On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County.
Michels, Bilder and Wallace. The opinion of the court was delivered by Michels, P.J.A.D.
Somerset-Sussex Legal Services (Legal Services) appeals from an order of the Chancery Division, Family Part, that directed it to pay the balance of the court appointed expert's fee incurred in representing defendant E.B. in this custody action instituted by the Division of Youth and Family Services (Division).
The Division sought temporary custody of E.B.'s minor son, R.J.B., because of E.B.'s history of mental illness and suicide attempts. The action was instituted under the provisions of N.J.S.A. 9:6-8.21 to 8.73, N.J.S.A. 30:4C-12 and R. 5:12-1 to 5. The trial court ordered E.B. to show cause why custody of R.J.B. should not be given to the Division and directed E.B. to undergo a psychological examination. Subsequently, D.W., E.B.'s boyfriend, was named as a defendant. E.B. sought legal representation from Legal Services, who determined that E.B. was financially eligible for representation and accepted her as a client. D.W., who was also financially eligible for legal representation from Legal Services, chose to appear pro se.
Legal Services apparently objected to Dr. Philip Witt's psychological examination of E.B. because of Dr. Witt's affiliation with Psychological Associates, an organization with which the Division maintains a contract. Legal Services argued that E.B. had a right to an independent expert. Although the record is not entirely clear as to whether Legal Services suggested an alternative expert or suggested someone who was unacceptable to the Division, the parties could not agree on who should perform the evaluations.
As a result, and apparently at the behest of Legal Services, the trial court appointed Dr. Valerie Adams to evaluate both E.B. and D.W. The total cost of Dr. Adams' evaluations was $1,500 -- more than twice that ordinarily paid by the Division or the Public Advocate, Office of the Public Defender (Public Defender).*fn1 The Division was ordered and agreed to pay $350 for each evaluation in accordance with its usual practice. Legal Services was required to pay the balance. The trial court, however, reserved to Legal Services the right to request that the Division pay the full cost of both evaluations.
Subsequently, the trial court transferred custody of R.J.B. from the Division back to E.B., subject to the Division's supervision and directed that the matter be reviewed within two months. Legal Services then moved to compel either the Division or the Public Defender, who represented the infant R.J.B. as Law Guardian, to pay the balance of Dr. Adams' fee. The Division argued that its funds were limited and, therefore, it should not bear the entire cost of the expert's fee. The Public Defender argued that it was not obligated to pay for expert fees unless it represented the party requiring the expert's services. Legal Services admitted that it was responsible for the litigation expenses of its client, E.B. However, it argued that such litigation expenses are limited to ordinary expenses such as subpoena attendance and subpoena service fees or judgment searches, and that the $800 balance of Dr. Adams' expert fee was not an ordinary litigation expense. Legal Services also argued that it would be unreasonable to expect it to spend over one-third of its $2,220 1991 budget on a single client. In sum, Legal Services argued that holding it responsible for the entire $800 balance of the expert's fee would "severely restrict a client's right to counsel."
The trial court held that Legal Services was responsible to pay the balance of Dr. Adams' fee for the court-ordered psychological evaluations of E.B. and D.W. and directed the Public Defender to contribute $350 toward the fee, reasoning in part, as follows:
The issue presented in this case is: If the defendant requests the services of an expert and the defendant is indigent, who bears the burden of paying the fees for said experts?
The Court has reviewed the parties' briefs and finds that the Legal Services Corporation must pay the remaining portion of the expert's services provided to the defendant.
It is the understanding of this Court that Legal Services Corporation may have a limited budget but finds it is the ...