DENISE CARUSO v. RONALD CARUSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1380-05T31380-05T3

DENISE CARUSO,

Plaintiff-Respondent,

v.

RONALD CARUSO,

Defendant-Respondent,

_____________________________

IN THE MATTER OF THE ESTATE

OF JAMES LEACH

______________________________

 

Argued September 18, 2006 - Decided October 2, 2006

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-841-05H; 2855876.

Alan G. Cosner, argued the cause for appellant Cosner & Cosner (Cosner & Cosner, attorneys; Alan G. Cosner, on the brief).

Denise Caruso, respondent, argued the cause pro se.

Richard H. Kotkin argued the cause for respondent Ronald Caruso.

E. Martin Davidoff, Guardian Ad Litem, argued the cause for the Estate of James Leach.

PER CURIAM

This is a dispute over attorney fees in which Alan Cosner, Esq., appeals from a trial court order denying his fee application for representing Denise Caruso in a probate action. Because the record is unclear and the trial judge denied the application without making findings of fact or conclusions of law, we remand this matter to the trial court for reconsideration and issuance of a decision supported by a statement of reasons.

I

The case began as a divorce action between Ronald Caruso II and his wife Denise Caruso. After the divorce was filed, Denise, represented by Alan Cosner, Esq., filed a probate action in January 2005, in which she accused Ronald of mismanaging the estate of James Leach. Under Leach's will, Ronald was the executor and also the trustee of a testamentary trust for the couple's son. Both parties to the probate action accused each other of misappropriating funds intended for their son.

The probate and divorce actions were consolidated in February 2005, and by order dated June 10, 2005, the judge assigned to the consolidated case removed Ronald as executor and trustee and appointed E. Martin Davidoff, Esq. in his stead.

Cosner, who represented Denise in both parts of the consolidated action, moved to be relieved as counsel in the probate case and sought an award of fees to be paid from the son's trust. His claim was premised on his having created or preserved a fund in court, i.e., the trust. He contended that he filed the probate complaint on Denise's behalf for the benefit of her son, and that due to his efforts significant assets had been returned to the trust. Although he copied Denise on his motion, the record does not reflect that Denise filed any opposition to the motion with the trial judge.

Ronald's counsel, Richard Kotkin, Esq., and Davidoff both opposed the motion, contending that Denise should pay Cosner's fees. Davidoff raised allegations that Denise may have used her son's funds to pay Cosner's $10,000 fee for the divorce action. Kotkin contended that Denise used additional funds from the trust for her own purposes. They also objected that the fee application was insufficiently specific.

At the oral argument of the motion, the judge indicated that he would release Cosner from representing Denise in the probate action. But he stated that he would deny the fee application without prejudice subject to submission by the parties of further information concerning the amount of money in the estate, including "whether there is a surplus or a shortage." By order dated September 13, 2005, the judge denied Cosner's motion for counsel fees without prejudice, specifically noting that "[h]e may renew any application for fees after the Estate has been settled and an accounting is ready for acceptance by the court."

The divorce action, in which Cosner represented Denise, was settled on September 13, 2005, although the settlement was not memorialized in a dual judgment of divorce until November 10, 2005. The November 10 judgment granted to both counsel "attorneys' liens against the assets left in the marital estate." The judgment also recited that "[t]he parties recognize and acknowledge that any and all . . . claims for payment of attorneys' fees or credits for payments that have been made are subject to an ultimate determination in the matter of the Estate of James T. Leach."

Instead of waiting for the Estate to be settled and/or an accounting to be prepared, on September 23, 2005, Cosner filed a motion for reconsideration of the September 13, 2005 order denying his fee application. In the certification in support of his motion, however, Cosner indicated that he believed the return date of his motion might coincide with "certain dates . . . set up to allow the parties [to the Estate dispute] to resolve some of their issues." Again, Davidoff and Kotkin filed opposition to the motion. Denise did not.

There was no oral argument on the reconsideration motion. On November 4, 2005, the judge denied the motion, without making findings of fact or conclusions of law or otherwise providing a statement of reasons.

II

On this appeal, Cosner contends that he is entitled to a fee award payable from the trust, because his representation of Denise in the probate action resulted in the creation or preservation of the trust. Alternatively, he contends that the trial judge made it impossible for Denise to pay him, by taking $100,000 in equity from the sale of the marital home and ordering that it be placed in the trust. And he argues that the judge should have held a hearing and made findings with respect to whether Denise was at fault, before taking marital assets and placing them in the son's trust.

Denise filed a pro se letter brief, contending that Cosner did a poor job of representing her and does not deserve a fee for the probate case. As noted above, she did not raise this issue in the trial court. Ronald and the guardian ad litem filed opposition, contending that Cosner's actions did not benefit the trust and that Denise should pay him. They also raise allegations of misfeasance by Denise and/or Ronald that are not supported by evidence of record on this appeal.

It is abundantly clear from what the parties have provided in their appellate submissions that the trial judge had a much more complete picture of this entire controversy than has been presented to us. Yet most of that is not properly before us, and we do not know what facts the judge considered, because he did not provide any statement of reasons for his decision denying the reconsideration motion. See R. 1:6-2(f). We also do not know whether the trial judge now has sufficient financial information in the estate matter to enable him to consider a fee application.

We also note two additional issues. Cosner does not have standing to appeal from the trial judge's order allocating marital assets to the trust, because he is not a party to the divorce action or the probate action. See Fasching v. Kallinger, 211 N.J. Super. 26, 45 (App. Div. 1986). Moreover, because Denise Caruso is now opposing Cosner's fee application, there is an additional issue as to whether he has standing to pursue his fee claim against the trust. We will not consider Denise's contentions, however, because they were not raised before the trial judge. We also intimate no view as to the standing issue her position may create, beyond noting that the trial judge should consider it on remand.

We remand this matter to the trial judge for reconsideration and issuance of a decision, which shall be supported by a statement of reasons. In the judge's discretion, Cosner and the parties to the probate action, including Denise, may be permitted to make additional submissions and, in the trial judge's discretion, oral argument may be permitted. Given the time and expense associated with this litigation, the parties may wish, or the judge may require, that a settlement conference be conducted on an expedited basis. All proceedings on remand shall be completed within ninety days.

Remanded.

 

Because the parties have the same last name, to avoid confusion we will refer to them as Ronald and Denise.

At oral argument, all counsel conceded that the estate is not yet settled and that the order from which Cosner is appealing is interlocutory. Since no party raised this issue, we have nonetheless determined to hear this matter as though a proper motion for leave to appeal had been filed.

(continued)

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7

A-1380-05T3

 

October 2, 2006