SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A

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- 20 IN THE MATTER OF J .R. , AN ALLEGED INCAPACITATED PERSON

____________________________

Argued January 5, 2022

– Decided January 14 , 2022 Before Judges Whipple, Geiger , and Susswein. On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. 26 8286. Lisa Steirman Harvey argued the cause for appellant S .R. (The Goldstein Law Group, attorneys; Lisa Steirman Harvey and Justin LaPiana, of counsel and on the briefs). Lawrence D. Eichen argued the cause for respondent D .R. PER CURIAM In this guard ianship action involving the parties' son, J .R. (Jerry) , who has special needs, a ppellant S .R. (Sam) appeals from Probate Part orders NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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.A

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- 20 2 awarding $26,332 in attorneys' fees and costs to respondent D .R. (Dana) and entering judgment against appellant in that am ount. 1 We affirm. To provide necessary context, we summarize the parties' marital history and pertinent Family Part proceedings. The parties married in 1992. Following a complicated pregnancy, Jared was born in 2000. At age three, Jared was diagnosed with pervasive developmental disorder, and shortly thereafter, autism. The parties divorced in 2008. The divorce judgment incorporated the terms of the parties' P roperty S ettlement A greement (PSA). The PSA provided that the parties would share joint legal custody of J erry , with Da na being parent of primary residence. The parties "agree[d] to consult on all major issues concerning [Jared] including, but no[t] limited to, his health, schooling, and religious upbringing" and would "make every effort to come to mutually agreed upon deci sions concerning [J erry ]." Following their divorce, the parties engaged in contentious custody and parenting time motion practice. In April 2010, a Family Part judge ordered a modification of S am's motion to modify his parenting time and to restrain Da n a from interfering with S am 's parenting time with J erry . The judge also

1 Certain records in this matter are excluded from public access pursuant to Rules 4:86

- 1 and 1:38

- 3(e). Because appellant , respondent , and their son share the same surname . We use initials and pseudonyms to protect the confidentiality of the parties and t heir son.A

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- 20 3 granted Da na 's cross

- motion to compel S am "to cease any harassing telephone calls and to restrain from verbal abuse

. . . ." In June 2015, a Family Part judge denied S am 's motion fo r custody of Jared. The judge recognized, however, that Da na was "clear ly interfering with [S am 's] ability to exercise parenting time with [J erry ]" but did not "believe that it [was] in Jared's best interests to be moved from [Da n a's] home at this time" b ecause J erry had been living with [her] since the 2008 divorce and was "in a self

- contained class at school" due to his disability. The judge granted S am 's request that Da n a "cease all efforts to further alienate J erry from his father," and if she failed to do so he would "consider imposing sanctions on her." The judge awarded attorneys' fees and costs to S am . In July 2017, a Family Part judge denied S am 's motion to immediately award him physical custody of J erry and ordered that a plenary hearing be he ld. The judge noted Da n a's "history of alienation" and the troubled history between the parties

. In addition, the judge granted S am 's request for a best

interest investigation as to J erry 's custody and parenting time and ordered the parties to participat e in a custody and parenting

- time evaluation by William D. Campagna, Ph.D. Thereafter, a February 2018 consent order required Dr. Campagna to include a recommendation as to the guardianship of J erry . Dr. Campagna "recommended that [S am ] be appointed J erry' s Legal GuardianA

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- 20 4 going forward" because "he is eminently more likely to be willing to co

- parent with [Da n a], share the parenting time with her, and possibly be more promoting of appropriate independence once J erry finishes school at age [tw enty

- one]." In June 2019, the parties agreed to another consent order (the Consent Order) that neither party would be J erry 's parent of primary residence but that both would have equal access to J erry 's school records, medical records, and activity sched ules. The order also stated that the parties agreed not to impede each other's parenting and agreed to work out changes to the parenting schedule as needed. The order did not mention the issue of guardianship. S am filed this guardianship action in Febr uary 2020, seeking sole, general guardianship of J erry . Attached to the verified complaint was the certification and psychological evaluation report of Nicole J. Livingston, Ph.D., a psychologist, who diagnosed J erry with mild intellectual disability and obsessive

- compulsive disorder. Dr. Livingston noted that J erry 's full

- scale IQ was fifty

- five, his overall adaptive age was nine years and four months, and he functioned in the mildly intellectually disabled range. Dr. Livingston opined that J erry "lacks the cognitive capacity to make decisions for himself, manage his affairs, or govern himself, and requires the appointment of a general guardian to safeguard his best interests in all areas." According to Dr.A

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- 20 5 Livingston, limited guardianship would not be appropriate. Counsel was appointed to represent J erry in the guardianship action. In June 2020, Da n a moved to dismiss S am 's application for sole guardianship and requested the court to appoint the parties as co

- guardians with the assistance of a parenta l coordinator. S am opposed appointment of co

guardians. Counsel for J erry agreed with Dr. Livingston that guardianship was appropriate and did not oppose S am serving as J erry 's guardian but took no position on the issue of co

- guardianship. In July 2020 , the Probate Part judge appointed Elise C. Landry, J.D., Ph.D. to interview Jared to assist the court in deciding the guardianship. Two months later, J erry 's counsel submitted a certification explain ing that during a meeting in mid

- August, J erry indicate d several times that he wanted Da na to serve as his sole guardian. During another meeting in late August, J erry reiterated that he wanted Da n a to serve as his sole guardian. This newly expressed clear preference represented a distinct change from his pri or position. Upon learning of J erry 's change in preference, S am withdrew his complaint for sole guardianship during a September 2020 hearing. Da na 's counsel informed the court he was "seeking reimbursement of all counsel fees because [Da n a] has been dra gged into this litigation and here you have aA

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- 20 6 simple interview with J erry that says what his preference is." Da n a's counsel noted that Da n a was unemployed and this "wasted litigation . . . cost her a tremendous amount of money [that] she does not have." S am 's counsel noted that no one disputed that J erry needed a guardian to be appointed and S am went forward with the action because Da n a sat back and did nothing about it. Counsel contended that Da na 's certification "was filled with lies" as were her prio r allegations of sexual abuse she made against S am . Counsel argued that if anyone is awarded counsel fees, it should be S am . Counsel then indicated that each party should be responsible for their own counsel fees. The Probate Part judge indicated that he did not "really want to argue the history of the case." He also acknowledged that he did not "really know that much abou t this particular case, but from [his] experience, as difficult as this case has been between the parties, [he] still [thought] that it would be better to have co

- guardianships . . . with a parental coordinator." The judge instructed both parties to submi t certifications regarding the counsel fee issue. Both parties' counsel did so. Da n a's counsel's certification stated that his billable rate was $350 per hour

. Counsel stated he was admitted to practice in 1991 and had focused on litigation his entire career. Da n a's legal fees totaled $25,265 (72.2 hours atA

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- 20 7 $350 per hour) and $192 in costs, of which, Da n a had paid $18,703.10, leaving an outstanding balance of $7,568.90. Counsel estimated that an additional 2.5 hours would be expended. Counsel certif

ied that the services rendered, including submissions to the court and preparing for and attending multiple telephonic court appearances, were necessary due to the disagreement of the parents and S am 's violation of the C onsent O rder and PSA. He further ce rtified that "[t]he fee charged is customarily charged in this locality for similar legal services performed by attorneys with similar qualifications." Attached to his certification were itemized billing statements, setting forth the services rendered, da te performed, amount of time expended in tenths of an hour, and the costs incurred. S am 's counsel submitted a letter brief opposing the fee request. Counsel contended that S am 's complaint was filed in good faith and in light of the contentious matrimoni al proceedings and unreasonable positions adopted by Da na previously. She also discussed Da n a's employment potential and the fact that SSDI benefits would help support J erry . S am submitted an opposing certification. Among other things, it noted that Da n a had a bachelor's degree in elementary education and was a certified paralegal. It further noted that his legal fees for the guardianship action totaled $9 , 980.50. S am did not contend the hourly rate charged by Da n a's counsel was unreasonable. Nor did t heA

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- 20 8 opposing papers object to any specific services performed as unnecessary or to any specific time entries for those services. T he judge granted Da n a sole guardianship of Jared and awarded her $26,332 in counsel fees. A January 12, 2021 order embodied the court's decision. A February 4, 2021 order entered judgment against S am for $26,332. This appeal followed. S am raises the following points for our consideration: POINT I THE [PROBATE PART] ERRED IN AWARDING COUNSEL FEES AND ENTERING JUDGMENT AG AINST [S AM ] BASED ON A FINDING OF BAD FAITH SINCE [S AM ] ACTED IN GOOD FAITH IN FILING FOR GUARDIANSHIP AND ACTED IN GOOD FAITH THROUGHOUT THE PROCEEDINGS. a. [S am 's] Application For Guardianship Was Made in Good Faith and Was Not In Violation of the Parties' Consent Order or the Parties' [PSA] that Granted Them Joint Custody. b. [S am 's] Objection to [Da na ] and He Sharing Co

- Guardianship of Their Son Was Made in Good Faith Based o n [S am 's] Historical Parental Alienation and Interference with His Parenting Time. c. [S am 's] Acquiescence To [Da n a] Having Sole Guardianship After It Was Determined that Their Son Voiced An Opinion That He Preferred For [Da n a] to Have Sole Guardianshi p Was Made in Good Faith.A

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- 20 9 POINT II THE [PROBATE PART] ERRED IN AWARDING COUNSEL FEES AND ENTERING JUDGMENT AGAINST [S AM ] IN THE ABSENCE OF AN APPROPRIATE EXAMINATION OF EACH PARTY'S ABILITY TO PAY COUNSEL FEES. POINT III THE [PROBATE PART] ERRED IN AWARDING COUNSEL FEES AND ENTERING JUDGMENT AGAINST [S AM ] SINCE [DA N A'S] LEGAL FEES WERE NOT REASONABLE. New Jersey fol lows the so

- called American rule as to attorneys' fees. In re Est. of Folcher , 224 N.J. 496, 506

- 07 (2016). Litigants are responsible for their own counsel fees absent a statutory, court rule, contractual, or court sanctioned basis for the award of fees to a prevailing party. Ibid. (citing R. 4:42

- 9(a ) ); see also In re DiNoia , 464 N.J. Super. 562, 56 7

- 6 8 (App. Div. 2019) (same), certif. denied , 241 N.J. 218 (2020). One such exception is in guardianship actions. "In a guardianship action, the court may allow a fee in accordance with [ Rule ] 4:86

- 4 (e) to the attorney for the party seeking guardianship. . . ." R. 4:42

- 9(a)(3). In turn, Rule 4:86

- 4 (e) provides that "compensation of the attorney for the party seeking guardianship . . . may be fixed by the c ourt to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct."A

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- 20 10 Because Da n a responded to S am 's complaint for sole guardianship by opposing S am 's application for sole

- guardianship and by seeking c o guardianship, Da n a's counsel qualifies as an "attorney for the party seeking guardianship" under Rule 4:86

- 4. Thus, an award of counsel fees to Da n a was authorized by court rule. DiNoia , 464 N.J. Super. at 5 67

- 68 . Nevertheless, counsel fees are bounded by the RPC 1.5(a), which requires that the fee award is reasonable. Furst v. Einstein Moomjy, Inc. , 182 N.J. 1, 21

- 2 3 (2004). RPC 1.5(a) sets forth the following factors for determining whether a counsel fee

awar d is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular e mployment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services;A

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- 20 11 (8) whether the fee is fixed or contingent. In analyzing the counsel fee issue, t he Probate Part judge relied heavily

on Williams v. Williams , 59 N.J. 229 (1971), but recognized it was a matrimonial counsel fee decision. In Williams , the Court considered each party's ability to pay and their good or bad faith. 59 N.J. at 233

- 34. The judge applied Williams and engaged in the following reasoning:

In this case, [the parties] had been involved in litigation in [the] Family [Part], which was resolved in June 2019 by C onsent O rder and [PSA]. The C onsent O rder and PSA provide for equal co

- parenting time[] and required the parties to consult on all major issues concerning [J erry ]. Notwithstanding the provisions of the C onsent O rder and PSA, [S am ] filed a motion for sole guardianship without consultation wit h [Da n a]. By motion in June 2020, [Da n a] moved to have both parents appointed as co

- guardians. Ultimately, by order dated December 2, 2020, the court awarded sole guardianship over the person of [J erry ] to [Da n a]. This was a result of the father withdra wing his motion for sole guardianship. [Da n a's counsel], during this litigation, wrote and filed a responsive pleading, a motion for co

guardianship, certifications, letter briefs, oppositions, and various correspondence; prepared for and attended oral ar guments and conferences via telephone; and counseled his client. The work, which resulted in [Da n a] being awarded sole guardianship, required 72.2 hours of legal time, itemized in billing statements provided to the court. [Da n a's counsel] certifies the m atter did not preclude him from taking other cases, that the client did not impose time limitations, that there had been no prior professional relationship between [Da n a's counsel] and [ Dana ], and that theA

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- 20 12 parties agreed legal fees would be calculated at a n hourly rate. [D ana's counsel] has been practicing law since 1991, and charged $350 per hour for his services. Based on [counsel's] certification, the court's own review of the legal findings, and the complicated nature of this case, the court finds [Da n a's counsel's] fee is "reasonable" under R.P.C. 1.5(a). Moreover, the Williams factors favor awarding attorneys' fees to [Da na ]. In response to [S am 's] application for sole guardianship, and despite any frustration she may have felt dealing with additio nal litigation after having worked out the C onsent O rder and PSA less than a year prior, [Da n a] demonstrated her good faith by filing a motion seeking co

guardianship. Moreover, the parties have different abilities to pay. [ S am] is an aeronautical engine er, in which capacity he has been employed for a quarter century. He earns a six

- figure salary. [Da n a], by contrast, is currently unemployed, had formerly worked as a substitute teacher, and has taken on substantial credit card debt to pay her legal fees

. Thus, the Williams factors favor awarding [Da n a] attorney['s] fees. See [ Williams , 59 N.J. at 233

- 34]. 2 Based on these findings, the judge awarded Da n a counsel fees of $26,332, which actually consisted of $25,265 in fees already incurred, $192 in costs, and $875 of additional anticipated services (2

. 5 hours billed at $350 per hour). S am makes three overarching arguments: (1) the court erred because Da n a's legal fees were unreasonable; (2) the court e rred in finding bad faith; and (3) the court erred considering each party's ability to pay counsel fees.

2 The judge's oral opinion, which his written opinion memorializes, contains nearly identical language.A

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- 20 13 In cases where, as here, counsel fees are permitted, "a reviewing court will disturb a trial court's award of counsel fees 'only on the rarest of

oc casions, and then only because of a clear abuse of discretion.'" Litton Indus., Inc. v. IMO Indus., Inc. , 200 N.J. 372, 386 (2009) (quoting Packard

Bamberger & Co. v. Collier , 167 N.J. 427, 444 (2001)). When counsel fees are expressly authorized, the Pr obate Part "calculates the award of counsel fees by determining the 'lodestar,' i.e.[,] a reasonable hourly charge multiplied by the number of hours expended." In re Probate of Will & Codicil of Macool , 416 N.J. Super. 298, 31 2

- 1 3 (App. Div. 2010) (applyi ng these principles where, as here, counsel fees were authorized under Rule 4:42

- 9(a)(3)). In doing so, the Probate Part "should compare the hourly rate of the attorney to the rates charged for similar services of attorneys in the community with 'comparab le skill, experience, and reputation'" and should "determine reasonable hourly billing rates that are 'fair, realistic, and accurate.'" Id. at 313

- 14 (quoting Rendine v. Pantzer , 141 N.J. 292, 334

- 35 (1995)). If the Probate Part sharply deviates from this standard, such as by "impos[ing] [its] own policy considerations to arbitrarily reduce a litigant's otherwise legally justifiable application," then such would constitute an abuse of discretion. Macool , 416 N.J. Super. at 314 (holding that an arbitraryA

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- 20 14 r eduction of a counsel fee award based on a personal view that fee

- shifting should be discouraged was inappropriate when calculating the lodestar). Sam argues that the award of counsel fees was unreasonable because the judge failed to adequately examine t he billing records of Da n a's counsel before directing that all of her counsel fees be paid by S am . In support of his argument, counsel relied on Yueh v. Yueh , 329 N.J. Super. 447 , 461

- 62 (App. Div. 2000), for the proposition that the trial court must "exa mine and perform a thorough analysis of the reasonableness of the fee request before issuing an award. " S am further contends that by filing the verified complaint, he had done most of the work in this litigation. Moreover, he asserts that by later withd rawing the verified complaint, he was the one who had enabled defendant to obtain guardianship

— thus, defendant's favorable outcome was not the product of her counsel's work. This, according to S am , rendered inexplicable Da na's counsel charging almost thre e times the amount of fees charged by his counsel. Applying our deferential standard of review of counsel fee awards, we discern no clear abuse of discretion. Da n a's counsel provided the relevant information regarding his hourly billing rate, his quali fications and expertise, the expenditures he had incurred while representing defendant, and the hoursA

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- 20 15 he had worked on defendant's case. The judge found both the hourly rate and time expended reasonable given the complexity of the matter. He noted that

c ounsel had been practicing law since 1991. S am did not object to the hourly rate charged. This case is not among the "rarest of occasions" that would warrant reversal of the counsel

- fee award, especially given the analysis that the Probate Part conducted

. See Litton , 200 N.J. at 386. Nor do we view the consideration of the parties' respective ability to pay counsel fees as legal

error. We next address the issues of bad faith and consideration of ability to pay. S am argues that a finding of bad faith against a party requires that party to have intentionally misrepresented facts and law because of a malicious motivation. S am argues he acted with no such malice. He contends that unilaterally filing the guardianship action did not violate the PSA, whic h requires the parties to "make every effort to come to mutually agreed upon decisions concerning [Jared]," because the parties were unable to agree on what was best for Jared. S am claims the judge erred in finding bad faith by failing to consider the

n ature of the parties' post

- divorce Family Part proceedings and other pertinent facts that justified his unilateral filing of the guardianship action, including: (1) Dr. Campagna's recommendation that S am be J erry 's guardian becauseA

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- 20 16 Da n a had continuously disrupted co

- parenting efforts; (2) the Family Part determination that Da n a had interfered with S am 's parenting time, including making false sexual abuse allegations; (3) S am 's agreement to the C onsent O rder, signifying his attempt to continue working with Da n a to co

- parent according to J erry 's best interests, despite Da n a's repeated interference; and (4) S am 's prompt withdrawal of his application upon learning of J erry 's newly expressed preference that Da n a be his sole guardian,. In response, Da n a argues that S am acted in bad faith by unilaterally filing the guardianship action in violation of the PSA and C onsent O rder, which did not permit such unilateral filings. Da n a views the filing of the complaint as part of S am 's "regular routine of co mmencing litigation" due to his animosity towards her, which justified the finding of bad faith under Williams

. Regarding ability to pay, S am argues that the Probate Part erroneously failed to examine Da n a's earning potential and her assets. Citing nume rous matrimonial cases, S am contends that the Probate Part should have looked more closely at Da n a's earning potential before awarding counsel fees. Yet in his reply brief, S am contends that the Probate Part's emphasis on the parties' ability to pay was m isguided because "[t]his is not a matrimonial case and, while not necessarily totally irrelevant, the parties' respective ability to pay isA

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- 20 17 at most a minor consideration in the guardianship context." S am further contends that the Probate Part is not bound by the Family Part C onsent O rder. In Williams , the Court focused on two factors in its review of a counsel fee award in a matrimonial action under Rule 4:42

- 9(a)(1), stating that "[i]n deciding whether a wife is entitled to counsel fees and costs, our c ourts focus on several factors, including the wife's need, the husband's financial ability to pay and the wife's good faith in instituting or defending the action." 59 N.J. at 233. Both parties cited Williams on appeal. Here, of course, we are reviewing a counsel fee award in a probate action. We find no published opinions citing Williams in a probate action. While bad faith and the ability to pay are not elements or factors necessary for awarding probate

- counsel fees under Rule 4:42

- 9(a)(3), the subst ance of the parties' arguments on these two issues could, to some extent, inform the reasonableness of the counsel fee award, a requirement under RPC 1.5(a) and incorporated by Rule 4:42

- 9(b). S am 's bad faith argument relies largely on the history of the parties' proceedings in the Family Part. He essentially contends that Da n a's wrongful conduct in those proceedings allowed him to sidestep the PSA and C onsent O rder. Notably, however, the C onsent O rder , which signified plaintiff's agreement to continue working with defendant in accordance with J erry 's best interests, was entered after these disputes in the Family Part had occurred.A

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- 20 18 More relevant here was S am 's decision to file the guardianship action without complying with the PSA and C onsent O rder, despite the obvious impact that awarding him sole guardianship of J erry would have on the custody and parenting time aspects of the PSA and C onsent O rder. The co urt did not abuse its discretion by considering that conduct. As we have noted, S am 's ability

- to

- pay argument, which relies heavily on matrimonial cases and asserts that the Probate Part should have more closely examined Dana 's assets and earning potenti al, is undercut by his own acknowledgement that "[t]his is not a matrimonial case" and "while not necessarily totally irrelevant, the parties' respective ability to pay is at most a minor consideration in the guardianship context." After J erry expressed his clear preference for Da n a to be appointed as his sole guardian, S am withdrew his guardianship application and Da n a prevailed on her application to be appointed as J erry 's general guardian. Rule 4:86

- 4(e) "makes clear that the attorney for a party seek ing appointment of a guardian for an alleged [incapacitated person] is entitled to an attorney 's fee award." Pressler & Verniero, Current N.J. Court Rules , cmt. on R. 4:86

- 4(e) ; cmt. 2.3 on R. 4:42

- 9(a) (2022). The court's finding that the attorneys' fee s sought by Da n a's counsel were reasonable is supported by the record. Notably, S am did not object to the hourly rate charged by Da n a's counsel. Nor did heA

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- 20 19 claim that any specific services performed were unnecessary or that the time expended for any spec ific work performed was overstated. In sum, our careful review of the record convinces us that the fee award was not unreasonable, contrary to applicable legal principles, or a clear abuse of discretion. Accordingly, we discern no basis to disturb the f ee award. Affirmed.