U.G. v. T.S.

• Court: New Jersey Superior Court Appellate Division
• Decided: December 21, 2023
• Docket: A-1803-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1803-21

U.G.,

Plaintiff-Respondent,

v.

T.S.,1

Defendant-Appellant. _______________________

Submitted December 5, 2023 – Decided December 21, 2023

Before Judges Sumners and Perez Friscia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0956-21.

Dwyer, Bachman, Newman & Solop, attorneys for appellant (Elliott Steven Solop, of counsel and on the briefs; Lauren Conway, on the briefs).

U.G., respondent pro se.

PER CURIAM

1 We use initials to protect the confidentiality of the victim. R. 1:38-3(d)(10). Defendant T.S. appeals from the November 4, 2022 Family Part order

awarding plaintiff U.G. attorney's fees under the Prevention of Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues the order

awarding attorney's fees was unreasonable and excessive. Our review of the

record demonstrates the judge's award of fees is supported by sufficient credible

evidence, but we remand for the trial judge to issue an amended judgment

reducing $51 from the award amount for paraprofessional work which lacked a

certification of services per Rule 4:42-9(b).

The parties were married in 2010 and had two children. On June 24, 2021,

plaintiff filed a domestic violence complaint seeking a temporary restraining

order (TRO), which was granted. On July 14, defendant filed a domestic

violence cross-complaint and was also granted a TRO. A four-day bench trial

ensued which included five witnesses and over fifty exhibits.

On August 30, the judge entered a final restraining order (FRO) against

defendant after issuing an oral decision. The judge found defendant committed

the predicate acts of assault and criminal mischief, and determined there was a

need to protect the plaintiff from future acts of domestic violence. Defendant's

application for an FRO was denied.

A-1803-21 2 Following the judge's decision, plaintiff's counsel orally moved for

attorney's fees advising that an application would be submitted. In August 2021,

T.S. filed for divorce. In September 2021, plaintiff filed a certification of

services seeking $33,105.96 in attorney's fees. On November 4, the judge issued

an order, with an accompanying nine-page written statement of reasons, which

granted attorney's fees and costs for the reduced amount of $31,354.12.

The judge acknowledged that, "[t]o determine the reasonableness of the

attorney fees and costs, the court must consider the factors set forth in [RPC]

1.5." First addressing RPC 1.5(a)(3) and (8), she found "[p]laintiff's

attorney[s] . . . submitted an affidavit of services" and that the charged "rate of

$325.00 per hour" was "reasonable." Further, the judge found the attorneys

practiced family law and the "hourly rate[s] charge[d]" were "consistent with

the fees customarily charged in Morris County for similar legal services and

consistent with the experience, reputation, and ability of plaintiff's counsel."

The judge "also note[d] that the fee arrangement was in writing as required by

[RPC] 1.5(b)." Regarding the "paralegal fee of $125.00 per hour and the

secretarial rate of $85.00 per hour," the judge found the reasonableness of the

amounts charged could not be ascertained because plaintiff's counsel provided

"no information . . . about the qualifications of either person performing these

A-1803-21 3 functions." Thus, the judge declined to award the paraprofessional fees

requested.

The judge found under RPC 1.5(a)(1), (5), and (7) that "due to the

contentious nature of the litigation and the history of domestic violence between

the parties, the case required significant time and labor." Further, "the

interrelation between the matrimonial and domestic violence matters and

potential immigration consequences required a level of skill and experience to

litigate this matter." The judge reasoned because "domestic violence matters

[we]re expedited, there were time limitations imposed on counsel."

Under RPC 1.5(a)(4), the judge determined "the time spent on the case by

plaintiff's attorneys was reasonable, particularly considering the favorable result

achieved for plaintiff." The judge observed that the evidence presented in the

cross-TROs was intertwined "in support of and defense of each restraining order

application," and the matters were tried together for "judicial economy." She

concluded that "[t]he time spent by plaintiff's counsel to defend the allegations

of defendant against plaintiff in her application for a restraining order cannot be

separated from the efforts expended by plaintiff's counsel to prosecute his

application for a[n] [FRO]."

A-1803-21 4 The judge concluded that "all fees incurred by plaintiff to prosecute his

application for a[n] [FRO]" were reasonable except the unsupported amount for

paraprofessional fees and attorney's fees which were unrelated to the domestic

violence matter. The judge noted counsel's certification "indicate[d] that the

total bill for legal services for the domestic violence matter [was] $33,105.96,

including $5.71 for fees and expenses." However, after reviewing the bills, the

judge found "that $1,070.00 of fees listed . . . for work done by [counsel] pertain

to the matrimonial, immigration and criminal matters that [we]re separate from

the domestic violence restraining order trial." Further, the judge deducted the

amount of "[$]681.84 in fees billed by the paralegal and secretary." Plaintiff

was awarded "$31,354.12 in compensatory damages for reasonable attorney fees

and costs incurred directly from the domestic violence matter resulting in the

issuance of an" FRO.

On appeal, plaintiff challenges the judge's award of attorney's fees,

arguing the amount was excessive and unreasonable. In arguing for an award

reduction of $13,715, plaintiff challenges both the attorney's fees amount, and

paraprofessional charges which were not deducted. Defendant does not

challenge the issuance of the FRO.

A-1803-21 5 An award of fees in a domestic violence action "rest[s] within the

discretion of the trial judge." McGowan v. O'Rourke, 391 N.J. Super. 502, 507-

08 (App. Div. 2007). "We will disturb a trial court's determination on counsel

fees only on the 'rarest occasion,' and then only because of clear abuse of

discretion" Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)

(quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)), or "a clear error in

judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010). Our

Supreme Court has "cautioned trial courts 'to evaluate carefully and critically

the aggregate hours and specific hourly rates advanced by counsel for the

prevailing party' and . . . not to 'accept passively the submissions of counsel.'"

Hansen v. Rite Aid Corp., 253 N.J. 191, 215 (2023) (quoting Rendine, 141 N.J.

at 335). Where a trial judge correctly applies the case law, statutes, and court

rules governing attorney's fees, the fee award is entitled to our deference. See

Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000); see also Pressler &

Verniero, Current N.J. Court Rules, cmt. 4.7 on R. 5:3-5 (2024).

The PDVA authorizes an award of "reasonable attorney's fees." N.J.S.A.

2C:25-29(b)(4). The PDVA provides for attorney's fees "to avoid a chilling

effect on the willingness of domestic violence victims to come forward with

their complaints." M.W. v. R.L., 286 N.J. Super. 408, 411 (App. Div. 1995). If,

A-1803-21 6 after considering the factors in Rule 4:42-9(b) and RPC 1.5(a)(1) to (8), the

"court finds that the domestic violence victim's attorney's fees are reasonable,

and they are incurred as a direct result of domestic violence, then a court, in an

exercise of its discretion, may award those fees." McGowan, 391 N.J. Super. at

508. "[D]eterminations by trial courts [regarding legal fees] 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, 141 N.J. 317).

The judge began her analysis by correctly acknowledging N.J.S.A. 2C:25-

29(b)(4) expressly permits an award of reasonable attorney's fees and out-of-

pocket expenses as elements of monetary compensation for losses sustained as

a direct result of domestic violence. She properly considered and applied the

factors under Rule 4:42-9 and RPC 1.5(a) in awarding fees to plaintiff. We

observe the judge reviewed the attorney's fees application after presiding over

the four-day trial which had five witnesses. The judge noted the complexity of

issues in the case and the extensive history between the parties which protracted

the trial. We observe a party seeking attorney's fees must establish

reasonableness under the RPC 1.5(a) factors. Seigelstein v. Shrewsbury Motors,

Inc., 464 N.J. Super. 393, 405-06 (App. Div. 2020).

A-1803-21 7 Under RPC 1.5(a)(3) and (8), the judge found plaintiff's attorneys' fixed

hourly rate, pursuant to the retainer agreement, was reasonable and customary

for family practitioners in the County. Further, the attorneys' years of

experience and practice in family law warranted the hourly fee amount charged.

Regarding RPC 1.5(a) factors (1), (5), and (7), the judge found "the

contentious nature of the litigation and the history of domestic violence between

the parties" required "significant time and labor." The record demonstrates, in

addition to the high volume of evidence, the judge noted counsel had to ensure

that multiple "audio recordings of conversations in Hindi . . . were transcribed

into English." The judge found because the domestic violence matter was

"expedited, there were time limitations imposed on counsel" to prepare.

Considering this backdrop, the judge further found the time counsel spent "was

reasonable, particularly considering the favorable result achieved for plaintiff"

under RPC 1.5(a) factor (4). She found highly relevant the "mosaic of the

relationship and the history of domestic violence between the parties" and the

necessity to hear the cross-TROs together because they were inextricably

intertwined. The judge's cogent findings are amply supported by the record.

In analyzing the reasonableness of the fees, the judge conducted a detailed

examination of each billing entry. The judge found plaintiff's counsel provided

A-1803-21 8 sufficiently descriptive entries. Although plaintiff requested $33,105.96 in fees,

the amount was reduced to exclude unsupported charges. The judge reduced the

attorney's fees charged for twenty-two billing entries for unrelated work in the

amount of $1,070 and precluded eleven billing entries for paraprofessional fees

in the amount of $681.84. It is undisputed that an attorney's fees application

that includes compensation for paraprofessional services rendered requires,

pursuant to Rule 4:42-9(b), a certification providing "a detailed statement of the

time spent and services rendered by paraprofessionals, a summary of the

paraprofessionals' qualifications, and the attorney's billing rate for

paraprofessional services to clients generally." The judge correctly reasoned

that because a paraprofessional certification was not provided, the

reasonableness of the charges could not be determined. The judge therefore

reduced the award to $31,354.12 for fees found to be "reasonabl[y] . . . incurred

directly from the domestic violence matter resulting in the issuance of a [n]

[FRO]."

We reject defendant's contention that the judge erroneously awarded an

unreasonable and excessive amount of attorney's fees. Defendant's contention

that the attorney's fees charged were unrelated and duplicative is unsupported

by the record. Again, the judge presided over the trial, was familiar with

A-1803-21 9 counsels' representation, and completed a detailed review of each billing entry;

therefore, we see no reason to disturb the judge's reasonableness findings.

However, as argued by defendant, the judge precluded all

paraprofessional fees, and a review of the billing entries yields a clerical error

in a single missed charge not deducted. As we have noted, the judge found all

paraprofessional fees were to be deducted because "plaintiff did not sustain his

burden of proof on the reasonableness of the rate of the paralegal and secretary"

fees charged "due to [a] lack of information on their qualifications."

Accordingly, the single missed charge for secretarial work, completed on July

26 for $51, should have been deducted. Defendant's request for a deduction for

a paraprofessional charge from August 31 for $62.50 is unavailing because that

entry was considered and deducted in the judge's analysis of the attorneys'

entries. As such, based on the judge's detailed findings, the paraprofessional

entry for $51 shall be reduced from the award.

To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded only for entry of a

corrected judgment in the amount of $31,303.12. We do not retain jurisdiction.

A-1803-21 10