N.M. v. A.S.

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                        NOT FOR PUBLICATION WITHOUT THE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-5310-15T3

N.M.,

        Plaintiff-Appellant,

v.

A.S.,

     Defendant-Respondent.
_____________________________

              Submitted December 21, 2017 – Decided March 15, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FV-09-0428-16.

              N.M., appellant pro se.

              The Serruto Law Firm, PC, attorneys for
              respondent (Michael Wiseberg, on the brief).

PER CURIAM

        At the time of the commencement of this action, plaintiff

N.M. was married to her husband, defendant A.S.                  In August 2015,

the     parties    filed    cross-complaints       under   the    Prevention       of

Domestic Violence Act (PDVA), 
N.J.S.A. 2C:25-17 to -35.                     Before
the completion of their trial, defendant withdrew his complaint.

After conducting a seven-day trial, the Family Part judge entered

a final restraining order (FRO) in favor of plaintiff.

     Plaintiff later sought an award of counsel fees and costs

totaling $46,240.25, but the trial judge awarded only $1566.25

after finding that plaintiff was not entitled to recover fees and

costs incurred while defendant's complaint was pending and due to

plaintiff's counsel's use of block billing instead of task billing.

The judge also refused to award fees for time spent addressing

parenting time issues or for plaintiff's counsel's preparation of

a written summation, finding that they were not a direct result

of defendant's domestic violence.        On appeal from the January 26,

2016 order awarding her those fees and costs, plaintiff contends

that the judge abused his discretion by improperly limiting her

fee award in violation of the public policy established by the

PDVA.   We agree and accordingly vacate the award and remand for

reconsideration.

     The facts giving rise to the acts of domestic violence alleged

by the parties as found by the trial judge are not material to our

opinion and need not be repeated here.         More significant is the

procedural history, which we summarize as follows.            The parties

were married in August 2011 and have one daughter.           On August 10,

2015,   plaintiff   obtained   a   temporary   restraining    order   (TRO)

                                     2                             A-5310-15T3
against defendant, temporary custody of the parties' daughter and

possession of their residence. Three days later, defendant secured

a TRO against plaintiff.

       The final hearing commenced on August 20, 2015, and continued

for seven non-consecutive days, concluding on December 10, 2015

when the judge placed his decision on the record.                 Before doing

so,    the   judge   considered   the     oral    argument   of   counsel    that

"supplement[ed] the[ir earlier] written submissions[.]" After the

trial judge placed his decision on the record, he instructed

plaintiff's counsel to submit a certification of services and

provided for the submission of opposition by defense counsel.

       Plaintiff's     counsel    filed     a    detailed    certification     of

services seeking payment for services that included addressing

parenting time issues arising from the entry of the TRO, trial

preparation, and the seven court appearances.                Defendant opposed

the application, and further filed a motion for reconsideration

of the FRO.     Plaintiff opposed that motion and her counsel filed

another certification of services, seeking an additional $4200 for

fees    incurred     post   judgment,     including    opposing    defendant's

motion.

       On January 26, 2016, the judge denied defendant's motion for

reconsideration       and   awarded     plaintiff     $1041.25    out   of   the

$46,240.25 in attorney fees she sought through trial, as well as

                                        3                               A-5310-15T3
$525   out    of    the   $4200     incurred    in   connection      with   opposing

defendant's reconsideration motion.                  In his oral decision, the

judge explained that the award was based on plaintiff prosecuting

her request for an FRO and not "for any[ ]time spent in defending

[defendant's]        TRO."        According     to    the   judge,    "prosecuting

[plaintiff's] request for an FRO against [defendant] and defending

his request against her was so intertwined that it[ was] impossible

to separate the two."             The judge held that plaintiff could not

recover for any attorney fees from August 13, 2015, when defendant

requested a TRO, to October 20, 2015, when he dismissed his

complaint.         Further, he noted that plaintiff could not recover

"fees under the frivolous litigation statute, [
N.J.S.A. 2A:15-

59.1(a),]"     because       "the     [c]ourt    never      found    [defendant's]

application to be" frivolous.

       The judge also refused to award fees for time "spent preparing

the written summation[1] [or for] dealing with custody and parenting

time."       According to the judge, "the hours spent [for those




1
   According to defendant, the judge never instructed counsel to
submit post-trial written summations, but plaintiff, nevertheless,
made a submission. The record, however, indicates that after an
extensive discussion about submissions, the judge allowed the
parties to make written submissions and later amplify them through
oral summations or present their summations entirely orally on the
scheduled date.

                                          4                                  A-5310-15T3
services]    are     [also]    not    . . .      directly   attributable      to

[defendant's] act of domestic violence."

      Finally, the judge determined the hours and fees that were

reasonable and explained why he substantially reduced the amount

sought by plaintiff.       Relying on Rendine v. Pantzer, 
141 N.J. 292,

335 (1995), he stated that when a court decides to award counsel

fees "pursuant to a fee[-]shifting statute such as the [PDVA]," a

court must "not accept passively the submissions of counsel to

support the lodestar amount."          He found that "this task has been

made very difficult if not altogether impossible by plaintiff's

counsel's use of . . . block billing rather than task billing[,

which is when] an attorney bills a portion of an hour for each

particular task."          He also stated     "[b]lock billing makes it

impossible to tell how much time is spent on a given task and

therefore [it] is also practically impossible for the [c]ourt to

determine whether or not time extended is reasonable."                For the

same reason, the judge denied fees incurred for time spent in

opposing defendant's motion for reconsideration, and for pursuing

a   cross   motion   for    related   attorney     fees.    The    judge   also

disallowed fees for anticipated time spent in court for oral

arguments on that day.

      In    February       2016,     plaintiff     filed    a     motion    for

reconsideration for the counsel fees and submitted her counsel's

                                        5                              A-5310-15T3
certification of services for that motion.          On July 6, 2016, the

judge considered counsels' arguments and then denied plaintiff's

motion.   This appeal followed.

     We begin by recognizing the limited nature of our review.             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, 
141 N.J. at 317).             However, where a

trial judge's determination of fees was based on "irrelevant or

inappropriate factors, or amounts to a clear error in judgment[,]"

we must intervene.    Masone v. Levine, 
382 N.J. Super. 181, 193

(App. Div. 2005) (citing Flagg v. Essex Cty. Prosecutor, 
171 N.J.
 561, 571 (2002)).

     A trial judge is specifically authorized by the PDVA to award

as damages the reasonable counsel fees and costs incurred by a

victim of domestic violence.      Under the PDVA, a judge may enter

an order "requiring the defendant to pay to the victim monetary

compensation for losses suffered as a direct result of the act of

domestic violence[,]" which includes "reasonable attorney's fees

[and] court costs[.]"     
N.J.S.A. 2C:25-29(b)(4).            The award is

                                     6                              A-5310-15T3
designed "to make the victim whole."    Wine v. Quezada, 
379 N.J.

Super. 287, 292 (Ch. Div. 2005).     Because fees and costs in a

domestic violence action are awarded as damages, an award is "not

subject to the traditional analysis" for an award of fees in

family-type claims pursuant to 
N.J.S.A. 2A:34-23, and the court

is not obliged to consider the parties' financial circumstances.

McGowan, 
391 N.J. Super. at 507 (quoting Schmidt v. Schmidt, 
262 N.J. Super. 451, 453 (Ch. Div. 1992)); see also Wine, 
379 N.J.

Super. at 292.   Accordingly, the only three requirements for an

award of counsel fees under the PDVA are that the fees are the

"direct result of . . . domestic violence," they are reasonable,

and that they are presented by way of affidavit pursuant to Rule

4:42-9(b).   McGowan, 
391 N.J. Super. at 507 (quoting Schmidt, 
262 N.J. Super. at 454); Wine, 
379 N.J. Super. at 291.

    Although the PDVA provides for an award of counsel fees and

costs to a "victim" of domestic violence, it does not allow for

the same award to successful defendants in order

         to avoid a chilling effect on the willingness
         of domestic violence victims to come forward
         with their complaints. To saddle a victim of
         domestic violence with the counsel fees of his
         or her adversary when the complaint was filed
         in good faith, but the evidence nevertheless
         fell short of persuading a judge that the
         [PDVA] was violated, would have just such a
         chilling effect.



                                 7                         A-5310-15T3
           [M.W. v. R.L., 
286 N.J. Super. 408, 411 (App.
           Div. 1995).]

     The trial judge here, therefore, correctly determined that

plaintiff could not recover fees incurred exclusively for her

defense against defendant's withdrawn complaint.    We part company

with the judge, however, as to the manner in which he attempted

to deal with the overlap between those fees incurred by plaintiff

as a result of defendant's domestic violence and those incurred

defending against defendant's cross-complaint.    We disagree that,

as the judge found, because the parties' complaints were so

"intertwined[,]" plaintiff should have been deprived of an award

of fees for the time period that defendant's cross-complaint was

pending.    Similarly, we do not agree that fees incurred for

preparation of summations or addressing parenting time issues

arising from the entry of the TRO or FRO are not compensable.

     First, we discern no legal basis to exclude legal fees related

to custody and parenting time orders in the context of actions

filed under the PDVA.     The PDVA expressly provides for a trial

judge's entering     of parenting time orders upon a finding of

domestic violence.     
N.J.S.A. 2C:25-29(b)(3).   Any fees incurred

relative to such orders clearly are the "direct result" of the

finding of domestic violence and the ensuing need to address to

parenting time.    
N.J.S.A. 2C:25-29(b)(4).


                                  8                         A-5310-15T3
       Second, and similarly, fees incurred for an attorney's work

on written summation are equally compensable under the PDVA as

fees   for    trial    preparation       and   post-judgment     services,     and

everything in between.          All of the necessary services rendered to

a victim would have never been incurred but for a defendant's

domestic violence.

       Turning to the trial judge's rejection of the fees incurred

by   plaintiff's      counsel    while    defendant's     cross—complaint      was

pending, we conclude that the trial judge failed to consider the

purposes of the PDVA when reaching his decision.                      "When fee-

shifting is permitted, the public policy of the enabling statute

is a relevant factor to be considered in conjunction with the

[other required] factors[.]"          Garmeaux v. DNV Concepts, Inc., 
448 N.J.   Super.    148,    161     (App.   Div.    2016).     We    find   totally

inconsistent with the purposes of the PDVA the trial judge's

conclusion that because there were services rendered to plaintiff

during the period that defendant's cross-complaint was pending,

they were so "intertwined" that they were not recoverable.                       By

reaching that conclusion, the trial judge ignored "the interest

to be vindicated in the context of the [PDVA's] objectives[.]"

Szczepanski v. Newcomb Med. Ctr., 
141 N.J. 346, 366 (1995).                      To

allow domestic violence defendants to eradicate or minimize a

victim's     entitlement    to    a   counsel    fee    award    by   filing   and

                                          9                               A-5310-15T3
withdrawing   a   cross-complaint    is    antithetical   to   the    PDVA's

purpose to make the victim whole.

      Opposing domestic violence complaints that share "a common

core of operative facts and [are] bottomed on related legal

theories" must be considered "overlapping claims[,]" Silva v.

Autos of Amboy, Inc., 
267 N.J. Super. 546, 559 (App. Div. 1993),

"inextricably caught up with each other."           Garmeaux, 
448 N.J.

Super. at 158 (quoting Benkoski v. Flood, 
626 N.W.2d 851, 862

(Wis. Ct. App. 2001)).    Despite the actions' relationship to each

other, "[d]ismissal of [defendant's cross-complaint was] not a

sufficient reason for a wholesale" refusal to award fees to

plaintiff while it was pending.           Silva, 
267 N.J. Super. at 559

(citing Hensley v. Eckerhart, 
461 U.S. 424, 435 (1983)).                  The

correct analysis required the trial judge to identify, from the

records of the time expanded by counsel during that period, which

services would have had to be rendered to plaintiff regardless of

defendant's filing of a cross-complaint and award that amount,

subject to the proper calculation of the lodestar amount.2                See

ibid.


2
    We recently explained the calculation as follows:

           When fee shifting is permissible, a court must
           ascertain the "lodestar"; that is, the "number
           of hours reasonably expended by the successful


                                    10                               A-5310-15T3
party's counsel in the litigation, multiplied
by a reasonable hourly rate." To compute the
lodestar, the trial court must first determine
the reasonableness of the hourly rates charged
by   the  successful   party's   attorney   in
comparison to rates "for similar services by
lawyers of reasonably comparable skill,
experience and reputation" in the community.
After evaluating the hourly rate, the trial
court must then determine the reasonableness
of the hours expended on the case. "Whether
the hours the prevailing attorney devoted to
any part of a case are excessive ultimately
requires a consideration of what is reasonable
under the circumstances" and should be
informed by the degree of success achieved by
the prevailing party. The award need not be
proportionate to the damages recovered.

Rules of Professional Conduct (RPC) 1.5(a),
requires that "[a] lawyer's fee shall be
reasonable in all cases, not just fee-shifting
cases[.]"

In determining reasonableness,    RPC   1.5(a)
requires courts to consider:

     (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  employment  will
     preclude other employment by the
     lawyer;

     (3) the fee customarily charged in
     the locality for similar legal
     services;



                     11                          A-5310-15T3




                                                         (continued)
     Finally, we address the trial judge's wholesale rejection of

plaintiff's counsel's "blocked billed" time entries.      We recognize

that a trial judge has the discretion to determine if billing

charges by attorneys are vague or improper.     See Rendine, 
141 N.J.

at 337.    Indeed, billing entries should show how the hours were

divided.    However, "[i]t is not [always] necessary to know the

exact number of minutes" devoted to each task, the precise details

of an activity, or the achievements of each attorney working on



                (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;

                (8) whether the fee is fixed or
                contingent.

           In reviewing the trial court's methodology for
           an award of fees, we are guided by 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."

           [Garmeaux,   448    N.J.  Super.     at   159-60
           (alterations     in    original)      (citations
           omitted).]

                                12                             A-5310-15T3
the matter.    Ibid. (quoting Lindy Bros. Builders, Inc. of Phila.

v. Am. Radiator & Standard Sanitary Corp., 
487 F.2d 161, 167 (3d

Cir. 1973)).   It is sufficient that a billing entry contains the

hours spent on a general activity.     Ibid.   Specificity is only

required to the extent necessary for the court "to determine if

the hours claimed are unreasonable for the work performed."     Rode

v. Dellarciprete, 
892 F.2d 1177, 1190 (3d Cir. 1990) (quoting

Pawlak v. Greenawalt, 
713 F.2d 972, 978 (3d Cir. 1983)).

     Applying these guiding principles, we conclude the trial

judge mistakenly applied his discretion by rejecting plaintiff's

"blocked billed" time.     "'Block billing' is 'the time-keeping

method by which each lawyer and legal assistant enters the total

daily time spent working on a case, rather than itemizing the time

expended on specific tasks.'"   Welch v. Metro. Life Ins. Co., 
480 F.3d 942, 945 n.2 (9th Cir. 2007) (quoting Harolds Stores, Inc.

v. Dillard Dep't Stores, Inc., 
82 F.3d 1533, 1554 n.15 (10th Cir.

1996)).   It "is a common practice which itself saves time in that

the attorney summarizes activities rather than detailing every

task" and such billing should be upheld as reasonable if the listed

activities reasonably correspond to the number of hours billed.

U.S. ex rel. Doe v. Pa. Blue Shield, Xact Medicare Servs., 
54 F. Supp. 2d 410, 415 (M.D. Pa. 1999).   While a substantial number of

vague entries may be a reason to exclude hours, it is not a reason

                                13                          A-5310-15T3
to exclude the entire entry.         The more appropriate approach would

be to look at the entire block, compare the listed activities and

the   time   spent,     and   determine     whether   the   hours   reasonably

correlate to all of the activities performed.

      In sum, we conclude the fee award here was the result of a

mistaken     exercise   of    the   trial   judge's   discretion.      We   are

therefore constrained to vacate the fee award made to plaintiff

and remand the matter to the trial judge to consider anew his

determination as to the amount of counsel fees and costs to which

plaintiff is entitled as a victim under the PDVA.

      The order under appeal is vacated and the matter is remanded

for further proceedings consistent with our opinion.                We do not

retain jurisdiction.




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