).
12 A-0529-19T3

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).]

Although we shall "disturb a trial court's determination on counsel fees 

only on the 'rarest occasion,' and then only because of [a] clear abuse of 

discretion," Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) 

(quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)), this appeal presents one 

of those rare occasions. A court abuses its discretion when it does not provide

a rational explanation for its decision; when it relies on inappropriate factors or

fails to consider relevant factors; or the court makes a clear error in judgment. 

Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quotations and 

citations omitted). In particular, an appellate court is not obliged to defer to a 

fee award when the trial court, as here, has not considered the mandatory factors 

under Rule 5:3-5(c), see Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 

572 (App. Div. 2003) (vacating counsel fee award where trial court did not 

address Rule 5:3-5(c) factors), and instead, has misstated the legal standard for 

awarding fees. 
13 A-0529-19T3

Turning to the Rule 5:3-5(c) factors, the court failed to consider the 

parties' financial circumstances, their respective ability to pay their own fees, 

and the amount of fees already incurred and paid. See R. 5:3-5(c)(1), (2), (4), 

(6); see also Barr, 418 N.J. Super. at 47 (reversing a trial court's grant of counsel 

fees, in part because the court "failed to analyze the parties' relative incomes or 

plaintiff's ability to pay her own counsel fees"). The record reflects plaintiff has 

legal bills of at least $8,000. She stated she had already expended over $30,000 

in fees. According to the child support order, defendant's income is almost 

seventy-five percent more than plaintiff's. At the second motion hearing, 

plaintiff informed the court, while under oath, she was proceeding pro se as she 

could no longer afford her own legal bills. Notably, the court misstated that 

Williams v. Williams, 59 N.J. 229, 233 (1971) requires a court to consider only

"the requesting party's need, the requesting party's financial ability to pay, and 

the requesting party's good faith in instituting or defending the action." 

The court also erred in finding plaintiff had instituted the litigation in bad 

faith. "[B]ad faith for counsel fee purposes relates only to the conduct of the 

litigation." Mani v. Mani, 183 N.J. 70, 95 (2005). "An award of attorney's fees 

to the adverse party is appropriate if the court finds the proceedings to have been 

frivolous and instituted for the purpose of harassment as well as abuse of the 
14 A-0529-19T3

judicial system." Pressler & Verniero, Current N.J. Court Rules, cmt 4.3.3 on 

R. 5:3-5 (2021). By referring to the "reasonableness" and the "good faith" of 

the positions a party has advanced, the rule indicates two discrete, but related 

concepts. See Louis & Seiden, N.J. Family Law, Divorce, Alimony & Property

Division § 19:7-2(b) (2021). Advancing a losing argument, even if "ill-founded 

and perhaps misguided," does not, by itself, prove bad faith. Slutsky v. Slutsky, 

451 N.J. Super. 332, 367 (App. Div. 2017) (quoting Tagayun v. AmeriChoice of 

N.J., Inc., 446 N.J. Super. 570, 580 (App. Div. 2016)). "Examples of bad faith

include misusing or abusing process . . . intentionally misrepresenting facts or 

law, or otherwise engaging in vexatious acts for oppressive reasons." Ibid.

(citing Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992)).5

In finding that plaintiff acted in bad faith, the court applied the wrong 

standard, and mischaracterized plaintiff's motion. The trial court found that 

plaintiff acted in bad faith because her "motion re-litigated issues that were 

already decided upon — child support modification — and did not provide 

5 Although the Slutsky court also equated "bad faith" with "seeking relief not 

supported by fact or law," 451 N.J. Super. at 367, we assume, by its citation to 

Borzillo, that it meant to say, "[t]o seek relief which one knows or should know 

that no reasonable argument could be advanced in fact or law in support thereof." 

Borzillo, 259 N.J. Super. at 293. As the Slutsky court observed, honestly 

presenting an "ill-founded" argument is not bad faith.
15 A-0529-19T3

evidence of a substantial change of circumstances." Even if this were true, that 

falls short of a finding that plaintiff misused or abused process, intentionally

misrepresented facts, or engaged in vexatious acts with the purpose to oppress. 

However, the court grossly mischaracterized plaintiff's motion. Plaintiff 

did not seek to relitigate issues by seeking a modification of child support. 

Rather, plaintiff sought enforcement of the previous order by a lump sum 

payment of arrears. The May 2018 child support order increased plaintiff's 

award by $55 a week retroactive several months, but did not address how arrears 

would be paid. Plaintiff was not required to demonstrate a change in 

circumstances to secure an order pertaining to an issue the court had not 

previously addressed. Furthermore, defense counsel conceded in argument in 

October 2018 that there was a subsequent gap in payments which evidently 

increased defendant's arrears even more. Although the trial court neither 

established arrears, nor addressed defendant's capacity to pay a lump sum, the 

court did vaguely direct defendant to try to reduce the arrears. So, to that extent, 

plaintiff partially prevailed on her only child-support-related claim.

Furthermore, the court ignored the thrust of plaintiff's motion, which was 

sparked by defendant's then-alleged violation of the FRO, and also reflected 

plaintiff's concerns about defendant's care of the child[]. Plaintiff sought 
16 A-0529-19T3

suspension of overnight parenting time pending anger management and 

substance abuse evaluation. The court ordered defendant to submit to an 

evaluation.6 Particularly since the court failed to make findings regarding 

plaintiff's factual allegations, the court lacked a basis for deciding they were 

raised in bad faith. Even after defendant was convicted before Judge Venezia, 

the trial judge declined to make a finding regarding defendant's compliance with 

the FRO. In sum, the court's finding that plaintiff litigated in bad faith is 

unsupported by law or fact. 

Lastly, in arriving at a counsel fee award of $5,938.04, which it deemed 

"reasonable and fair," the court provided no basis as to how it arrived at the 

amount. In determining counsel fees, the court was required to "determine the 

'lodestar,' which equals the number of hours reasonably expended multiplied by 

a reasonable hourly rate." J.E.V. v. K.V., 426 N.J. Super. 475, 493-94 (App. 

Div. 2012) (quoting Yueh v. Yueh, 329 N.J. Super. 447, 464 (App. Div. 2000)). 

Plaintiff also asks us to reverse the trial court's denial of her request for 

counsel fees. Our conclusion that the court erred in granting defendant fees does 

not compel an award of counsel fees to plaintiff. The record before us does not 

6 Without notice of any cross-motion by defendant, the court also sua sponte 

ordered that plaintiff submit to an evaluation. 
17 A-0529-19T3

indicate that plaintiff provided to the trial court an affidavit of services that 

addressed all the factors enumerated by RPC 1.5(a), as Rule 4:42-9(b) requires. 

Plaintiff also did not provide sufficient information regarding the financial 

circumstances of the parties, to enable the court to address the relevant factors 

under Rule 5:3-5(c). In sum, the record lacks sufficient grounds to justify an 

award of fees to plaintiff. 

We therefore reverse the trial court's award of fees to defendant and affirm 

the trial court's denial of fees to plaintiff.