IN THE MATTER OF THE ADOPTION OF A CHILD BY M.E.B. AND K.N. M.E.B. AND K.N. VS. S.D.G. AND R.C.N.-B. (FA-14-0051-15 AND FD-14-0059-16, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 16, 2018
• Docket: A-1446-16T3/A-1552-16T3
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1446-16T3 A-1552-16T3 IN THE MATTER OF THE ADOPTION OF A CHILD BY M.E.B. and K.N. ______________________________

M.E.B. and K.N.,

Plaintiffs-Appellants,

v.

S.D.G. and R.C.N.-B.,

Defendants-Respondents. _______________________________

Argued May 30, 2018 – Decided July 16, 2018

Before Judges Koblitz, Manahan and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Nos. FA-14-0051-15 and FD-14-0059-16.

Jason R. Melzer argued the cause for appellants (Cole Schotz, PC, attorneys; Joseph Barbiere and Jason R. Melzer, of counsel and on the brief; Neoma M. Ayala on the brief).

Jeffrey S. Mandel argued the cause for respondents (Law Offices of Jeffrey S. Mandel, LLC, attorneys; Jeffrey S. Mandel, of counsel and on the brief).

PER CURIAM Plaintiffs, paternal grandparents M.E.B. and K.N., filed an

adoption complaint seeking to adopt their granddaughter, E.G. E.G.

is the daughter of defendant S.D.G. and plaintiffs' son, defendant

R.C.N.-B. Plaintiffs received temporary custody of E.G., but

produced no evidence of abandonment and defendants did not consent

to the adoption. The complaint was ultimately dismissed for lack

of subject matter jurisdiction. During the pendency of this

action, plaintiffs filed a visitation complaint, which was also

contested by defendants. The visitation action was eventually

voluntarily dismissed by plaintiffs.

The trial court awarded attorney's fees to defendants as to

both actions, which is the sole issue on appeal. Because the

court did not abuse its discretion, we affirm.

I.

At the time the original adoption complaint was filed,

plaintiffs resided in Woodstock, New York. S.D.G. resided with

her parents in Mendham Township, New Jersey while R.C.N.-B.

initially resided with plaintiffs in Woodstock. R.C.N.-B. and

S.D.G. are not married to each other and were twenty-one and twenty

years old, respectively, when E.G. was born.

S.D.G. has retained custody of E.G. and resided at her

parents' residence with E.G. in Mendham since her birth. Both of

S.D.G.'s parents provided financial support to both E.G. and S.D.G.

2 A-1446-16T3 S.D.G.'s parents provided a nanny to assist in E.G.'s care. S.D.G.

enrolled E.G. in a daycare in Mendham. According to S.D.G.,

R.C.N.-B. assisted in the care of E.G., who stayed at plaintiffs'

residence in Woodstock approximately eight days per month since

October 2014.

S.D.G. suffers from bipolar disorder and is required to take

medication. S.D.G. admits that she stopped taking her medication

in late 2014 and began abusing alcohol. On January 2, 2015, she

admitted herself into the Carrier Clinic, a rehabilitation

facility in New Jersey, where she remained for four days. She

then admitted herself into a rehabilitation facility in Florida,

where she stayed for one month. While S.D.G. received treatment,

E.G. remained in the care of S.D.G.'s parents in Mendham.

According to S.D.G., the nanny became unavailable during this

time and plaintiffs offered their assistance in caring for E.G.

S.D.G. consented to E.G. spending time with R.C.N.-B. and

plaintiffs in Woodstock. While in the rehabilitation facility,

S.D.G. applied to a macrobiotic cooking school in Massachusetts

and enrolled in the two-and-a-half month program after returning

home from the facility. During this period, S.D.G. permitted E.G.

to spend time in Woodstock with R.C.N.-B. and plaintiffs.

According to plaintiffs, they began caring for E.G. on an "every

3 A-1446-16T3 other week schedule." S.D.G.'s parents also brought E.G. to

Massachusetts to spend time with S.D.G. for a few weekends.

On February 20, 2015, plaintiffs filed the adoption

complaint. The complaint contained allegations that since the

child's birth, plaintiffs had provided significant care and

financial support for her and defendants had not "substantially

provided care[] for the child independently." It also alleged

that defendant S.D.G. abandoned E.G. and was not reasonably likely

to be able to care for her because of mental health and alcohol

abuse issues. The complaint additionally contained allegations

that R.C.N.-B. had abandoned E.G.

On March 6, 2015, the trial court entered an order for a

preliminary and final hearing, and granted plaintiffs temporary

custody of E.G., pending the hearings. E.G. was declared a ward

of the court and the order permitted plaintiffs to take her to

their home in New York. According to R.C.N.-B., after he received

the order on March 12, 2015, he was involved in a verbal

altercation with his mother, K.N., which led K.N. to throw him out

of the Woodstock residence. R.C.N.-B. and S.D.G. attempted to

retrieve E.G., but the New York State Police informed them that

plaintiffs would have them arrested if they entered the property.

On March 18, 2015, defendants filed an ex parte order to show

cause seeking to: (1) vacate the March 6, 2015 order; (2) dismiss

4 A-1446-16T3 the Verified Complaint with prejudice; and (3) regain custody of

E.G.

On March 19, 2015, the trial court held an ex parte hearing

on the order to show cause. S.D.G. and R.C.N.-B. both testified

at the hearing; both stated that they did not abandon E.G. and did

not consent to plaintiffs' attempt to adopt their child. The

trial court considered both of them credible, and concluded

plaintiffs did not have standing. The court dismissed the adoption

complaint, vacated the order of temporary custody to plaintiffs

and returned legal and physical custody of E.G. back to S.D.G. and

R.C.N.-B.

Plaintiffs appealed and on January 29, 2016, we issued a

published opinion, In Re Adoption of Child ex rel. M.E.B., 444

N.J. Super. 83, 94 (App. Div. 2016), reversing the trial court's

order dismissing plaintiffs' complaint based on the ex parte nature

of the proceedings and remanded to a different judge.

On remand, defendants filed a motion to dismiss the adoption

complaint for lack of subject matter jurisdiction and standing.

On August 3, 2016, the trial court dismissed plaintiffs' complaint

for lack of subject matter jurisdiction and awarded defendants

attorney's fees and costs solely for the adoption action. In its

statement of reasons, the trial court explained that because

plaintiffs were not New Jersey residents and did not receive the

5 A-1446-16T3 child from an approved agency, the court lacked subject matter

jurisdiction over the action. The court based this conclusion on

New Jersey case law, stating that "the test for subject-matter

jurisdiction under the [Adoption Act] for nonresident plaintiffs

is that they must have received the child from an approved agency."

N.J.S.A. 9:3-42.

In its statement of reasons, the trial court also addressed

defendants' request for counsel fees and costs. The court awarded

counsel fees and costs to defendants and focused on their few

financial resources compared to plaintiffs. The court also noted

that plaintiffs filed this action in a court without subject matter

jurisdiction and therefore "forced [S.D.G.] to defend her

constitutional rights in this forum unnecessarily." The court

ordered defendants to provide an affidavit of services before

awarding an exact dollar amount of fees.

On August 31, 2016, defendants filed a certification of

services requesting fees of $115,133.59 relating solely to the

adoption action. On November 2, 2016, the trial court issued an

amended order and Statement of Reasons granting reasonable

attorney's fees and costs of $67,079.19. The court referenced the

August 3, 2016 order in which it found the following two issues

most compelling: "the financial resources available to both

parties, and the procedural outcome of the matter." The court

6 A-1446-16T3 reasoned that defendants could not afford their own legal

representation without depending on their parents and were forced

to defend their constitutional right to remain parents to their

child. The court also "found the case was unreasonably advanced"

and believed plaintiffs acted in bad faith because they knew E.G.

was not available for adoption. For these reasons, the court

awarded attorney's fees to defendants for the reduced amount of

$67,079.19.

II.

On July 27, 2015, before their adoption complaint was

dismissed, having not visited with E.G. for more than a year,

plaintiffs filed a complaint seeking visitation. The complaint

alleged that plaintiffs were the primary caretakers of their

grandchild until defendants "abruptly denied [p]laintiffs any

contact" with her. On September 29, 2015, defendants filed a

counterclaim seeking dismissal of the visitation action and

requesting an award of attorney's fees. On March 11, 2016, the

trial court denied without prejudice defendants' motion to dismiss

the visitation complaint and plaintiffs' cross-motion for

preliminary visitation.

On August 31, 2016, plaintiffs filed a motion to voluntarily

dismiss the visitation action with prejudice and without costs or

fees to either party. Defendants filed a cross-motion to dismiss

7 A-1446-16T3 the visitation action with prejudice and award reasonable

attorney's fees, submitting a certification of services seeking

$45,963.36 in attorney's fees.

The trial court awarded defendants $15,118.61 in attorney's

fees related to the visitation action. The court stated:

The reasons for granting counsel fees in connection with the [g]randparent [v]isitation [c]omplaint are substantially the same as those stated regarding the granting of attorney's fee[s] in the adoption matter. The [c]ourt also notes that a consent for dismissal would appear to have been a much more cost effective plan for ending this grandparent visitation matter rather than going through the trouble of a formal motion with briefs. [Defendants have] clearly demonstrated through this arduous proceeding that [they] would have acquiesced in dismissing this matter.

On January 4, 2017, the court submitted an amplification of

reasons as to the visitation action pursuant to Rule 2:5-1(b).

The court stated it was "extremely unlikely that [plaintiffs]

would have been able to satisfy the burden of proving that

visitation is necessary to avoid harm to the child."

Plaintiffs contend that the court erred in awarding fees for

the visitation action because it "improperly imputed the

[plaintiffs'] alleged bad faith in the adoption action to the

visitation action." According to plaintiffs, there was no evidence

8 A-1446-16T3 of bad faith in the filing of the visitation action as evidenced

by their decision to voluntarily dismiss the action.

Defendants ask this court to focus solely on the award of

attorney's fees in the visitation action and the amount of fees

in both actions. Defendants contend that the trial court properly

recited all the necessary factors that a court should consider in

a fee application and correctly applied the factors to their

situation. They argue that plaintiffs' argument that they relied

on their counsel's judgment regarding the existence of subject

matter jurisdiction does not negate the fact that they "pursued

litigation in bad faith and based on false representations."

Defendants point to the fact that plaintiffs obtained custody of

E.G. ex parte through the court, and then pushed R.C.N.-B. out of

their house when they served him with the order that granted them

custody.

III.

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 v. Pantzer, 141 N.J. 292, 317 (1995)).

9 A-1446-16T3 Appellate courts must intervene when a trial judge's determination

of fees is based on "irrelevant or inappropriate factors, or

amounts to a clear error in judgment" and is "not premised upon

consideration of all relevant factors." Masone v. Levine, 382

N.J. Super. 181, 193 (App. Div. 2005) (citing Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002)).

Pursuant to Rule 5:3-5(c), courts are permitted to award

attorney's fees in family actions. See R. 4:42-9(a). We accord

deference to the family courts because of their "special

jurisdiction and expertise in family matters." Cesare v. Cesare,

154 N.J. 394, 413 (1998).

Rule 5:3-5(c) sets forth nine factors courts must consider

in determining a fee allowance:

(1) the financial circumstances of the parties;

(2) the ability of the parties to pay their own fees or to contribute to the fees of the other party;

(3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial;

(4) the extent of the fees incurred by both parties;

(5) any fees previously awarded;

(6) the amount of fees previously paid to counsel by each party;

10 A-1446-16T3 (7) the results obtained;

(8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and

(9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c); see also Mani v. Mani, 183 N.J. 70, 94-95 (2005).]

Courts should consider "whether the party requesting the fees

is in financial need; whether the party against whom the fees are

sought has the ability to pay; the good or bad faith of either

party . . .; the nature and extent of the services rendered; and

the reasonableness of the fees." Mani, 183 N.J. at 94-95. Courts

do not need to enumerate every factor in reaching their

determination. Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div.

2013). However, a counsel fee award that is not supported by

adequate findings must be set aside. See Gordon v. Rozenwald, 380

N.J. Super. 55, 79 (App. Div. 2005).

"Fees in family actions are normally awarded to permit parties

with unequal financial positions to litigate (in good faith) on

an equal footing." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App.

Div. 2012) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch.

Div. 1992)). "[B]ad faith for counsel fee purposes relates only

to the conduct of the litigation . . . ." Mani, 183 N.J. at 95.

11 A-1446-16T3 IV.

We affirm the grant of counsel fees in both actions

substantially for the reasons set forth in Judge Louis S. Sceusi's

initial and amplified reasons set forth on August 3 and November

2, 2016, and January 4, 2017. We add only the following.

Plaintiffs make the point on appeal that they sought guidance

about jurisdiction ex parte by letter from the County Surrogate

prior to filing the adoption complaint. The ex parte nature of

that request minimizes its utility, as the facts set forth in the

complaint were disputed by the parents. Plaintiffs also contend

that it was defendants who prolonged the dismissal of the

visitation complaint by seeking counsel fees. The fact defendants

sought counsel fees is not an appropriate defense to starting

litigation that was unlikely to succeed.

Judge Sceusi was familiar with this litigation and had the

expertise to determine whether plaintiffs litigated merely with

the common ranker frequently evidenced in family matters, or with

an unfair and unrealistic determination to "save" their

granddaughter from her own parents. New Jersey has long accepted

that termination of parental rights followed by adoption is not a

method to provide children with a "better" home. In re Adoption

of Child by J.E.V., 442 N.J. Super. 472, 485-86 (App. Div. 2015).

12 A-1446-16T3 As Judge Sceusi stated, if plaintiffs were concerned about

the safety of their granddaughter in the care of her parents, the

proper avenue was to call the child protective services agency.

The courts are infrequently helpful in resolving intergenerational

conflict. And they are extremely costly. The counsel fees

awarded, only a portion of what was incurred by the parties, was

undoubtedly an unfortunate burden on plaintiffs, who reaped no

benefit from this misguided litigation.

Affirmed.

13 A-1446-16T3