SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2470-18T1

IN THE MATTER OF 

JENNIFER ROSENSTOCK,

an Incapacitated Person.

________________________

Submitted January 28, 2020 – Decided September 11, 2020

Before Judges Fisher and Accurso.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Essex County, Docket No. CP0227-2007.

Weinberger Divorce & Family Law Group, LLC, 

attorneys for appellant Joel Rosenstock (Jessica Ragno 

Sprague, on the briefs).

Meyerson Fox Mancinelli & Conte, PA, attorneys for 

respondent Sandra Rosenstock (Lawrence N. 

Meyerson and Matthew M. Nicodemo, on the brief).

PER CURIAM

Joel Rosenstock, father of Jennifer Rosenstock, the subject of this 

guardianship proceeding, appeals from the fee provisions in two orders

NOT FOR PUBLICATION WITHOUT THE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.
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resolving the petition of his ex-wife Sandra Rosenstock, Jennifer's mother.1

We affirm the provisions of those January 3, 2019 orders directing Joel to pay 

fifty percent of the fees to the limited guardian appointed to replace Joel and 

Sandra as Jennifer's co-guardians and denying his application to have Sandra 

pay his fees in this matter. We reverse those aspects of the fee order directing 

that Joel pay sixty percent of the court appointed attorney and temporary 

guardian's fees and assume $6000 of Sandra's fees, agreeing with him that the 

court improperly premised those fee shifts on the hearsay statement of the 

court-appointed counsel and temporary guardian regarding Joel's unwillingness 

to resolve the fee issues in mediation.

Jennifer has a variety of developmental and intellectual disabilities and 

at fifteen was diagnosed with a psychiatric disorder necessitating an out-ofhome placement. She was declared an incapacitated person when she turned 

eighteen in 2007, with Joel and Sandra appointed co-guardians of her person 

and property. Her parents thereafter engaged in a very acrimonious divorce

after a twenty-three-year marriage. In their property settlement agreement

executed at the time of their divorce in 2010, Joel and Sandra acknowledged 

1

 Because all three of these individuals share the same last name, we will refer 

to them by their first names throughout, intending no disrespect by our 

informality.
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Jennifer's continuing special needs and their role as her co-guardians. They 

also agreed to "exert every reasonable effort" to ensure that Jennifer had 

unhampered access to each of them and that they would foster feelings of 

affection between each of them and Jennifer. In an acknowledgment of the 

bitterness of their divorce, the parties agreed "that all issues concerning 

Jennifer," including parenting time, selection of doctors and schools, 

applications for aid, the funding of a special needs trust and their percentage 

share of Jennifer's, unreimbursed expenses would be addressed by a parenting 

coordinator. 

At the time of Joel and Sandra's divorce, the parenting coordinator

reported that Jennifer, who was then in a residential treatment facility in 

Massachusetts, regularly communicated and wanted a relationship with both 

her parents, and was clear that she didn't want to be put in the middle of their 

disagreements. By 2013, however, after nearly three years of working with the 

family, the parenting coordinator reported a breakdown in the relationship 

between Jennifer and Joel, and concluded that Jennifer "had been encouraged 

to reject her father because of his remarriage." In a report to the court, she 

recommended the appointment of a forensic psychologist "experienced in 

issues of parental alienation" because she believed that Sandra was 
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transmitting her feelings about Joel to Jennifer, and that the only way to forge 

a reconciliation between them was therapeutic treatment.

The court appointed a forensic psychologist but therapy was not 

successful. In 2013, the family judge restrained Sandra from further acts of 

alienation and by 2016 had relieved Joel of any and all support obligations for 

Jennifer based on Sandra having cut Joel out of Jennifer's life and prevented 

him from acting as her co-guardian, and awarded him half his fees on the 

motion. Except for court ordered appearances, Joel had not been able to see 

Jennifer since 2012.

A little more than two months later, Sandra filed this action in the 

Probate Part to convert Jennifer's plenary guardianship to a limited 

guardianship and to remove Joel as Jennifer's co-guardian. As to Joel's 

removal, Sandra averred that Jennifer had "chosen not to have a relationship 

with her father," and, notwithstanding her wishes, Joel persisted in his efforts

to "force Jen into therapy and visitation against her wishes." The Probate Part 

judge issued an order to show cause why the relief requested in Sandra's 

petition should not be entered and appointed an attorney for Jennifer. 

Joel answered and filed a cross-petition in which he recounted Sandra's 

acts in alienating Jennifer from him, the Family Part's findings, and the order 
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relieving him of any further financial responsibility for Jennifer. He averred 

based on "the information available to [him]," that Jennifer continued to need a 

plenary guardian, and asked that he and Sandra continue to act as her coguardians, or, alternatively, that Sandra be removed or a neutral third-party be 

appointed in their stead. 

As the Probate Part judge acknowledged in his opinion on the fee 

applications, he had limited involvement in the case. The parties went to 

mediation in April 2017, where they agreed that Jennifer had made substantial 

progress toward independence in the four years she had been living in a group 

home in New Jersey, to the point that she required only a limited guardianship. 

They also agreed that both Joel and Sandra would resign as co-guardians, and 

that a neutral co-guardian they and Jennifer could agree on would be appointed 

in their stead. Until a permanent, limited guardian could be appointed, they 

agreed the court-appointed attorney would serve as a temporary limited 

guardian for Jennifer. What they apparently did not agree on was the fees. 

The consent judgment drafted by Sandra's counsel after the mediation 

provided that the cost of the mediator and the fees for the court appointed

counsel would be split evenly between Joel and Sandra with each being 

responsible for their own counsel fees, and that the temporary limited guardian 
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would receive a fee for his services to be approved by the court. The 

agreement did not address payment of the limited guardian's fees. The consent 

judgment for conversion from plenary guardianship to temporary guardianship 

and appointment of a temporary limited guardian ultimately signed by the 

parties and executed by the court in February 2018 provided, with regard to the 

fees, that the mediator's costs would be split evenly between Joel and Sandra, 

but all other fees, those for both court-appointed counsel and the temporary 

guardian and allocation of the parties' fees incurred in the proceeding, would 

be submitted to the court for resolution. The signed agreement, like the draft, 

was silent as to payment for the fees for the permanent limited guardian. 

The parties submitted briefs and fee certifications within weeks. Each 

argued they were entitled to fees under Rule 4:86-4(e). Sandra argued that 

Joel should bear the entire sum of her fees and costs of $56,857.24 based on 

his alleged bad faith, and that the parties should split evenly the fees of the

temporary guardian, as well as those costs of the limited guardian to be 

appointed. Sandra argued that she and Joel should also split evenly the cost of 

court appointed counsel through the date of mediation, but that Joel should be 

responsible for one hundred percent of the fees from after the mediation in

April 2017 through the court's execution of the consent judgment on February 
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18, 2018, based on his unwillingness to execute the consent judgment as noted 

by court-appointed counsel. Joel argued that he should not be responsible for 

any fees for Jennifer based on the Family Part order relieving him of any 

further financial responsibility for her in accordance with the doctrines of law 

of the case and collateral estoppel. He argued Sandra should be responsible 

for his fees based on her bad faith in having alienated Jennifer from him and 

preventing him from serving as her co-guardian.

The Probate judge did not issue his bench opinion on the fee issues for 

six months. He did not hear argument, and the parties offer no explanation for 

the delay. The orders memorializing his decision were not entered for another 

four months, for reasons also not explained.

In his oral opinion, the judge rejected Joel's argument that the court was 

bound by either collateral estoppel or law of the case from imposing fees 

related to this proceeding under Rule 4:86-4(e). He also determined there was 

no basis for a fee award to Joel under Rule 4:86-4(e) because Joel was not the 

party seeking guardianship. Looking to the Rule and In re Landry, 381 N.J. 

Super. 401 (Ch. Div. 2005), and acknowledging it was "[v]ery hard for [it] to 

make [a] determination as to what's going on here, the dynamics between 

mother and father, especially when [it] consider[ed] that there was this long-
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term matrimonial action that just continued . . . really until recently, even 

though they had been divorced for . . . a long period of time," and also noting 

that Jennifer was without assets from which any fees could be paid, the court 

determined that each party should bear their own fees for the proceeding and 

should split evenly the fees of the court-appointed counsel and temporary 

guardian for Jennifer, and, going forward, the fees for the limited guardian

whom they both agreed should replace them, with one exception. 

Based on the court-appointed attorney's unsworn statement in his report 

to the court that the matter dragged on after mediation because Joel was 

unwilling "to approve of a final pleading confirming the terms reached at 

mediation in April 2017," despite also noting that "[t]he parties were able to 

agree to certain parameters [for how to define a major medical, legal or 

financial decision] at mediation which were further negotiated post-mediation" 

(emphasis added), the judge found "it was [Joel] who would not do what was 

necessary to resolve the matter." The judge accordingly shifted $6000 of 

Sandra's $56,857.24 fee to Joel and allocated an additional ten percent of the 

court-appointed counsel and temporary guardian's $19,539.80 fee, or 

$1,953.98 to Joel, making that split 60/40 in favor of Sandra.
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Joel appeals, contending the Family Part order relieving him of any 

further financial responsibility for Jennifer precluded the Probate Part judge 

from allocating any percentage of the fees for this proceeding, and the cost of 

the neutral limited guardian he advocated for going forward, to him. He 

repeats the arguments he made to the trial court as to why Sandra should have 

been made responsible for his fees. He also contends the court erred in 

allocating a disproportionate share of the court-appointed counsel and 

temporary guardian's fees and the $6000 of Sandra's fees to him based on 

statements by the court-appointed counsel, repeated in Jennifer's counsel's 

brief, about what occurred in mediation. He argues those statements should 

not have been considered pursuant to N.J.S.A. 2A:23C-4, the privilege against 

disclosure of mediation communications.

A trial court has broad discretion in making a fee award permitted by 

rule or statute, which we only rarely disturb, and only for abuse of discretion. 

See Rendine v. Pantzer, 141 N.J. 292, 317 (1995). We have no hesitation in 

agreeing with the Probate Part judge that he was not bound either by the 

doctrines of law of the case or collateral estoppel from requiring Joel to 

contribute to the fees of this proceeding or the costs of employing the neutral 

limited guardian he asked the court to appoint for Jennifer. This was a 
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separate proceeding from the parties' post-judgment disputes over Jennifer, 

and, indeed, was precipitated by the Family Part judge's undoubtedly correct 

holding that he did not have jurisdiction over Jennifer's guardianship, or the 

disputes between her co-guardians.

This is a sad case in our view. A review of those proceedings in the 

Family Part included in the parties' appendices makes clear that the close 

relationship Joel enjoyed with Jennifer was destroyed following Joel and 

Sandra's divorce. The Family Part judge had no doubt that was in large 

measure due to Sandra's transferring her feelings about Joel to Jennifer. 

Although the court made several efforts at Joel's behest to restrain Sandra from 

acts of further alienation, and to attempt a rapprochement between Jennifer and 

Joel, it recognized that Jennifer's psychiatric condition limited any therapist's 

ability to challenge her perceptions about her father. More than one 

professional warned that challenging Jennifer risked worsening her condition, 

which had stabilized in recent years.

The Family Part judge ultimately held a hearing at which he took

testimony from Jennifer. Noting afterwards that Jennifer adamantly believed 

things about Joel that were demonstrably untrue, the judge found there was no 

further relief Joel could obtain in the Family Part beyond relieving him of any 
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financial obligations voluntarily undertaken at the time of the divorce, which 

the court ordered. Shortly thereafter, Sandra instituted this action to convert 

Jennifer's plenary guardianship to a limited guardianship and to remove Joel as 

Jennifer's co-guardian because, according to Sandra, he was working against 

Jennifer's independence and "unwilling to adapt to [her] change in 

circumstances."

Joel, of course, had been unable to see Jennifer for the prior four years, 

and had been prevented, in the Family Court's view, from acting as her coguardian by Sandra. When he became aware through Sandra's institution of 

this proceeding of the remarkable progress Jennifer had made toward living 

more independently, he abandoned his position that the plenary guardianship 

should continue and supported institution of a limited guardianship. Although

Joel came to recognize that Sandra was right that Jennifer was deserving of 

more independence than permitted in a plenary guardianship, and he succeeded 

in his goal of removing Sandra as Jennifer's guardian and installing a neutral 

third-party as Jennifer's limited guardian, he refused to acknowledge he had 

any responsibility toward the fees incurred in this proceeding and going 

forward, other than an equal share of the mediator's fee.
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Because the Probate Part judge acted well-within his broad discretion in 

making each party responsible for their own fees and making each share 

equally in the fees of the court-appointed counsel and temporary limited 

guardian, as well as the fees of the neutral third-party limited guardian 

appointed for Jennifer in this proceeding, we find no basis to disturb those 

orders. But as there was no competent evidence in the record that Joel was 

unwilling "to approve of a final pleading confirming the terms reached at 

mediation in April 2017," and that it was Joel "who would not do what was 

necessary to resolve the matter," and the judge's lack of any first-hand 

knowledge of such, we are constrained to find he misapplied his discretion in 

making Joel responsible for $6000 of Sandra's fees and shifting $1,953.98 of 

the court-appointed counsel and temporary guardian's fees from Sandra to Joel. 

We accordingly reverse those limited aspects of the January 3, 2019 

order on fees and remand for entry of an order consistent with this opinion,

leaving each party to pay their own fees and splitting evenly all other fees the 

court ordered the parties to assume. We affirm in all other respects. 

Affirmed in part, reversed in part and remanded for a conforming order. 

We do not retain jurisdiction.