RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1446-16T3

A-1552-16T3

IN THE MATTER OF THE ADOPTION

OF A CHILD BY M.E.B. and K.N.

______________________________

M.E.B. and K.N.,

Plaintiffs-Appellants,

v.

S.D.G. and R.C.N.-B.,

Defendants-Respondents. 

_______________________________

Argued May 30, 2018 – Decided July 16, 2018

Before Judges Koblitz, Manahan and Suter. 

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Morris County, 

Docket Nos. FA-14-0051-15 and FD-14-0059-16.

Jason R. Melzer argued the cause for 

appellants (Cole Schotz, PC, attorneys; Joseph 

Barbiere and Jason R. Melzer, of counsel and 

on the brief; Neoma M. Ayala on the brief). 

Jeffrey S. Mandel argued the cause for 

respondents (Law Offices of Jeffrey S. Mandel, 

LLC, attorneys; Jeffrey S. Mandel, of counsel 

and on the 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NOT FOR PUBLICATION WITHOUT THE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.
2 A-1446-16T3

Plaintiffs, paternal grandparents M.E.B. and K.N., filed an 

adoption complaint seeking to adopt their granddaughter, E.G. E.G. 

is the daughter of defendant S.D.G. and plaintiffs' son, defendant

R.C.N.-B. Plaintiffs received temporary custody of E.G., but 

produced no evidence of abandonment and defendants did not consent 

to the adoption. The complaint was ultimately dismissed for lack 

of subject matter jurisdiction. During the pendency of this 

action, plaintiffs filed a visitation complaint, which was also 

contested by defendants. The visitation action was eventually 

voluntarily dismissed by plaintiffs. 

The trial court awarded attorney's fees to defendants as to 

both actions, which is the sole issue on appeal. Because the 

court did not abuse its discretion, we affirm.

I.

At the time the original adoption complaint was filed, 

plaintiffs resided in Woodstock, New York. S.D.G. resided with 

her parents in Mendham Township, New Jersey while R.C.N.-B.

initially resided with plaintiffs in Woodstock. R.C.N.-B. and 

S.D.G. are not married to each other and were twenty-one and twenty 

years old, respectively, when E.G. was born.

S.D.G. has retained custody of E.G. and resided at her 

parents' residence with E.G. in Mendham since her birth. Both of 

S.D.G.'s parents provided financial support to both E.G. and S.D.G. 
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S.D.G.'s parents provided a nanny to assist in E.G.'s care. S.D.G.

enrolled E.G. in a daycare in Mendham. According to S.D.G., 

R.C.N.-B. assisted in the care of E.G., who stayed at plaintiffs' 

residence in Woodstock approximately eight days per month since 

October 2014.

S.D.G. suffers from bipolar disorder and is required to take 

medication. S.D.G. admits that she stopped taking her medication 

in late 2014 and began abusing alcohol. On January 2, 2015, she 

admitted herself into the Carrier Clinic, a rehabilitation 

facility in New Jersey, where she remained for four days. She 

then admitted herself into a rehabilitation facility in Florida, 

where she stayed for one month. While S.D.G. received treatment, 

E.G. remained in the care of S.D.G.'s parents in Mendham.

According to S.D.G., the nanny became unavailable during this 

time and plaintiffs offered their assistance in caring for E.G. 

S.D.G. consented to E.G. spending time with R.C.N.-B. and 

plaintiffs in Woodstock. While in the rehabilitation facility, 

S.D.G. applied to a macrobiotic cooking school in Massachusetts 

and enrolled in the two-and-a-half month program after returning 

home from the facility. During this period, S.D.G. permitted E.G. 

to spend time in Woodstock with R.C.N.-B. and plaintiffs. 

According to plaintiffs, they began caring for E.G. on an "every 
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other week schedule." S.D.G.'s parents also brought E.G. to 

Massachusetts to spend time with S.D.G. for a few weekends.

On February 20, 2015, plaintiffs filed the adoption 

complaint. The complaint contained allegations that since the 

child's birth, plaintiffs had provided significant care and 

financial support for her and defendants had not "substantially 

provided care[] for the child independently." It also alleged 

that defendant S.D.G. abandoned E.G. and was not reasonably likely 

to be able to care for her because of mental health and alcohol 

abuse issues. The complaint additionally contained allegations 

that R.C.N.-B. had abandoned E.G.

On March 6, 2015, the trial court entered an order for a 

preliminary and final hearing, and granted plaintiffs temporary 

custody of E.G., pending the hearings. E.G. was declared a ward 

of the court and the order permitted plaintiffs to take her to 

their home in New York. According to R.C.N.-B., after he received 

the order on March 12, 2015, he was involved in a verbal 

altercation with his mother, K.N., which led K.N. to throw him out 

of the Woodstock residence. R.C.N.-B. and S.D.G. attempted to 

retrieve E.G., but the New York State Police informed them that 

plaintiffs would have them arrested if they entered the property.

On March 18, 2015, defendants filed an ex parte order to show 

cause seeking to: (1) vacate the March 6, 2015 order; (2) dismiss 
5 A-1446-16T3

the Verified Complaint with prejudice; and (3) regain custody of 

E.G.

On March 19, 2015, the trial court held an ex parte hearing 

on the order to show cause. S.D.G. and R.C.N.-B. both testified 

at the hearing; both stated that they did not abandon E.G. and did 

not consent to plaintiffs' attempt to adopt their child. The 

trial court considered both of them credible, and concluded 

plaintiffs did not have standing. The court dismissed the adoption 

complaint, vacated the order of temporary custody to plaintiffs 

and returned legal and physical custody of E.G. back to S.D.G. and 

R.C.N.-B.

Plaintiffs appealed and on January 29, 2016, we issued a 

published opinion, In Re Adoption of Child ex rel. M.E.B., 444 

N.J. Super. 83, 94 (App. Div. 2016), reversing the trial court's 

order dismissing plaintiffs' complaint based on the ex parte nature 

of the proceedings and remanded to a different judge. 

On remand, defendants filed a motion to dismiss the adoption 

complaint for lack of subject matter jurisdiction and standing. 

On August 3, 2016, the trial court dismissed plaintiffs' complaint 

for lack of subject matter jurisdiction and awarded defendants 

attorney's fees and costs solely for the adoption action. In its 

statement of reasons, the trial court explained that because

plaintiffs were not New Jersey residents and did not receive the 
6 A-1446-16T3

child from an approved agency, the court lacked subject matter 

jurisdiction over the action. The court based this conclusion on 

New Jersey case law, stating that "the test for subject-matter

jurisdiction under the [Adoption Act] for nonresident plaintiffs 

is that they must have received the child from an approved agency." 

N.J.S.A. 9:3-42.

In its statement of reasons, the trial court also addressed 

defendants' request for counsel fees and costs. The court awarded 

counsel fees and costs to defendants and focused on their few

financial resources compared to plaintiffs. The court also noted 

that plaintiffs filed this action in a court without subject matter 

jurisdiction and therefore "forced [S.D.G.] to defend her 

constitutional rights in this forum unnecessarily." The court 

ordered defendants to provide an affidavit of services before 

awarding an exact dollar amount of fees.

On August 31, 2016, defendants filed a certification of 

services requesting fees of $115,133.59 relating solely to the 

adoption action. On November 2, 2016, the trial court issued an 

amended order and Statement of Reasons granting reasonable 

attorney's fees and costs of $67,079.19. The court referenced the 

August 3, 2016 order in which it found the following two issues 

most compelling: "the financial resources available to both 

parties, and the procedural outcome of the matter." The court 
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reasoned that defendants could not afford their own legal 

representation without depending on their parents and were forced 

to defend their constitutional right to remain parents to their 

child. The court also "found the case was unreasonably advanced" 

and believed plaintiffs acted in bad faith because they knew E.G. 

was not available for adoption. For these reasons, the court 

awarded attorney's fees to defendants for the reduced amount of 

$67,079.19.

II.

On July 27, 2015, before their adoption complaint was 

dismissed, having not visited with E.G. for more than a year,

plaintiffs filed a complaint seeking visitation. The complaint 

alleged that plaintiffs were the primary caretakers of their 

grandchild until defendants "abruptly denied [p]laintiffs any 

contact" with her. On September 29, 2015, defendants filed a 

counterclaim seeking dismissal of the visitation action and 

requesting an award of attorney's fees. On March 11, 2016, the 

trial court denied without prejudice defendants' motion to dismiss 

the visitation complaint and plaintiffs' cross-motion for 

preliminary visitation.

On August 31, 2016, plaintiffs filed a motion to voluntarily 

dismiss the visitation action with prejudice and without costs or 

fees to either party. Defendants filed a cross-motion to dismiss 
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the visitation action with prejudice and award reasonable 

attorney's fees, submitting a certification of services seeking 

$45,963.36 in attorney's fees.

The trial court awarded defendants $15,118.61 in attorney's 

fees related to the visitation action. The court stated:

The reasons for granting counsel fees in 

connection with the [g]randparent 

[v]isitation [c]omplaint are substantially 

the same as those stated regarding the 

granting of attorney's fee[s] in the adoption 

matter. The [c]ourt also notes that a consent 

for dismissal would appear to have been a much 

more cost effective plan for ending this 

grandparent visitation matter rather than 

going through the trouble of a formal motion 

with briefs. [Defendants have] clearly 

demonstrated through this arduous proceeding 

that [they] would have acquiesced in 

dismissing this matter. 

On January 4, 2017, the court submitted an amplification of 

reasons as to the visitation action pursuant to Rule 2:5-1(b).

The court stated it was "extremely unlikely that [plaintiffs] 

would have been able to satisfy the burden of proving that 

visitation is necessary to avoid harm to the child."

Plaintiffs contend that the court erred in awarding fees for 

the visitation action because it "improperly imputed the 

[plaintiffs'] alleged bad faith in the adoption action to the 

visitation action." According to plaintiffs, there was no evidence 
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of bad faith in the filing of the visitation action as evidenced 

by their decision to voluntarily dismiss the action.

Defendants ask this court to focus solely on the award of 

attorney's fees in the visitation action and the amount of fees 

in both actions. Defendants contend that the trial court properly 

recited all the necessary factors that a court should consider in 

a fee application and correctly applied the factors to their 

situation. They argue that plaintiffs' argument that they relied 

on their counsel's judgment regarding the existence of subject 

matter jurisdiction does not negate the fact that they "pursued 

litigation in bad faith and based on false representations." 

Defendants point to the fact that plaintiffs obtained custody of 

E.G. ex parte through the court, and then pushed R.C.N.-B. out of 

their house when they served him with the order that granted them 

custody.

III.

In reviewing the grant or denial of a counsel fee award, we

accord significant deference to the trial judge's determinations. 

McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007). 

A trial judge's "fee determinations . . . will be disturbed only 

on the rarest of occasions, and then only because of a clear abuse 

of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 

444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). 
10 A-1446-16T3

Appellate courts must intervene when a trial judge's determination 

of fees is based on "irrelevant or inappropriate factors, or 

amounts to a clear error in judgment" and is "not premised upon 

consideration of all relevant factors." Masone v. Levine, 382 

N.J. Super. 181, 193 (App. Div. 2005) (citing Flagg v. Essex Cty. 

Prosecutor, 171 N.J. 561, 571 (2002)).

Pursuant to Rule 5:3-5(c), courts are permitted to award 

attorney's fees in family actions. See R. 4:42-9(a). We accord 

deference to the family courts because of their "special 

jurisdiction and expertise in family matters." Cesare v. Cesare, 

154 N.J. 394, 413 (1998).

Rule 5:3-5(c) sets forth nine factors courts must consider 

in determining a fee allowance:

(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) 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); see also Mani v. Mani, 183 

N.J. 70, 94-95 (2005).]

Courts should 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 the services rendered; and 

the reasonableness of the fees." Mani, 183 N.J. at 94-95. Courts 

do not need to enumerate every factor in reaching their

determination. Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div. 

2013). However, a counsel fee award that is not supported by 

adequate findings must be set aside. See Gordon v. Rozenwald, 380 

N.J. Super. 55, 79 (App. Div. 2005). 

"Fees in family actions are normally awarded to permit parties 

with unequal financial positions to litigate (in good faith) on 

an equal footing." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. 

Div. 2012) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. 

Div. 1992)). "[B]ad faith for counsel fee purposes relates only 

to the conduct of the litigation . . . ." Mani, 183 N.J. at 95.
12 A-1446-16T3

IV.

We affirm the grant of counsel fees in both actions 

substantially for the reasons set forth in Judge Louis S. Sceusi's 

initial and amplified reasons set forth on August 3 and November 

2, 2016, and January 4, 2017. We add only the following. 

Plaintiffs make the point on appeal that they sought guidance 

about jurisdiction ex parte by letter from the County Surrogate 

prior to filing the adoption complaint. The ex parte nature of 

that request minimizes its utility, as the facts set forth in the 

complaint were disputed by the parents. Plaintiffs also contend

that it was defendants who prolonged the dismissal of the 

visitation complaint by seeking counsel fees. The fact defendants 

sought counsel fees is not an appropriate defense to starting 

litigation that was unlikely to succeed.

Judge Sceusi was familiar with this litigation and had the 

expertise to determine whether plaintiffs litigated merely with 

the common ranker frequently evidenced in family matters, or with 

an unfair and unrealistic determination to "save" their 

granddaughter from her own parents. New Jersey has long accepted 

that termination of parental rights followed by adoption is not a 

method to provide children with a "better" home. In re Adoption 

of Child by J.E.V., 442 N.J. Super. 472, 485-86 (App. Div. 2015). 
13 A-1446-16T3

As Judge Sceusi stated, if plaintiffs were concerned about 

the safety of their granddaughter in the care of her parents, the 

proper avenue was to call the child protective services agency. 

The courts are infrequently helpful in resolving intergenerational 

conflict. And they are extremely costly. The counsel fees 

awarded, only a portion of what was incurred by the parties, was 

undoubtedly an unfortunate burden on plaintiffs, who reaped no 

benefit from this misguided litigation.

Affirmed.