2017 NJSBA ANNUAL MEETING

Counsel Fees: Yes, You Can Get Paid

Co-Sponsored by the Family Law Section

Moderator/Speaker: Ronald G. Lieberman, Esq., Officer of Family Law Executive Committee

Fellow of American Academy of Matrimonial Lawyers, New Jersey Chapter

Cooper Levenson Attorneys at Law, Cherry Hill

Sheryl Seiden, Esq.

Seiden Family Law, LLC, Cranford

Speakers:

Hon. Peter J. Melchionne, P.J.F.P., Bergen County

Hon. Marcella Matos Wilson, J.S.C., Essex County

Robin C. Bogan, Esq.

Pallarino & Bogan, LLP, Morristown

Family Law Section Executive Committee John E. Finnerty, Esq., Former Chair of the Family Law Section

Finnerty Canda & Concannon, PC, Fairlawn

Certified Matrimonial Lawyer

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Counsel Fees in Domestic Violence Matters

By Sheryl J. Seiden, Esq.1

A victim of domestic violence is not only entitled to protections under the

Prevention of Domestic Violence Act, but they are also entitled to compensatory damages

resulting from the act of domestic violence. When a Final Restraining Order is entered,

victims are protected not only from further physical and emotional abuse, but they can

also be compensated for the monetary losses they suffered as a direct result of the

domestic violence. Counsel fees are one type of compensatory damages that can be

awarded to a victim of domestic violence. Similarly, a defendant who was wrongfully

accused of domestic violence who prevails at a final hearing can also be awarded counsel

fees from the alleged victim. The right to be awarded counsel fees can be used as a

deterrent to prevent domestic violence as well as abuse of the domestic violence statute.

This article will provide an overview of the practice and procedure surrounding counsel

fee applications in domestic violence matters.

1 Sheryl J. Seiden, Esq. is founding partner of Seiden Family Law, LLC in Cranford. Sheryl is an officer of the Family Law Section of the NJSBA and a fellow of the American Academy of Matrimonial Lawyers – NJ chapter. She is a frequent lecturer for ICLE on many hot topics affecting the practice of family law. Sheryl would like to thank Shari Lee Genser, Esq., for her assistance in preparing this article. Shari joined Seiden Family Law in January 2017. She previously was an associate at a boutique family law firm in Morristown, New Jersey and prior to that she was a Staff Attorney at Essex-Newark Legal Services. Shari clerked for the Honorable Nancy Sivilli, of the Superior Court of New Jersey, Chancery Division, Family Part, County of Essex. Following her clerkship, Shari obtained funding as an Equal Justice Works Fellow to develop a teen dating violence prevention project at Essex-Newark Legal Services. During her two year fellowship, Shari provided advocacy to victims of domestic violence in all areas of family law and performed extensive community outreach in the area of teen dating violence.

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Counsel Fees In Domestic Violence Matters Differ From Counsel Fees in Divorce Actions

The New Jersey Court Rules differentiate between attorney fee allowances in

family actions, which are governed by the factors set forth in Rule 5:3-5(c), and those

where an award of attorney’s fees is expressly permitted by statute as provided for in R.

4:42-9(a). When representing a victim in a domestic violence matter, it is important for

practitioners to be aware that the standard for an application of counsel fees in the

domestic violence matter differs from the standard for counsel fee applications in other

family part matters. McGowan v. O’Rourke, 391 N.J. Super. 502, 507-508 (App. Div.

2007) (affirming an award of counsel fees to a victim of domestic violence where the trial

court did not review the factors set forth in R. 5:3-5(c) and acknowledging that a fee award

in a domestic violence matter is within the discretion of the trial court).

The reason that the statutory factors detailed in R. 5:3-5(c) are not pertinent in a

domestic violence matter is because the Prevention of Domestic Violence Act specifically

provides that victims of domestic violence who are successful in obtaining a Final

Restraining Order may be awarded reasonable attorney’s fees and court costs as

compensatory damages. N.J.S.A. 2C:25-29(b)(4). The Appellate Division has further

held that the award of counsel fees to a victim of domestic violence for the successful

defense of a challenge to a Final Restraining Order on appeal is similarly governed by

this provision of the Prevention of Domestic Violence Act. Grandovic v. Labrie, 348 N.J.

Super. 193 (App. Div. 2002) (awarding attorney’s fees to a victim of domestic violence on

a defendant’s appeal from the entry of a Final Restraining Order).

The award of counsel fees to a victim in a domestic violence matter is discretionary.

McGowan v. O’Rourke, 391 N.J. Super at 508. In order to justify an award of attorney’s

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fees, the victim must demonstrate that the fees are a direct result of the domestic violence

and that they are reasonable. Schmidt v. Schmidt, 262 N.J. Super. 451, 454 (Ch. Div.

1992) (rejecting a defendant’s claim that the trial court needed to assess the plaintiff’s

needs and defendant’s ability to pay when considering a plaintiff’s application for counsel

fees). Counsel fee applications in domestic violence matters must be presented by way

of an affidavit which conforms with the requirements of Rule 4:42-9(b), which provides as

follows:

Except in tax and mortgage foreclosure actions, all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by R.P.C. 1.5(a). The affidavit shall also include a recitation of other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought. Thus, the family law practitioner can rely upon a traditional affidavit of services

when representing a victim in a domestic violence matter, but should remove any

argument as to the factors set forth in Rule 5:3-5(c) as those considerations are

inapplicable. Accordingly, when addressing counsel fees for a victim of domestic

violence, the court does not consider the victim’s ability to pay counsel fees. Wine v.

Quezada, 379 N.J. Super. 287, 293 (Ch. Div. 2005) (noting that to hold otherwise would

create a chilling effect on claims made by bona fide victims who might have the ability to

pay). Rather, counsel should focus upon the factors enumerated in R.P.C. 1.5(a), which

provides the test for the reasonableness of attorney’s fees. Those factors are as follows:

(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;

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(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; and

(8) whether the fee is fixed or contingent.

Another avenue for seeking counsel fees is provided by New Jersey’s frivolous

litigation statute. N.J.S.A. 2A:15-59.1. This statute provides for an award of attorney’s

fees to the prevailing party where either an action was commenced in bad faith, solely for

the purpose of harassment, delay or malicious injury, or the nonprevailing party knew, or

should have known, that the action was without any reasonable basis in law or equity and

could not be supported by a good faith argument for an extension, modification or reversal

of existing law. N.J.S.A. 2A:15-59.1(b).

In order to employ the frivolous litigation statute as a basis for the request for

counsel fees, the Court Rules require written notice to be served on the party alleged to

have violated the frivolous litigation rule. R. 1:4-8. Said notice must state that the

frivolous litigation rule is believed to have been violated, set forth the basis for that belief

with specificity, include a demand for withdrawal, and give notice that an application for

sanctions will be made within a reasonable time thereafter. R. 1:4-8(b). The application

for attorney’s fees pursuant to the frivolous litigation statute must be supported by an

affidavit, the contents of which are specified in the statute as follows:

(1) The nature of the services rendered, the responsibility assumed, the results obtained, the amount of time spent by the attorney, any particular novelty or difficulty, the time spent and services rendered by secretaries and staff, other factors pertinent in the evaluation of the services

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rendered, the amount of the allowance applied for, an itemization of the disbursements for which reimbursement is sought, and any other factors relevant in evaluating fees and costs; and

(2) How much has been paid to the attorney and what provision, if any, has been made for the payment of these fees in the future.

N.J.S.A. 2A:15-59.1(c).

In certain instances, the frivolous litigation statute may be employed by a victim of

domestic violence following the entry of a Final Restraining Order. For example, the

Appellate Division has held that, where a motion judge finds that a perpetrator of domestic

violence commenced litigation to dismiss a Final Restraining Order as a manifestation of

the perpetrator’s unhealthy desire to control or abuse the victim, the court should not

hesitate to use counsel fees or the frivolous litigation statute as a deterrent. Kanaszka v.

Kunen, 313 N.J. Super. 600 (App. Div. 1998) (noting that victims should not be forced to

repeatedly re-litigate issues, as that itself can constitute a form of abusive and controlling

behavior).

Counsel Fees To Successful Defendants In Domestic Violence Matters

Finally, it must be noted that the Prevention of Domestic Violence Act does not

make any allowance for the award of counsel fees to defendants. However, the Appellate

Division has held that litigants who successfully defend against the entry of a Final

Restraining Order in a domestic violence action can make an application for counsel fees

pursuant to the frivolous litigation statute. M.W. v. R.L., 286 N.J. Super. 408 (App. Div.

1995) (remanding for a determination of whether an award of counsel fees was

appropriate pursuant to the frivolous litigation statute but noting that a rule that awards

the prevailing party counsel fees would have a chilling effect of filing of domestic violence

matters). This application should only be made in the most egregious of circumstances,

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as where a purported victim has wrongfully initiated a domestic violence complaint based

upon perjured testimony.

The Use of MESP in Seeking Counsel Fees at Trial: Is There a Rhyme or Reason?

By: Ronald G. Lieberman, Esq.

All family law practitioners are aware of R.5:5-5 which discusses mandatory economic

mediation. But how many practitioners have used the recommendations which stem from an early

settlement panel (ESP) session in seeking attorney’s fees if the matter proceeded to a plenary

hearing or a trial? To the extent that practitioners have used them, have judges been receptive to

arguments that because the recommendations were or similar as to how the judge ruled, the judge

should assess counsel fees against the party who rejected the recommendations? This Article will

explore the use of ESP recommendations in seeking counsel fees.

R.5:3-5(c) discusses an award of attorney’s fees and reads that, among the other factors

that a court is to review, a court must consider “the reasonableness and good faith of the positions

advanced by the parties both during and prior to trial.” It is that factor which forms the basis for a

practitioner to seek counsel fees in the ESP process. But, what is the procedure by which an

attorney supplies the judge with those recommendations? Some structure is needed in order to

protect the sanctity of settlement which is the hallmark of the MESP process under N.J.R.E. 408.

One way of handling the submission of the recommendations from the panelists would be

to provide a sealed envelope containing the panel recommendations to the judge before the trial,

indicate to the judge not to open the envelope until the conclusion of the case, and after the case is

over and the court has ruled, let the court read them to see if they are the same or similar as to how

the court ruled. If so, counsel fees should be considered. Other than that situation, are there really

any other coercive aspects to a panel session or is it merely a dry run for the litigants and a process

to be endured?

CLAC 3957543.1 2

A review of case law by this author has revealed only one reported decision that discussed

the use of panel recommendations when one litigant rejected them. In the case of Kelly v. Kelly,

262 N.J. Super. 303 (Ch. Div. 1992), a party sought an award of attorney’s fees against a party

who rejected the MESP recommendations. The litigant seeking fees argued that the fees incurred

at trial were a direct result of the other party’s rejection of the MESP recommendation. Id. at 305.

In rejecting that position, the trial judge held that the moving party was not economically

disadvantaged and the other party did not act in bad faith. Ibid. The trial judge’s ruling implied

that using the early settlement panel recommendations as a way to seek fees on the basis of bad

faith would be a difficult argument to make because arguing bad faith

impl[ies] something more than a showing of a mistaken, unreasonable or frivolous

position (although the degree of unreasonableness may be such as to permit an inference

as to motive). It requires a party to have malicious motives, to be unfair, to desire to

destroy the opposing party, to use the court system improperly to force a concession not

otherwise available. Id. at 308.

Can a party have “malicious motives” in rejecting ESP recommendations? After all, it is

not as if the panel session is a mock trial. The panelists are volunteering their time, they have

multiple cases to panel during a session, and it is doubtful just how thorough a presentation can

actually be in about a half hour of panel time. So, can anyone blame a litigant for rejecting

recommendations which barely scratch the surface of the complexities of a case?

Interestingly, the Kelly case was from 1992, and predated the enactment of R.5:3-5 on

counsel fees by seven years, 1999. The Kelly judge noted that even if he was inclined to award

counsel fees, there were no court rules in existence at the time providing for them in matrimonial

matters. That gap in the law has since been rectified.

Regardless, the trial judge in Kelly held that the rejection of the MESP recommendations

“although very close to the ultimate determination made after trial, does not invoke the award of

CLAC 3957543.1 3

fees.” Id. at 310. The practitioner is then without hope as a result of the Kelly decision unless he

or she establishes “malicious motives,” right?

One would argue “no” if for no other reason than because the Kelly decision was entered

seven years before the creation of R. 5:3-5. Another valid reason for arguing that the Kelly

decision should not be taken as the “be all and end all” is that why else would there be an MESP

process if not to have some type of carrot and stick approach? Given that viewpoint, where does

rejection of the ESP recommendations actually fit in?

Bad faith became an all-important measuring stick for the award of counsel fees once R.

5:3-5 was enacted. In the 1999 decision of Chestone v. Chestone, 322 N.J. Super. 250 (App. Div.

1999) the Appellate Division held that a judge ruling upon a request for attorney fees must look at

the good faith and bad faith of both parties. In so holding, the Appellate Division determined that

the amount of fees to be awarded “should not be fixed simply by taking the total time assertedly

expended by counsel and by multiplying the total number of hours by the charges fixed in a retainer

agreement made between the requested party and counsel to which the charges the adverse party

never consented to or agreed.” Id. at 257. Instead, a trial judge is required to “critically review

the nature and extent of the services rendered, the complexity and difficulty of the issues

determined, and the reasonableness and necessity of the time spent by counsel and rendering their

legal service” Ibid. Ultimately, “success is not a prerequisite for an award of counsel fees.” Ibid.

So, given the holding in Chestone that the reasonableness and necessity of time spent by

the party must be assessed, is it possible an attorney to tie a party’s rejection of the

recommendations to the necessity of time devoted to the issues to be ruled on at trial?

CLAC 3957543.1 4

The answer may lie in dicta from Chestone which explains very clearly the difficulties that

matrimonial attorneys have in not only seeking fees at the trial level from the other side but in

collecting fees from his or her own clients, as follows:

We recognize that the nature of family litigation sometimes causes the litigants to

become emotionally involved. Unfortunately, on occasion, the emotional

involvement lead to acrimony. When those two factors are present the parties, on

occasion, permit their emotions and acrimony to predominate over reason. The

attorney, on the other hand, must be detached from emotion and acrimony. The

responsibility of an attorney is to be more than an advocate. The attorney must also

be a counsellor, to counsel and provide sound legal advice to his or her client

unaffected by emotion or acrimony. When an attorney see that protracted litigation

will be economically unfeasible due to the issues or amount in dispute and can

reasonably foresee that anticipated counsel fees are disproportionate to the amount

in dispute, or exceed it, the attorney is obliged to communicate that fact to the client.

The client is permitted to make an economically unwise decision. However, that

decision should be an informed one after receiving sound legal advice from the

attorney as to whether the continuation of the litigation, or that facet of the

litigation, is economically wise. Although the client may choose to make an

economically unwise decision, that decision may not be at the expense of the

adversary. Id. at 259.

The rejection of panel recommendations may be “economically unwise,” but does

that mean a trial was unnecessary? Not necessarily. The context of the reasons for the trial

was important in the unreported decision of Gall v. Gall, 2013 N.J. Super. Unpub. LEXIS

586 (App. Div. 2013). There, the trial judge assessed fees against the party rejecting the

recommendations and the Appellate Division affirmed the assessment in part because the

other had insisted upon proceeding to trial after rejecting the MESP panel

recommendations and the trial resulted in a finding similar to them. The trial occurred

merely because of the rejection and not because of newly developed facts.

Given this navigation of case law and court rules on the use of ESP

recommendations in seeking counsel fees, this author concludes that an attorney’s

arguments in this regard should be based upon the following:

CLAC 3957543.1 5

1. The good or bad faith of the party rejecting the recommendations,

including arguments that facts were unknown or had changed since the

panel session occurred.

2. Whether the decision to proceed to a plenary hearing or a trial was

economically unwise. In so deciding, it is important to gauge the costs

of a contested proceeding versus the potential economic benefit in doing

so. For example, did the rejecting party go to court over an amount in

dispute that was less than or slightly more than the counsel fees incurred

in order to do so?

3. Has the position of the accepting party changed at all since the panel

session occurred?

Even after those questions are posed, we are left with the original question posed

by this article --- is there any rhyme or reason to the use of panel recommendations? The

use of Panel recommendations by a judge hinges on whether the other factors set forth in

R. 5:3-5(c) have been met as opposed to a simple review of just the reasonableness of the

positions of the parties. After all, no case law holds that reasonableness or good/bad faith

is the overarching or the most important factor in awarding counsel fees. A party can lose

at trial and still be awarded counsel fees. As always, the bounds of advocacy of

practitioners are limited merely by their imagination and their ethical zeal.

Robin C. Bogan is the co-founding Partner of Pallarino & Bogan,

L.L.P in Morristown, New Jersey. Ms. Bogan is a Certified

Matrimonial Law Attorney and her practice is exclusively devoted

to family law and related matters.

Ms. Bogan is the Immediate Past President of the Morris County

Bar Association and a member of the Family Law Committee. Ms.

Bogan received the Professional Lawyer of the Year Award for

Morris County for 2013 from the New Jersey Commission on

Professionalism in the Law.

Ms. Bogan is a member of the New Jersey State Bar Association

Family Law Section Executive Committee and is currently the Co-

Chair of the Section’s Legislative Subcommittee. She is also a

barrister for the American Inns of Court, Family Law Inn.

Ms. Bogan received her J.D. in June 1996 from Seton Hall

University School of Law. She received her B.A. degree from the

University of Richmond in May 1993. She served as a judicial law

clerk for the Honorable Thomas H. Dilts, in the Family Part of

the Superior Court of New Jersey, in Somerset County from 1996 to

1997.

Ms. Bogan is a frequent lecturer on family law issues for ICLE,

the New Jersey Family Law Inns of Court and the Morris County Bar

Association. Her articles on family law issues have appeared in

several professional publications including the New Jersey

Lawyer, the New Jersey Family Lawyer, and Family Advocate.

Ronald G. Lieberman is the Chair of the Family Law Practice Group with the firm of Cooper

Levenson, PA in Cherry Hill, New Jersey. He is Certified by the Supreme Court of New Jersey

as a Matrimonial Law Attorney, is a Fellow with the American Academy of Matrimonial

Lawyers, and is Board Certified Family Trial Lawyer by the National Board of Trial Advocacy.

His practice is limited to family law issues, including matrimonial law, divorce, child custody,

child support, parenting time, domestic violence, and appellate work.

Admitted to practice in New Jersey, New York and Pennsylvania, Mr. Lieberman will be

President-Elect of the Camden County Bar Association; is Co-Chair of the Association’s Family

Law Committee; and Secretary of the New Jersey State Bar Association Family Law Section. He

is also a years-long member of the Supreme Court’s Family Law Practice Committee.

A former Master of the Thomas S. Forkin Family Law American Inns of Court, Mr. Lieberman

has lectured on family law topics for ICLE, the New Jersey Association for Justice, Sterling

Educational Services, the National Business Institute and the New Jersey State, Burlington

County and Camden County Bar Associations. He is Executive Editor of the New Jersey Family

Lawyer, has authored 28 articles and columns on family law topics, and has been quoted in the

Courier Post, U.S. News and World Report, The New York Times and CBS 3 Philadelphia.

Mr. Lieberman received his B.A. from University of Delaware and his J.D. from New York Law

School. He was Law Clerk to the Honorable F. Lee Forrester, P.J.F.P. (Ret.).

CLAC 3464103.1

Governor Jon Corzine appointed honorable Peter J. Melchionne in 2008 after practicing law for twenty-

five years. Initially, he was assigned to the Domestic Violence calendar in which he served for 18 months.

He has presided over the CIC calendar since 2008, as well as numerous FD cases. For the last seven years

he handled predominately pre and post judgment divorce. He is currently the Presiding Judge of the

Family Part in Bergen County, appointed in May of 2015. He now presides over the FM and CIC calendars,

and conducts daily Intensive Settlement Conferences in a multitude of dockets. Judge Melchionne has

appeared on various panels at the annual and mid-year meeting of the NJSBA and other organizations, on

a wide range of topics. He is also on the faculty of Judicial College with primary responsibility for the

Judiciary’s Family Case Digest. He graduated Seton Hall University in 1979 with a degree in economics,

and Seton Hall University Law School in 1983 Cum Laude.