PATTI CAINE v. WILLIAM MEISTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0186-05T50186-05T5

PATTI CAINE,

Plaintiff-Appellant/

Cross-Respondent,

v.

WILLIAM MEISTER,

Defendant-Respondent/

Cross-Respondent.

________________________________

 

Submitted: December 12, 2006 - Decided January 4, 2007

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, FM-12-2213-00G.

Pellettieri, Rabstein & Altman, attorneys for appellant/cross-respondent Patti Caine (John A. Hartmann, III, of counsel; Mr. Hartmann and Nicole J. Huckerby, on the brief).

Borrus, Goldin, Foley, Vignuolo, Hyman, Stahl, attorneys for cross-appellant court-appointed attorney for minor children of the parties (Eileen M. Foley, on the brief).

Respondent/cross-respondent William Meister did not file a brief.

PER CURIAM

Plaintiff Patti Caine appeals from an August 5, 2005 order entered by the Family Part requiring her to pay an additional counsel fee to Eileen Foley, the court-appointed attorney for the parties' two minor children, for services rendered on the motion to compel payment of her fee and denying plaintiff's cross-motion to bar Foley's future appointment as attorney for the parties' children. She contends the motion judge failed to make the requisite findings under Rule 1:7-4, a counsel fee award was not warranted because the judge ordered the same payment schedule that plaintiff initially had offered to Foley, and further contends she should be entitled to challenge the reasonableness of Foley's underlying fee. Plaintiff also seeks an award of counsel fees on appeal, as does Foley on her cross-appeal. We affirm in part and remand in part.

After defendant filed a post-judgment motion to modify parenting time, the court entered an order on February 4, 2005, appointing Foley as attorney for the parties' children to assist in implementing a parenting-time schedule. The order set Foley's fee at $250 per hour, fixing the retainer at $5,000, with $4,000 to be paid by defendant and $l,000 by plaintiff, subject to the rights of the parties to move for reimbursement or reallocation. The order further provided that Foley could seek additional counsel fees should the ordered retainer prove insufficient.

After Foley rendered her recommendation, a consent agreement was placed on the record on March 22, 2005. However, plaintiff subsequently changed her position and objected. At the request of the court, Foley filed a certification as to her position, indicating that plaintiff acted in an uncooperative manner, necessitating Foley's additional services, for which defendant should not be responsible. Foley's certification contained a detailed statement of the time spent from April 6 to April l9, the date of the certification (7.10 hours at $250 per hour totaling $1,775), half of which was for the April 8 court appearance. Plaintiff, who was represented by counsel, made no objection to the necessity of Foley's services, or to the reasonableness of her fee. On May l3, 2005, an order was entered enforcing Foley's recommendation as to the revised consent order and granting defendant's request that plaintiff be solely responsible for all counsel fees generated by Foley after April 5, payable within fifteen days.

On May 27, 2005, Foley sent plaintiff an updated bill totaling 9.6 hours, incorrectly billed at $300 per hour, not $250 per hour, for a total amount of $2,880. Thereafter, a dispute arose between plaintiff and Foley, primarily concerning time for payment, not the amount. Plaintiff asserted she did not have the funds to pay the bill in one lump sum and offered an installment plan of $500 per month. Foley demanded immediate payment but later agreed to accept one-half and the balance at $500 per month. After having only received $75 from plaintiff, Foley filed a motion to enter judgment on the fee and to compel payment by garnishment. After recognizing she had incorrectly billed plaintiff at her regular hourly rate, Foley submitted a revised bill based on the court-approved rate of $250 per hour. Foley also sought an additional amount of $l,l73.50 for fees and costs associated with the motion. Plaintiff sent Foley another $75 payment after the motion was filed. In a cross-motion, plaintiff sought a payment schedule of the outstanding fee and an order barring Foley's future appointment as attorney for the parties' children.

Following oral argument on August 5, the Family Part judge adopted plaintiff's initial proposal and entered an order directing her to pay Foley's outstanding bill at the rate of $500 per month, beginning in September. He then assessed an additional $1,000 counsel fee against plaintiff for services rendered by Foley on the motion, without explanation. The judge denied plaintiff's request that Foley not be appointed as attorney for the children in future proceedings, specifically finding "[t]here never was a problem with Ms. Foley's representation of the children . . . until [plaintiff] didn't like everything she recommended."

We reject plaintiff's challenges to the reasonableness of Foley's original fees and affirm the portion of the August 5 order directing plaintiff to pay the outstanding fee at the rate of $500 per month. A detailed statement of almost all of the original fees were contained in Foley's April l9, 2005 certification. Plaintiff had more than ample opportunity to respond to Foley's requested fees and address their reasonableness. Plaintiff never objected to the amount of the fees at that time. Moreover, following the judge's ruling, plaintiff was aware she owed a minimum of $1,775 to Foley, and of the short deadline for payment. Plaintiff's time to challenge the reasonableness of Foley's fee was a motion for reconsideration of the May l3 order, which plaintiff and her counsel chose not to do.

Foley was not required to submit the matter to fee arbitration, having been the court-appointed attorney for the children. Thus, the matter was properly before the trial judge on Foley's motion to enforce the prior order and compel payment of her outstanding fee. The judge acted well within his authority in setting a payment schedule for the outstanding fees due to the court-appointed attorney for services rendered on behalf of the parties' children and more than fairly accommodated plaintiff in its terms.

We are also satisfied the trial judge acted within his discretion in denying plaintiff's request to bar Foley's future appointment based on the certification presented in support of her cross-motion. This ruling was based, of course, on the record at that time, and was made without prejudice to any future application based on additional, specific facts.

We are constrained to vacate and remand the award of an additional $1,000 counsel fee, however, based on the trial judge's failure to set forth any findings or explanation for his ruling, as required by Rule 1:7-4. The motion judge must state the factual findings and correlate them with the relevant legal conclusions. See Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986). In this manner we, as the reviewing tribunal, are informed of the rationale underlying the motion judge's conclusions. Ibid. The rule requiring findings of fact and conclusions of law is "particularly applicable to matrimonial cases," because without such findings, we are unable to decide whether the trial court's determination was based on substantial credible proof. Ibid. (citations omitted); see also Cesare v. Cesare, 154 N.J. 394, 411-13 (1988). Plaintiff is entitled to know the reasons for the judge's decision. We also need to know the reasons in order to exercise appellate review and determine if there was an abuse of discretion or error of law in requiring plaintiff to pay an additional counsel fee to Foley or in the quantum of the award.

We deny both parties' request for counsel fees on the appeal without prejudice as untimely, subject to appropriate application pursuant to Rule 2:11-4.

We affirm the August 5, 2005 order in all respects, except we vacate and remand to the Family Part the additional $1,000 counsel fee award for analysis, determination, and explanation of factual and legal findings. We do not retain jurisdiction.

 

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A-0186-05T5

January 4, 2007