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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0336-15T2
IN THE MATTER OF MARIA DELORES HELLER, an Alleged Mentally Incapacitated Person. ____________________________________
Submitted March 6, 2017 – Decided September 11, 2017
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-244-15.
Wolfberg & Wolfberg, LLC, attorneys for appellant/cross-respondent Maria Delores Heller (Matthew Wolfberg, of counsel and on the briefs).
Susan S. Harmon, respondent/cross-appellant pro se.
PER CURIAM
The appeal and cross-appeal in this unsuccessful guardianship
action involve the trial court's denial of compensation to a
guardian pendent lite and the fee award to her attorneys. Maria
Delores Heller, the alleged incapacitated person, appeals from an
order that required her to pay counsel fees to the attorneys who
represented the guardian pendente lite ("temporary guardian") as well as the premium for the temporary guardian's bond. The
temporary guardian cross-appeals from the same order, arguing the
court erred by reducing the fee her attorneys sought and by denying
her application for compensation. We have reviewed the trial
court's decisions and order for an abuse of discretion and found
none. We thus affirm the August 6, 2015 order in its entirety.
The underlying facts are essentially undisputed. Heller, a
septuagenarian during the guardianship proceedings, suffers from
late-stage Amyotrophic Lateral Sclerosis (ALS). She is bedridden
and requires round-the-clock medical care. On July 6, 2015, the
temporary guardian, a New York attorney and a former legal
associate of Heller's late husband, filed, through New Jersey
counsel, an order to show cause and a verified complaint. The
temporary guardian sought to have a court declare Heller
incapacitated and appoint her as permanent guardian.
In support of her application, the temporary guardian
submitted two physicians' certifications opining Heller suffered
from ALS, which rendered her mentally incapacitated and unable to
govern her own affairs. One physician concluded Heller needed a
feeding tube without which she was at a high risk of developing
aspiration pneumonia and slowly starving herself to death. In
addition to the physicians' certifications, the temporary guardian
2 A-0336-15T2 alleged Heller had withdrawn a large sum of money from a bank
account, prompting the bank to contact Adult Protective Services.
The court appointed counsel to represent Heller. On July 8,
2015, based on the physicians' certifications, the court appointed
the temporary guardian as pendente lite guardian of MDH's person
and property.1 The order vested the temporary guardian with the
authority to "arrange interim financial, social, medical or mental
health services" deemed necessary to address MDH's needs and avoid
substantial harm to her person or property. The order also
authorized the temporary guardian "to receive reasonable fees for
her services as well as reimbursement for reasonable expenses upon
approval of the [c]ourt [to be paid] from the estate."
On July 16, 2015, the temporary guardian filed an emergent
application to have Heller examined, and, if necessary, to have
doctors insert a feeding tube to save her life. The court entered
a consent order that required Heller's medical examination to take
place as soon as possible and authorized the temporary guardian
to approve the administration of life-saving medical intervention,
including the insertion of a feeding tube. After doctors examined
1 The July 8, 2015 order is an amended order. The temporary guardian represents the original order was entered on July 7, 2015.
3 A-0336-15T2 Heller, they discharged her from the emergency room, finding a
feeding tube was unnecessary.
A few days after Heller's examination, the temporary guardian
decided to withdraw her guardianship application. She represented
to the court that she no longer wished to continue as guardian
pendente lite for Heller "in any capacity." After hearing oral
argument and reviewing two new physicians' certifications
concluding Heller had the capacity to make decisions relating to
her medical care, the court dismissed the guardianship proceeding,
finding Heller had capacity and should be permitted to "die with
whatever dignity she so chooses to die with."
The court also relieved the temporary guardian of her duties
as pendente lite guardian. The court entered an implementing
order on July 23, 2015. The temporary guardian had thus served
in that capacity from July 8, 2015 to July 23, 2015, a total of
fifteen days.2 For her services, the temporary guardian sought
compensation of $44,973.66 and expenses of $3938.52. Her attorneys
sought fees of $35,946.25 and reimbursement of $1678.32 for
expenses.
2 The temporary guardian served for sixteen days if the day the court entered the July 8, 2015 amended order appointing her is counted, or seventeen days if July 7, 2015 is counted. See n.1, supra.
4 A-0336-15T2 The court denied the temporary guardian's application for
compensation, but awarded her attorneys $25,924.27, $23,000.00 of
which the court ordered reimbursed to the temporary guardian, who
had paid her attorneys that sum. The court also ordered Heller
to pay a bonding agency $1790 for the bond premium owed for the
bond the temporary guardian had posted.3
Heller paid the bond premium but not the temporary guardian's
counsel fees. Rather, she "appealed" the fee award to the trial
court, alleging the court had erred by awarding fees to the
temporary guardian's attorneys. Heller argued the attorneys were
unsuccessful, the court having dismissed the guardianship action.
She also argued the temporary guardian's motive in filing the
action was for personal gain. Lastly, she argued the attorneys'
fees were excessive.
A court has authority to fix compensation for a guardian ad
litem, his or her attorney, and appointed counsel under Rule 4:86-
4(e), which states: "The compensation of the attorney for the
party seeking guardianship, appointed counsel, and of the guardian
ad litem, 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." Rule 4:42-9, which enumerates actions
3 The court also awarded Heller's counsel fees and costs, a decision not challenged on this appeal.
5 A-0336-15T2 in which the award of fees are allowable, also authorizes such
fees: "In a guardianship action, the court may allow a fee in
accordance with R. 4:86-4(e) to the attorney for the party seeking
guardianship, counsel appointed to represent the alleged
incapacitated person, and the guardian ad litem." R. 4:42-9(a)(3).
Both rules vest the court with discretion to fix compensation;
the rules do not mandate that a court do so. A court has discretion
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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-0336-15T2
IN THE MATTER OF MARIA DELORES HELLER, an Alleged Mentally Incapacitated Person. ____________________________________
Submitted March 6, 2017 – Decided September 11, 2017
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-244-15.
Wolfberg & Wolfberg, LLC, attorneys for appellant/cross-respondent Maria Delores Heller (Matthew Wolfberg, of counsel and on the briefs).
Susan S. Harmon, respondent/cross-appellant pro se.
PER CURIAM
The appeal and cross-appeal in this unsuccessful guardianship
action involve the trial court's denial of compensation to a
guardian pendent lite and the fee award to her attorneys. Maria
Delores Heller, the alleged incapacitated person, appeals from an
order that required her to pay counsel fees to the attorneys who
represented the guardian pendente lite ("temporary guardian") as well as the premium for the temporary guardian's bond. The
temporary guardian cross-appeals from the same order, arguing the
court erred by reducing the fee her attorneys sought and by denying
her application for compensation. We have reviewed the trial
court's decisions and order for an abuse of discretion and found
none. We thus affirm the August 6, 2015 order in its entirety.
The underlying facts are essentially undisputed. Heller, a
septuagenarian during the guardianship proceedings, suffers from
late-stage Amyotrophic Lateral Sclerosis (ALS). She is bedridden
and requires round-the-clock medical care. On July 6, 2015, the
temporary guardian, a New York attorney and a former legal
associate of Heller's late husband, filed, through New Jersey
counsel, an order to show cause and a verified complaint. The
temporary guardian sought to have a court declare Heller
incapacitated and appoint her as permanent guardian.
In support of her application, the temporary guardian
submitted two physicians' certifications opining Heller suffered
from ALS, which rendered her mentally incapacitated and unable to
govern her own affairs. One physician concluded Heller needed a
feeding tube without which she was at a high risk of developing
aspiration pneumonia and slowly starving herself to death. In
addition to the physicians' certifications, the temporary guardian
2 A-0336-15T2 alleged Heller had withdrawn a large sum of money from a bank
account, prompting the bank to contact Adult Protective Services.
The court appointed counsel to represent Heller. On July 8,
2015, based on the physicians' certifications, the court appointed
the temporary guardian as pendente lite guardian of MDH's person
and property.1 The order vested the temporary guardian with the
authority to "arrange interim financial, social, medical or mental
health services" deemed necessary to address MDH's needs and avoid
substantial harm to her person or property. The order also
authorized the temporary guardian "to receive reasonable fees for
her services as well as reimbursement for reasonable expenses upon
approval of the [c]ourt [to be paid] from the estate."
On July 16, 2015, the temporary guardian filed an emergent
application to have Heller examined, and, if necessary, to have
doctors insert a feeding tube to save her life. The court entered
a consent order that required Heller's medical examination to take
place as soon as possible and authorized the temporary guardian
to approve the administration of life-saving medical intervention,
including the insertion of a feeding tube. After doctors examined
1 The July 8, 2015 order is an amended order. The temporary guardian represents the original order was entered on July 7, 2015.
3 A-0336-15T2 Heller, they discharged her from the emergency room, finding a
feeding tube was unnecessary.
A few days after Heller's examination, the temporary guardian
decided to withdraw her guardianship application. She represented
to the court that she no longer wished to continue as guardian
pendente lite for Heller "in any capacity." After hearing oral
argument and reviewing two new physicians' certifications
concluding Heller had the capacity to make decisions relating to
her medical care, the court dismissed the guardianship proceeding,
finding Heller had capacity and should be permitted to "die with
whatever dignity she so chooses to die with."
The court also relieved the temporary guardian of her duties
as pendente lite guardian. The court entered an implementing
order on July 23, 2015. The temporary guardian had thus served
in that capacity from July 8, 2015 to July 23, 2015, a total of
fifteen days.2 For her services, the temporary guardian sought
compensation of $44,973.66 and expenses of $3938.52. Her attorneys
sought fees of $35,946.25 and reimbursement of $1678.32 for
expenses.
2 The temporary guardian served for sixteen days if the day the court entered the July 8, 2015 amended order appointing her is counted, or seventeen days if July 7, 2015 is counted. See n.1, supra.
4 A-0336-15T2 The court denied the temporary guardian's application for
compensation, but awarded her attorneys $25,924.27, $23,000.00 of
which the court ordered reimbursed to the temporary guardian, who
had paid her attorneys that sum. The court also ordered Heller
to pay a bonding agency $1790 for the bond premium owed for the
bond the temporary guardian had posted.3
Heller paid the bond premium but not the temporary guardian's
counsel fees. Rather, she "appealed" the fee award to the trial
court, alleging the court had erred by awarding fees to the
temporary guardian's attorneys. Heller argued the attorneys were
unsuccessful, the court having dismissed the guardianship action.
She also argued the temporary guardian's motive in filing the
action was for personal gain. Lastly, she argued the attorneys'
fees were excessive.
A court has authority to fix compensation for a guardian ad
litem, his or her attorney, and appointed counsel under Rule 4:86-
4(e), which states: "The compensation of the attorney for the
party seeking guardianship, appointed counsel, and of the guardian
ad litem, 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." Rule 4:42-9, which enumerates actions
3 The court also awarded Heller's counsel fees and costs, a decision not challenged on this appeal.
5 A-0336-15T2 in which the award of fees are allowable, also authorizes such
fees: "In a guardianship action, the court may allow a fee in
accordance with R. 4:86-4(e) to the attorney for the party seeking
guardianship, counsel appointed to represent the alleged
incapacitated person, and the guardian ad litem." R. 4:42-9(a)(3).
Both rules vest the court with discretion to fix compensation;
the rules do not mandate that a court do so. A court has discretion
to decline to award a fee. Moreover, if a court in its discretion
chooses to award a fee, the court may consider counsel's lack of
success in determining what fee is reasonable. Cf. Szczepanski
v. Newcomb Med. Center, 141 N.J. 346, 355 (1995) (noting that the
method for calculating reasonable fees – a product of hours
reasonably expended on litigation times a reasonable hourly rate
– may be excessive if a plaintiff has achieved only partial or
limited success). "[F]ee determinations by trial courts 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).
Heller does not dispute the court's discretion to award fees
to the attorneys for the temporary guardian. Rather, she contends
the court abused its discretion because the temporary guardian's
"motive in being appointed guardian in this case [was] money," the
temporary guardian "misrepresented the mental state of Heller in
6 A-0336-15T2 her Verified Complaint in order to get appointed," and "[t]o
require Heller, who was found to be mentally competent, to pay
this amount of money for a legal proceeding that was dismissed
without a trial or plenary hearing [eighteen] days after its
inception is unconscionable."
The trial court determined the temporary guardian's
"application was brought in good faith . . . and not for
[plaintiff's] own gain." The court also determined "litigation
costs were necessary and could not be avoided." These findings
are supported by adequate, substantial, and credible evidence in
the record and are therefore binding on appeal. Triffin v.
Automatic Data Processing, Inc., 411 N.J. Super. 292, 305 (App.
Div. 2010) (citing Rova Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974)).
Nor do we find any abuse of discretion by the trial court in
the amount of fees it awarded. Attorneys seeking fees under the
actions enumerated in Rule 4:42-9 must file "an affidavit of
services addressing the factors enumerated by RPC 1.5(a)." R.
4:42-9(b). A judge considering a fee application in a guardianship
action should also consider the plaintiff's motivation in pursuing
the guardianship action, whether the plaintiff has a potential
interest in the incapacitated person's estate, and the financial
circumstances of both plaintiff and the alleged incapacitated
7 A-0336-15T2 person. In re Landry, 381 N.J. Super. 401, 410 (Ch. Div. 2005).
Of course, the court must also consider the reasonableness of the
hourly rate and the amount of time the attorneys "devoted to the
matter." Ibid.
Here, the court considered all of the foregoing factors as
well as the life-threatening situation extant when the temporary
guardian filed the guardianship application. The court determined
Heller's estate was substantial. These findings are amply
supported by substantial and credible evidence and therefore
should not be disturbed on appeal. Triffin, supra, 411 N.J. Super.
at 305.
Similarly, on the cross-appeal, we conclude the trial court
did not abuse its discretion by denying compensation to the
temporary guardian. As previously noted, the temporary guardian
served in that capacity for fifteen days, from July 8 to July 23,
2015; yet, she submitted a bill for services rendered from January
2, 2015 through July 29, 2015. Moreover, as the trial court
explained, the time the temporary guardian allegedly spent
performing certain services appears to be excessive, and the
temporary guardian billed for "attorney services" when she was
functioning not as an attorney, but a guardian pendente lite. The
temporary guardian is not licensed to practice law in the State
of New Jersey.
8 A-0336-15T2 The temporary guardian's application for compensation
included an extraordinary number of hours for which she did not
perform services as a temporary guardian, demonstrated excessive
time allegedly spent for other services, and apparently included
services for attorneys' fees to which she was not entitled. The
billing irregularities also called into question the application
for compensation that the court properly exercised its discretion
in denying it.
We have considered the parties' remaining arguments and found
them to be without sufficient merit to warrant further discussion.
R. 2:11-3(e)(1)(E).
Affirmed.
9 A-0336-15T2