O.R.N. v. M.D.B.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0780-16T4

O.R.N.,

        Plaintiff-Respondent,

v.

M.D.B.,

     Defendant-Appellant.
____________________________________

              Argued February 14, 2018 – Decided March 6, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FV-12-0422-05.

              Rajeh A. Saadeh argued the cause for appellant
              (The Law Office of Rajeh A. Saadeh, LLC,
              attorneys; Rajeh A. Saadeh and Amanda E.
              Rasheed, on the briefs).

              Patricia Garity Smits argued the cause for
              respondent.

PER CURIAM

        Defendant M.D.B. appeals from a trial court order awarding

counsel fees and costs to plaintiff, O.R.N.               We affirm.
     The history of dispute between these parties is set forth in

detail in our prior opinion and need not be restated herein.

O.R.N. v. Bah, No. A-4566-13 (App. Div. Dec. 23, 2015).

     In December 2015, we reversed the trial court's May 1, 2014

order awarding a retroactive reduction in child support and counsel

fees to plaintiff.     In light of the potential relief afforded by


N.J.S.A. 2A:17-56.23a, we remanded the matter for a determination

of when plaintiff filed a motion for a reduction of child support

and for a statement of reasons for the counsel fee award.           On

remand, the trial court entered an order awarding counsel fees

against defendant, along with a statement of reasons.      Defendant

appealed.

     On appeal, defendant raises the following arguments:

            POINT I1

            THE SUA SPONTE ORDER OF SEPTEMBER 14, 2016,
            MUST BE REVERSED. [NOT RAISED BELOW.]

            POINT II

            THE MATTER SHOULD BE REMANDED TO A DIFFERENT
            JUDGE IN BURLINGTON COUNTY. [NOT RAISED
            BELOW.]

     The only issue before us pertains to the counsel fee award.

All other matters in dispute between the parties, not addressed



1
    Defendant's brief indicates that she did not have the
opportunity to raise Point I and Point II before the trial court.

                                  2                          A-0780-16T4
on appeal, remain with the Family Part.               The trial court's initial

award   of   counsel    fees     in    May    2014     was    due    to    defendant's

noncompliance with the court order providing for discovery.                            As

we   noted   in   our   prior    decision,      it    is     without      dispute   that

defendant failed to comply with the October 4, 2013 court order,

which required defendant to show proof of income and work-related

childcare     expenses.         We    discern    no     error       in    the   court's

determination that the award of counsel fees based upon defendant's

conduct was an appropriate sanction.                   The powers of the trial

courts are "broad enough to comprehend the use of any reasonably

appropriate and effective procedures designed to enforce Chancery

Division judgments or orders . . . ."                Lathrop v. Lathrop, 
57 N.J.

Super. 532, 539 (App. Div. 1959).

      Pursuant to Rule 4:42-9(a)(1), "[i]n a family action, a fee

allowance both pendent lite and on final determination may be made

pursuant to [Rule] 5:3-5(c)."                See Gotlib v. Gotlib, 
399 N.J.

Super. 295, 314 (App. Div. 2008).               In determining the fee award,

the judge must address the factors set forth in Rule 5:3-5(c):

             (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

                                         3                                      A-0780-16T4
           by each party; (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.

    As noted by our Supreme Court, "[b]ecause it is fundamental

to the fairness of the proceedings and serves as a necessary

predicate to meaningful review . . . '[the] trial court must

analyze   the   [relevant]   factors   in   determining   an   award    of

reasonable counsel fees and then must state its reasons on the

record for awarding a particular fee.'"       R.M. v. Supreme Court of

N.J., 
190 N.J. 1, 12 (2007) (quoting Furst v. Einstein Moomjy,

Inc., 
182 N.J. 1, 21 (2004) (citing Rule 1:7-4(a)) (requiring the

trial court to "find the facts and state its conclusions of law

thereon in all actions tried without a jury")).

    Here, in reaching the determination of the quantum of counsel

fees, the judge made the following findings:

           The [p]laintiff seeks an award of counsel
           fees. In making an award of attorneys' fees
           the [c]ourt is guided by the provisions of
           N.J. R. 5:3-5(c).    The factors the [c]ourt
           must consider are as follows:

                 a. The financial circumstances of
                 the parties.

                 The [p]laintiff is employed as a
                 medical doctor. The [d]efendant has
                 represented to the [c]ourt in her
                 motion filed in July 2014 that she
                 was unemployed.   It is unknown as


                                   4                             A-0780-16T4
of this date if her employment
status remains unchanged.

b.   The ability of the parties to
pay their own fees or to contribute
to the fees of the other party.
Both parties have the means and the
ability to pay their own counsel
fees as well as the counsel fees
incurred by the other party.

c.    The reasonableness and good
faith of the positions advanced by
the parties both during and prior to
trial.

The [p]laintiff has acted in good
faith by complying with all the
requests of the [c]ourt.        The
[d]efendant has failed to produce
discovery and has repeatedly failed
to comply with the [c]ourt[']s
[o]rders.

d. The extent of the fees incurred
by both parties.

The [p]laintiff has incurred legal
fees of over $60,000[] at the trial
level during the three years Ms.
Smits has represented him.      The
[d]efendant's   legal    fees   are
unknown.

e.   Any fees previously awarded.

The [c]ourt awarded all counsel fees
and costs associated with the August
2, 2013 motion as well as the
appearance and travel to [c]ourt on
February 20, 2014.

f.   The amount of fees previously
paid to counsel by each party.


                 5                     A-0780-16T4
             The [p]laintiff has not paid any
             counsel fees in connection with the
             fees awarded in this [o]rder.    It
             is unknown what the [p]laintiff has
             paid his counsel with regard to the
             other legal fees incurred.    It is
             unknown what the [d]efendant has
             paid her counsel.

             g.   The results obtained.

             The [p]laintiff has acted in good
             faith by complying with all the
             requests of the [c]ourt.        The
             [d]efendant has failed to produce
             discovery and failed to comply with
             [c]ourt [o]rders.

             h.   The degree to which fees were
             incurred to enforce existing orders
             or to compel discovery.

             The   [p]laintiff's    legal   fees
             incurred were as a direct result of
             the [d]efendant failing to comply
             with discovery.

             i. Any other factor bearing on the
             fairness of the award.

             The [c]ourt finds the [d]efendant
             repeatedly failed to comply with the
             [c]ourt[']s [o]rder for discovery.
             A factor to the extent that the
             [c]ourt had to draw an adverse
             inference from her failure to
             comply.   Further, the [d]efendant
             had repeatedly appeared late and
             engaged the services of numerous
             attorney's late in the proceedings
             causing adjournments and delays.

    Further, in his statement of reasons, the judge

stated:

                              6                       A-0780-16T4
The [p]laintiff seeks an award of counsel
fees. In making an award of attorneys' fees
the [c]ourt is guided by the provisions of []
R.P.C. 1.5(a).   There are factors that the
[c]ourt will evaluate in determining the
reasonableness of a fee[, which] include the
following:

    1.    The time and labor required,
    the novelty and difficulty of the
    questions involved and the skill
    requisite to perform the legal
    service properly.

    The [p]laintiff's motion was worked
    on for a total of 18.65 billable
    hours by Patricia Garity Smits, Esq.
    Ms. Smits, Esq. has deducted 4.35
    billable hours from her actual time
    spent charging for 14.3 billable
    hours. In addition, the [sic] Ms.
    Smits, Esq. spent an additional two
    billable hours in preparing her
    updated Certification that she has
    not billed her client. The motion
    filed by the [p]laintiff was for the
    [d]efendant     to    comply    with
    discovery.

    2. The likelihood, if apparent to
    the client, that the acceptance of
    the   particular  employment  will
    preclude other employment by the
    lawyer.

    Not applicable.

    3. The fee customarily charged in
    the locality for similar legal
    services.

    Ms. Smits, Esq. bills at a rate of
    $395[] per hour.    The legal fees
    charged by her are the norm charged
    by other attorneys within the same

                      7                         A-0780-16T4
area    and   possessing    similar
background,      training       and
professional experience.

4.   The amount involved and the
results obtained.

The [p]laintiff has acted in good
faith by complying with all the
requests of the [c]ourt.         The
[d]efendant has failed to produce
discovery and her non-compliance
with the [c]ourt [o]rders was a
direct cause of the [p]laintiff's
counsel fees that the [c]ourt has
awarded. The result obtained was a
dismissal   of   the   [d]efendant's
application and the granting of some
of the [p]laintiff's relief.     The
[c]ourt now awards the [p]laintiff
counsel fees.

5. The time limitation imposed by
the client or by the circumstances.

Not applicable.

6.   The nature and length of the
professional relationship with the
client.

Ms. Smits, Esq. has represented the
[p]laintiff for three years.

7. The experience, reputation, and
ability of the lawyer or lawyers
performing the services.

Ms. Smits, Esq. was admitted to the
New Jersey Bar in 1978 and she is
also a member of the Florida Bar.
Her practice is limited to Family
Law.   She is a New Jersey Supreme
Court   [c]ertified   [m]atrimonial
[a]ttorney and was selected among

                  8                    A-0780-16T4
the first group of attorneys to be
certified.   She is also a trained
mediator and has completed training
as a [c]ollaborative lawyer. She is
a trained [attorney in] arbitration
of family matters conducted by the
American Academy of Matrimonial
Lawyers [AAML].    She served as a
[j]udicial [l]aw [c]lerk for the
Honorable Donald G. Collester, Jr.
from 1978-[]79. She has worked as
an   associate   with  a   firm  in
Somerville, New Jersey and with
Schenck, Price, Smith & King. She
was an equity party a Schenck,
Price, Smith & King from 1984-[]93,
when she established a firm.    Ms.
Smits, Esq. actively participates
in numerous national, state, and
local activities related to family
law.

8. Whether the fee is contingent or
fixed.

Ms. Smits, Esq. works at a fixed
hourly rate of $395[]. It is not
contingent or flat.

After a review of the [p]laintiff's
counsel fees, the [c]ourt has found
the fees to be necessary for the
[d]efendant's    non-compliance   in
this matter.      The [d]efendant's
current    counsel     opposes   the
[p]laintiff's request for attorney
fees by letter dated August 12,
2016, until the conclusion of
discovery and if necessary a plenary
hearing to decide the [p]laintiff's
application    for    fees.      The
[d]efendant's   counsel    does  not
indicate in his letter that the fees
charged by Ms. Smits, Esq. were
unreasonable. Therefore, after the

                 9                     A-0780-16T4
                 Appellate Division's remand of the
                 matter for the [c]ourt to address
                 the factors for the [p]laintiff's
                 counsel fee award ordered in [the]
                 February 20, 2014 [o]rder, the
                 [c]ourt has awarded the [p]laintiff
                 the full counsel fees requested.
                 After   addressing    the   relevant
                 factors outlined in R. 5:3-59(c) and
                 R.P.C 1.5(a), the [c]ourt orders a
                 counsel fee award in the sum of
                 [$5648.50] to be paid directly to
                 Ms. Patricia Garity Smits, Esq.
                 within thirty (30) days from the
                 date of this [o]rder.

     In reviewing the decision of a family court, we "defer to the

factual findings of the trial court," N.J. Div. of Youth & Family

Servs. v. E.P., 
196 N.J. 88, 104 (2008), in recognition of the

"family    courts'   special   jurisdiction   and   expertise   in    family

matters . . . ."     N.J. Div. of Youth & Family Servs. v. M.C. III,


201 N.J. 328, 343 (quoting Cesare v. Cesare, 
154 N.J. 394, 413

(1998)).    The trial court's decision will be upheld even if there

is evidence that might have resulted in a different decision by

the trial court.      Ibid.    It is "[o]nly when the trial court's

conclusions are so 'clearly mistaken' or 'wide of the mark'" that

we will intervene and make our own findings "to ensure that there

is not a denial of justice."      E.P., 
196 N.J. at 104 (quoting N.J.

Div. of Youth & Family Servs. v. G.L., 
191 N.J. 596, 605 (2007)).

We discern no basis to reject the judge's factual findings which

find support in the record and are not "wide of the mark."

                                   10                                A-0780-16T4
     In the final analysis, in rejecting defendant's criticisms

of the court's methodology, we rely on the spirit of our Supreme

Court's declaration that "there is no precise formula . . . [and

that t]he ultimate goal is to approve a reasonable attorney's fee

that is not excessive."   Litton Indus., Inc. v. IMO Indus., Inc.,


200 N.J. 372, 388 (2009).   We are satisfied the judge's approach

ultimately produced a reasonable fee award.

     Affirmed.




                                11                         A-0780-16T4