JEROME CUNNINGHAM v. JEANNE MITKOWSKI

NOT FOR PUBLICATION WITHOUT THE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-1102-19T2

JEROME CUNNINGHAM,

          Plaintiff-Appellant,

v.

JEANNE MITKOWSKI,
f/k/a JEANNE BRUTMAN,

          Defendant,

and

RICHARD SANVENERO, JR.,
Guardian Ad Litem,

     Respondent.
__________________________

                   Submitted October 28, 2020 – Decided December 4, 2020

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Monmouth County,
                   Docket No. FM-13-0283-18.

                   Law Office of Steven P. Monaghan, LLC, attorneys
                   for appellant (Kristin S. Pallonetti, on the briefs).
            Law Office of Timothy F. McGoughran, LLC,
            attorneys for respondent (Richard Sanvenero, Jr., on
            the brief).

PER CURIAM

      In this post-judgment matrimonial matter, plaintiff Jerome Cunningham

appeals from a Family Part order directing that he make monthly payments

towards his fifty-percent share of fees due and owing to the court-appointed

guardian ad litem (GAL) for the child that plaintiff shares with his ex-spouse,

defendant Jeanne Mitkowski.       Based on our review of the record, we are

convinced the court erred by: failing to consider plaintiff's objections to the

fees charged by the GAL; failing to consider plaintiff's ability to pay in its

determination of the monthly payments it ordered plaintiff pay the GAL; and

failing to make findings of fact and conclusions of law supporting its findings

of the amount due to the GAL and the amount of plaintiff's monthly payment

for his share of the fees due to the GAL. We vacate the court's order and

remand for further proceedings.

      Plaintiff and defendant married in 2008 and divorced in 2015. They

share one child, a son born in 2009. They have had ongoing and contentious

post-judgment divorce proceedings in New York and New Jersey that need not

be detailed here, other than to note that in May 2018, the court appointed the

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GAL for the parties' child pursuant to Rule 5:8B. The order appointing the

GAL required that plaintiff and defendant share equally in the payment of the

GAL's fees, which the court ordered be paid at the rate of $240 per hour.

      The contentious relationship between the parties and the apparent needs

of the child kept the GAL quite busy over the fifteen months following his

appointment by the court. The GAL sent the parties monthly invoices for his

services that were, for the most part, not paid, and, as of August 22, 2019, the

outstanding sum claimed by the GAL to be due was $64,796.70.

      In August 2019, the parties filed cross-motions related to their ongoing

disputes over child custody and parenting time issues. The GAL joined in the

motion practice, requesting that the court order plaintiff and defendant to each

pay $3,000 per month toward their respective shares of the outstanding amount

due for his services. Defendant resolved the fee dispute with the GAL; she

agreed to pay her fifty-percent share of the fees at the rate of $1,500 per

month.

      Plaintiff opposed the GAL's motion.        He submitted a certification

explaining that he had been furloughed from his job and was unsure when he

would be reinstated.     He generally described his income, expenses, and

financial situation, and provided a case information statement. He represented


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that he could afford to pay only $200 per month during the furlough from his

job and $500 per month after he is reinstated.            He also requested "fee

arbitration" because he took "issue[] with [the GAL's] billing," citing an

example of being billed for a brief conversation he had with the GAL when

they had a chance encounter in a municipal court.

       The GAL submitted a reply certification questioning the accuracy of

plaintiff's   case   information     statement     and     challenging    plaintiff's

representations about his income, assets, and ability to pay.            The GAL

acknowledged that the court was "in the best position to . . . evaluate the

reasonableness of [his] fees" and that any issues concerning the amount of his

fees are "subject to [c]ourt review and decision." He also disputed plaintiff's

version of their encounter in the municipal court, explaining he billed for the

conversation because he spent "nearly twenty . . . minutes" speaking with

plaintiff about "issues [plaintiff] had with . . . parenting time."

       The court held a hearing on the GAL's motion.             Plaintiff's counsel

argued the primary issue was the amount of the monthly payment the GAL

requested. Plaintiff's counsel asserted plaintiff "cannot afford to make the

same . . . payment that [defendant] is making." Plaintiff's counsel explained

plaintiff was furloughed from his job and collecting $450 per week in


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unemployment benefits, and plaintiff's living expenses were about $4,200 per

month. He also asserted defendant owed plaintiff $17,000 in arrears in child

support. Counsel argued plaintiff could afford to pay $200 per month toward

the GAL's fees, and $500 per month after plaintiff's work furlough ended and

plaintiff began receiving his former average paycheck, which netted $1,287

per week.

      Plaintiff's counsel also questioned the GAL's request for an order

providing for entry of a judgment if plaintiff failed to make timely payments in

accordance with whatever payment schedule the court established. Counsel

argued plaintiff "has some issues with the [GAL's] billings," and she

questioned whether such a judgment could be entered prior to a fee arbitration.

In response, the court said plaintiff was "not taking a [GAL] to fee arbitration"

because the court had "authorized the amount of the fees." The court further

stated it "authorized the hourly rate" and "reviewed [the GAL's] billing, and [it

was] certain that for every hour [the GAL] billed, he had to have spent another

half hour to an hour of time he didn't bill."

      Plaintiff's counsel did not dispute the GAL should be paid or did not

earn a fee. Plaintiff's counsel reiterated that plaintiff simply did "not have

[the] financial means" to pay more than $200 per month while he collected


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unemployment while on furlough and $500 per month when he returned to his

job. Counsel further represented plaintiff could pay more if defendant paid the

substantial sum due to him in child support arrears. Counsel also opined that

the court never intended the GAL's bill would be in excess of $60,000 when

the GAL was first assigned, and plaintiff sought an order requiring him to pay

only what he could reasonably afford.

      The GAL questioned plaintiff's claims about his ability to pay. The

GAL made arguments about plaintiff's alleged income, assets, property

ownership, and spending habits.       The GAL also asserted plaintiff's work

furlough would last only about six to eight weeks and urged the court to find

that plaintiff could afford to pay $1,500 per month toward plaintiff's share of

the GAL's outstanding fees.

      The court questioned the GAL about the arrangement he reached with

defendant for the payment of her share of the fees. The GAL represented that

defendant agreed to pay him $1,500 per month toward her one-half share of the

outstanding fees.

      After hearing argument, the court stated it would "do an order" and

"we'll figure it out." The court subsequently issued an order that, in pertinent

part, provides that plaintiff and defendant are each responsible for fifty percent


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of the GAL's outstanding bill for services. The court determined the amount

due from plaintiff was $37,423.33, and directed that plaintiff pay $500 per

month during October through December 2019, and $1,500 per month

thereafter.1 The order further provides that if plaintiff fails to make a payment

by the twenty-fifth day of any month, the GAL may record the order as a

docketed judgment, with interest accruing as of August 23, 2019, and pursue

all collection remedies available to judgment creditors. This appeal followed.

      Our review of Family Part orders in limited. Cesare v. Cesare,  154 N.J.
 394, 411 (1998). We defer to the Family Part's factual findings “supported by

adequate, substantial, credible evidence” in the record. Gnall v. Gnall,  222 N.J.
 414, 428 (2015). "However, when reviewing legal conclusions, our obligation

is different; '[t]o the extent that the trial court's decision constitutes a legal

determination, we review it de novo.'" Landers v. Landers,  444 N.J. Super.
 315, 319 (App. Div. 2016) (alteration in original) (quoting D'Agostino v.

Maldonado,  216 N.J. 168, 182 (2013)).

1
   The GAL claimed $64,796.70 was due from the parties. The court ordered
that plaintiff pay fifty percent of the amount due and directed that plaintiff pay
$37,423.33, which, we observe, is not fifty percent of $64,796.70. Plaintiff
does not argue on appeal that the court erred in calculating his fifty-percent
share of the amount the GAL claimed was due, and we do not address or
decide the issue. On remand, the court shall determine the total amount due to
the GAL and make findings of fact supporting its determination of the amount
it finds plaintiff is obligated to pay.
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      Rule 5:8B(a) provides for the appointment of a GAL "to represent the

best interests of the child or children" in a Family Part matter. In making the

appointment, the court is required to set the GAL's hourly rate. R. 5:8B(d).

The GAL is required to "submit informational monthly statements to the

parties," and he or she "shall submit a certification of services at the

conclusion of the matter, on notice to the parties, who will thereafter be

afforded the right to respond prior to the court fixing the final fee." Ibid.

      By providing the parties with a right to respond to a GAL's final

certification of services prior to the fixing of a final fee, Rule 5:8B(d)

implicitly requires that the court consider a party's objection to the amount of

the GAL's certification of services and proposed final fee.             Otherwise,

affording the parties the "right to respond" to the GAL's certification of

services would be meaningless.       Thus, a party is entitled to challenge the

amount of the GAL's requested fee, and the court is required to consider and

determine any issues raised by a party's challenge to the fee claimed. See In re

Adoption of a Child by J.D.S.,  353 N.J. Super. 378, 403-04 (App. Div. 2002)

("remand[ing] for the trial court to []consider [the] plaintiffs' challenge to the

amount of the GAL's fee"); cf. Milne v. Goldenberg,  428 N.J. Super. 184, 207

(App. Div. 2012) (affirming a GAL fee award in part because the court 's "final


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assessment of the parties' obligation for payment was made following [a] full

opportunity to challenge the aspects of the work performed and the fees

charged").

      Plaintiff challenged the amount of the fee sought by the GAL, or at least

attempted to, by arguing the GAL's fee claim should be submitted to fee

arbitration and by claiming one billing entry was for time spent while no

compensable GAL work was performed.              The court correctly rejected

plaintiff's request for fee arbitration under our Court Rules, see R. 1:20A-1 to -

6, because the rules apply to "fee disputes between clients and attorneys," R.

1:20A-2(a). Although the GAL here is an attorney, he billed exclusively for

services provided as a GAL, and "[a] [GAL] is not counsel for any other

person—a [GAL] is not a counsel at all." In re Adoption of a Child by E.T.,

 302 N.J. Super. 533, 542 (App. Div. 1997). As such, his the GAL's fees "are

more properly considered to be costs of the proceedings" rather "than counsel

fees." Ibid. The fee arbitration procedure for disputes over attorney's fees is

not available to plaintiff.   The GAL did not provide any services as an

attorney; he provided, and billed for, only GAL services.

      Plaintiff's attempt to challenge the amount of the GAL's claimed fees

ended quickly before the court. Plaintiff challenged the GAL's charge for their


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conversation during the chance encounter at the municipal court, but the court

summarily declared it would not consider plaintiff's claim. Although the court

was presented with conflicting certifications about what occurred, the court

stated it "was certain" of the validity and accuracy of each of the GAL's billing

entries because the GAL was "thorough, efficient and highly caring and

responsible."

      In making that finding, the court erred in two ways. First, the court

effectively prevented plaintiff from further challenging the accuracy, validity,

and reasonableness of the GAL's billing entries. Cf. Milne,  428 N.J. Super. at
 207. Second, the court erred by resolving material factual issues without a

plenary hearing, K.A.F. v. D.L.M.,  437 N.J. Super. 123, 137 (App. Div. 2014),

and   by    making    "credibility   determinations . . . based   on   conflicting"

certifications, id. at 137-38.

      Similarly, the court was presented with conflicting certifications

concerning plaintiff's ability to pay the monthly amount the GAL requested.

Plaintiff's certification explained his current employment and financial

situation, and he also filed a case information statement. The GAL's reply

certification challenged the accuracy of plaintiff's representations and included

assertions concerning plaintiff's assets, lifestyle, and spending habits.      The


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record does not reveal how the court resolved the conflicts in the evidence

presented, but it was error for the court to do so based on the conflicting

versions of the facts presented in the certifications.    Ibid.   It is apparent,

however, the court rejected plaintiff's representations that he could not afford

to pay the $500 and $1,500 monthly amounts the court ultimately ordered, and

the court found more credible the GAL's claims about plaintiff's income,

financial status, and ability to pay. Given the conflicting evidence presented

concerning plaintiff's ability to pay the amount requested by the GAL, the

court erred by making those credibility determinations without an evidentiary

hearing. Ibid.

      In setting the amount of plaintiff's monthly payment for the GAL's fees,

the court was required to determine both the reasonableness of the fees

charged and plaintiff's ability to pay, see J.D.S.,  353 N.J. Super. at 403-04

(remanding for the trial court to consider the amount of the GAL's fee and the

plaintiff's ability to pay), and to make findings of fact and conclusions of law

supporting its decision, R. 1:7-4.        Where, as here, the court exercises

discretion in setting the amount due and the amount of plaintiff 's monthly

payments, see Milne,  428 N.J. Super. at 207 (noting "the trial judge has 'the

power and discretion to fix a retainer in the appointing order and to allocate


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final payment of the [GAL] fee between the parties'" (alteration in original)

(quoting R. 5:8B)), "we must be provided with adequate reasons for the

[court's] determinations" to conduct appropriate appellate review, Gormley v.

Gormley,  462 N.J. Super. 433, 449 (App. Div. 2019). A trial court's "omission

of critical factual findings, . . . impedes our review" and necessitates a remand.

Ibid. (alteration in original) (quoting Elrom v. Elrom,  439 N.J. Super. 424, 443

(App. Div. 2015)).

      Due to the court's omission of any findings of fact supporting its

decision, it is not possible to determine if the court considered or relied on

defendant's settlement with the GAL in determining plaintiff's monthly

payment obligation. Plaintiff correctly notes that during the hearing the court

asked the GAL about the settlement with defendant, and plaintiff argues the

court clearly relied on defendant's agreement to pay the GAL $1,500 per

month in setting plaintiff's post-December 2019 payments in the same amount.

We need not speculate on the basis for the court's determination, but we agree

with plaintiff that defendant's settlement with the GAL is irrelevant to, and

should not be considered in any manner in the determination of, the amount

due to the GAL from plaintiff and the amount of plaintiff's monthly payment

obligation to the GAL. On remand, the terms of defendant's settlement with


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the GAL concerning the amount and monthly payment obligations for his fees

shall not be presented to, or considered by, the court in its consideration and

determination of the amount plaintiff is required to pay and the amount of

plaintiff's monthly payment obligation.

      Plaintiff also argues the court erred by ordering entry of a judgment in

the amount of any outstanding balance due to the GAL if plaintiff fails to make

a payment by the twenty-fifth day of each month. In our view, any order

permitting entry of a judgment based on an alleged failure to make a timely

payment shall require the filing of a motion for such relief in accordance with

the Court Rules, with notice to plaintiff and an opportunity to respond.

      In sum, we vacate the court's order and remand for the court to provide

plaintiff with an opportunity to challenge the amount of the GAL's billings,

and for the court to determine the amount due to the GAL from plaintiff. The

court shall also determine the amount of plaintiff's monthly repayment

obligation based on plaintiff's ability to pay. Given the passage of time, the

court shall permit the parties to amend and supplement their submissions on

those issues.   The court shall conduct such proceedings as it determines

appropriate based on the submissions of the parties. The court shall also make




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appropriate findings of fact and conclusions of law supporting its decision.

See R. 1:7-4.

      Because the judge who decided this matter in the first instance made

credibility determinations, we are constrained to direct that the remand be

assigned to a different judge. See R.L. v. Voytac,  199 N.J. 285, 306 (2009)

(stating that "[b]ecause the trial court previously made credibility findings, we

deem it appropriate that the matter be assigned to a different trial court ").

Nothing in this opinion shall be construed as a determination of the merits of

the GAL's fee request, plaintiff's challenge to any of the claimed fees, or

plaintiff's ability to pay any particular monthly amount for the sum determined

to be due to the GAL.

      Vacated and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.




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