Mother Compelled To Secure Passport And Pay Counsel Fees
- December 1, 2014
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In the recent Appellate Division case out of Union County, Lamb v. Lamb, the Defendant, Jill Lamb appealed from a portion of a 2013 post-judgment Court Order dealing with her child custody, specifically ordering her to 1) comply with obtaining a passport for the parties’ 14 year old daughter so that she could accompany her father, the Plaintiff, Lucas Lamb, to the Bahamas, and 2) awarding the Plaintiff’s attorney fees of $3,385. The parties in this case were married in 1999. They obtained a divorce in 2002, pursuant to a final divorce judgment that awarded them joint custody of A.L., their daughter. The Defendant is the parent of primary residence and the Plaintiff is the parent of alternate residence. The issue that gave rise to this appeal arose out of a Disney cruise trip to the Bahamas that the Plaintiff planned to go on with the parties’ daughter in 2013. The trip was to include the Plaintiff’s new wife and their two children as well as A.L. In 2013, the Plaintiff e-mailed the trip details to the Defendant and explicitly asked the Defendant to confirm that she agreed to allow A.L. to attend the trip. The Defendant responded that she agreed as long as the trip did not cause any conflicts with A.L.’s school schedule. In these e-mails, the Plaintiff asked whether A.L.’s passport was current and told the Defendant that if the passport was expired he would take her during his parenting time to update it. The Plaintiff argued that the trip did not require A.L. to secure a passport and an altercation ensued. The Defendant argued that Disney suggested that passengers have a passport in case he or she got sick and needed immediate health care. In June of 2013, the Plaintiff filed an Order to Show Cause (OTSC) because the passport issue remained unresolved. The court found that there was not material facts in dispute and ordered the Defendant to cooperate in obtaining a passport for A.L. and ordered that the Defendant pay the Plaintiff’s legal fees to bring the action totaling $3,385. The Defendant appealed from this decision. In her papers, the Defendant admitted that the passport issue was a moot point because she had agreed to allow the parties’ daughter to go on the cruise and she executed the passport documents and the trip took place but argued that she did not act in bad faith with regard to the passport and the court erred in directing her to pay the Plaintiff’s legal fees. The Appellate Division agreed that the passport issue was moot holding that an issue becomes moot when “when the original issue presented has been resolved, at least concerning the parties who initiated the litigation.” De Vesa v. Dorsey, 134 N.J. 420, 428 (1993). With regard to the award of counsel fees, the Defendant argues that the motion judge failed to consider the required factors under N.J.C.R. 5:3-5(c) and only focused on the bad faith factor. According to the Appellate Court, a judge in a matrimonial action may award a party reasonable attorney’s fees and to make that determination shall “consider . . . the good or bad faith of either party.” N.J.S.A. 2A:34-23; N.J.C.R. 5:3-5(c). The court held that the motion judge’s analysis of the factors could have been more detailed but the record indicated that the counsel fees were awarded to Plaintiff as a direct result of his efforts to compel the Defendant’s compliance with an already agreed upon visitation and therefore the award was not unreasonable. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.