I.L.R. VS. R.T.R. IN THE MATTER OF ALEXANDER H. CARVER, III (FM-02-1634-13, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3451-16T4

I.L.R.

Plaintiff,

v.

R.T.R.,

Defendant-Appellant.
_____________________________

IN THE MATTER OF ALEXANDER H.
CARVER, III,

Respondent.
_____________________________

Argued May 24, 2018 – Decided June 28, 2018

Before Judges Reisner and Mitterhoff.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen
County, Docket No. FM-02-1634-13.

R.T.R., appellant, argued the cause pro se.

Alexander H. Carver, III, argued the cause for
respondent (Harwood Lloyd, LLC, attorneys;
Alexander H. Carver, III, of counsel and on
the brief; Eileen P. Kuzma, on the brief).

PER CURIAM
 Appellant R.T.R. appeals from the March 17, 2017 Family Part

order granting respondent Alexander H. Carver, III, counsel fees

for his service as defendant's guardian ad litem. We affirm.

On February 1, 2013, plaintiff I.L.R. filed a divorce

complaint against appellant. Appellant's then counsel filed an

answer. Shortly thereafter, however, appellant terminated his

relationship with his counsel, and proceeded pro se; notably,

appellant is an attorney, but he has never practiced family law.

On July 22, 2014, the Family Part judge presiding over the

divorce action sua sponte appointed Carver as guardian ad litem

(GAL) for appellant because he "suffered a brain injury [o]n or

about July 27, 2011, which has prevented him from participating

in his divorce action in a timely manner." The order also stated

that Carver, would "be compensated for his services at an hourly

rate of $400.00." The judge selected Carver based on his extensive

experience in family law. The order also authorized respondent

to:

negotiate on [d]efendant's behalf, settlement
of the issues ancillary to the parties'
divorce including but not limited to custody,
parenting time, spousal support, child
support, equitable distribution, counsel fees
and any other ancillary issues relating to the
parties' anticipated divorce . . . . [as well
as] enter into a final agreement . . . .

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 In August 2014, respondent assisted appellant in retaining

counsel, Mark P. McAuliffe, Esq., to represent him in his divorce

action. Respondent was relieved as GAL in August 2015. On January

27, 2016, however, after the trial judge granted McAuliffe's motion

to be relieved as counsel, the judge re-appointed respondent as

GAL for appellant.

On or about October 18, 2016, plaintiff and appellant reached

a settlement, and on November 16, 2016, the judge entered a dual

final judgment of divorce. The judge entered an amended final

judgment of divorce on February 3, 2017.

On February 16, 2017, respondent submitted a certification

in support of his counsel fee application. Respondent submitted

an itemized list of hourly services expended on R.T.R.'s behalf

in support of his application. R.T.R., acting pro se, opposed the

counsel fee application in multiple submissions to the court.

On March 17, 2017, the Family Part heard oral argument, and

on the same date granted respondent's motion and awarded him a

total of $50,049.90 in attorney's fees and costs.1 The judge

observed that the matter was highly contentious, complex, and

spanned several years. She noted she was intimately familiar with

1
After reviewing the parties' submissions, the judge reduced
respondent's counsel fees request by $1,200. Of the total sum,
R.T.R. had already paid $23,747.86, leaving a balance of $26,302.04

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the case having "sat with [it] from beginning to end." The judge

also found respondent's submissions persuasive, stating, "I've

received [respondent's] certification of services, which carefully

describe[s] the services performed on a day-to-day basis. I've

read [R.T.R.'s] response where [he] dispute[s] some of the services

raised. I'm making a finding that the certification satisfies the

appropriate rules." The judge further ordered these fees be paid

out of R.T.R.'s equitable distribution. This appeal ensued.

On appeal, appellant makes the following arguments : (1) the

judge erred in awarding respondent counsel fees because under Rule

5:3-5(c), fee-shifting only applies to the parties to the action,

and therefore either: (a) plaintiff was responsible for

respondent's counsel fees, or (b) the Family Part erroneously

exercised jurisdiction over the matter; (2) the judge erred in not

holding a plenary hearing; (3) respondent failed to act as a GAL,

but instead acted as a legal advisor; and (4) the judge erred in

awarding respondent counsel fees because his fees were "neither

reasonable nor necessary."

I. Whether the Family Part properly exercised jurisdiction
over respondent's counsel fee application.

Appellant first argues that Rules 4:42-9 and 5:3-5 only permit

a counsel fee award to be paid to a party in the action, and

therefore, the judge erred in awarding respondent, a non-party,

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counsel fees. Thus, appellant argues the court should have

required plaintiff to pay respondent's counsel fees.

Alternatively, appellant argues that the court should have

required respondent to file a separate action seeking his counsel

fees in the Law Division.

As a general rule, an attorney may not obtain a counsel fee

award against his or her own client in a family action. Cohen v.

Cohen, 146 N.J. Super. 330, 337 (App. Div. 1977)(quoting R. 4:42-

9(a)(1)) ("Appellant [improperly] suggests [Rule 4:42-9(a)(1)]

authorizes the court to fix the fee to be paid by any party to his

[or her] own attorney. Not so. The rule is concerned with

allowances to other parties — not one's own counsel.").

Rule 4:42-9(7), however, does allow for an award of fees

"[a]s expressly provided by these rules with respect to any

action." Rule 4:26-2(b)(4) provides the "[t]he court may appoint

a guardian ad litem for a minor or alleged mentally incapacitated

person on its own motion." Pursuant to the rule, the trial court

clearly had the authority to appoint a GAL for appellant based on

his representation to the court that his brain injury prevented

him from focusing or effectively prosecuting his divorce action.

Rule 4:26-2(c) expressly permits an appointed GAL to apply for an

allowance of fees on notice to all parties. Rule 4:86-4(e)

provides that "[t]he compensation of the . . . guardian ad litem,

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if any, may be fixed by the court to be paid out of the estate of

the alleged incapacitated person or in such other manner as the

court shall direct." Generally, a GAL's fees are paid by the

alleged incapacitated party. See Julius v. Julius, 320 N.J. Super.

297 (App. Div. 1999).

Because the trial court's fee award was expressly authorized

by Rule 4:26-2(b)(4), Rule 4:26-2(c), and Rule 4:86-4(e), the

trial court did not err in awarding the GAL counsel fees.

II. Whether the judge abused her discretion by not holding a
plenary hearing and in concluding the fees sought were
reasonable.

Appellant next contends the judge violated his due process

rights by denying his request for a plenary hearing and the

opportunity to cross-examine respondent. Specifically, appellant

asserts respondent's counsel fee application was "unreasonable and

unnecessary . . . [and] manifestly foundationless, meritless,

unethical, illegal and/or fraudulent."

"Our Supreme Court has 'strongly discourage[d] the use of an

attorney-fee application as an invitation to become mired in a

second round of litigation." Triffin v. Automatic Data Processing,

411 N.J. Super. 292, 308 (App. Div. 2010) (quoting Furst v.

Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004)). Therefore, "[a]

plenary hearing should be conducted only when the certifications

of counsel raise material factual disputes that can be resolved

6 A-3451-16T4
solely by the taking of testimony." Furst, 182 N.J. 1 , 24. "Such

hearings 'will be a rare, not a routine, occurrence.'" Ibid.; see

also Jacobitti v. Jacobitti, 263 N.J. Super. 608, 619 (App. Div.

1993) (finding no need for an "extensive and time-wasting hearing"

on counsel fees in a matrimonial action). "As such, the trial

courts have 'wide latitude in resolving attorney-fee

applications,' and appellate courts will not disturb the decision

to deny a plenary hearing unless there is a 'clear abuse of

discretion.'" Id. at 619 (quoting Furst, 182 N.J. at 25). Rule

4:42-9(b) "implicitly suggests that an affidavit is sufficient to

determine the amount of attorney's fees." Triffin, 411 N.J. Super.

at 309.

In this case, respondent submitted a certification in support

of his counsel fee application that conformed with the requirements

of Rule 4:42-9(b) and R.P.C. 1.5(a). The judge found respondent's

submission persuasive. She found that appellant protracted the

litigation by insisting on taking unreasonable positions with

regard to settlement. The judge noted that appellant had expressed

satisfaction with respondent's services. In addition, the judge

considered all of appellant's opposing papers, which raised

virtually the same objections that are presented on this appeal.

The judge rejected appellant's assertion that the fee

certification contained inaccurate or fraudulent

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misrepresentations. Having presided over the case from its

inception, the trial judge was in the best position to evaluate

the reasonableness of the attorney's fees sought by respondent.

This was not the rare case where testimony was necessary to resolve

material issues of fact. We therefore find no abuse of discretion

in the court's awarding respondent counsel fees without a plenary

hearing. For the same reasons, the judge did not abuse her

discretion in finding that the fees sought were reasonable in

light of the length and complexity of the case.2

The remaining issues raised by appellant concerning the role

of the GAL and the alleged bias of the trial judge do not have

sufficient merit to warrant discussion in a written opinion. Rule

2:11-3(e)(1) (E).

Affirmed.

2
In his brief, appellant takes issue with the judge's order
appointing him a GAL because "there was absolutely no evidence
that [d]efendant was 'mentally incapacitated' . . . ."
Appellant's notice of appeal and case information statement,
however, cite only the March 17, 2017 order awarding attorney's
fees and did not mention or attach the judge's July 22, 2014 order
appointing respondent as GAL. Because the record lacks
documentation of transcripts or findings regarding defendant's
alleged incapacitation, that issue is not properly before us and
we will not address the court's decision appointing a GAL for
appellant. See Rule 2:5-1(f)(2)(c); Rule 2:5-3.

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