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Matter of Adoption of a Child by E.T.

June 26, 1997

IN THE MATTER OF THE ADOPTION OF A CHILD BY E.T. AND T.T., WIFE AND HUSBAND.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County.

Approved for Publication June 26, 1997.

Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Pressler, P.j.a.d. Humphreys, J.A.D., Concurring.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

Appellant Robert S. Burney, an attorney of this State, was appointed by the Family Part pursuant to R. 5:8A to serve as the law guardian for the child in this contested adoption case. After the preliminary hearing, the trial Judge entered an order terminating the parental rights of the biological parents and permitting the adoption of the child to go forward to final hearing. We affirmed that order on the biological mother's appeal by our opinion filed on March 31, 1997, under Docket Number A-4586-95T5. *fn1Just prior to the entry of the order on preliminary hearing and after the Judge had made his findings, the law guardian applied for an award of counsel fees against plaintiffs. The application was denied on the ground that N.J.S.A. 9:3-53 precludes an award of counsel fees payable by the adoptive parents. The law guardian appeals. We reverse and remand.

This was a so-called private placement in which the biological mother, having decided to surrender the child to the adoptive parents before her birth, did so immediately following the birth. She later changed her mind and attempted to regain the child by commencement of a custody action. The adoptive parents then filed this adoption action. Thereafter, the trial court entered an omnibus order consolidating the custody action into the adoption action, appointing an approved adoption agency pursuant to N.J.S.A. 9:3-48(a)(2) to investigate and report, and ordering a mental and emotional fitness evaluation of the biological mother to be conducted by another agency. The order also appointed the law guardian under R. 5:8A, and expressly provided that the law guardian

may apply for an award of fees and costs with an appropriate Affidavit of Services, and the Court shall award costs and fees, assessing same against either or both of the parties.

That order was prepared and presented by plaintiffs' attorney, who had requested the appointment of a law guardian.

Finally, as we understand this record, there was never any question regarding the biological mother's financial inability to pay fees. Indeed, we had found her to be indigent and entered an order assigning appellate counsel to represent her on her appeal pursuant to In re Guardianship of Dotson, 72 N.J. 112, 367 A.2d 1160 (1976). Consequently, we have no doubt that the realistic expectation of the plaintiffs in submitting the order to the trial Judge was that if any fees and costs were to be awarded to the law guardian, they would be assessed against them. Nevertheless, plaintiffs resisted such an assessment after they had prevailed, arguing that they were immunized from payment of fees pursuant to N.J.S.A. 9:3-53, which, while imposing the responsibility for payment of all costs of the proceedings on the plaintiffs, nevertheless stipulated that

[such] costs shall not include the provision of counsel for any person, other than the plaintiff, entitled to the appointment of counsel hereunder [N.J.S.A. 9:3-37 to 9:3-56].

The trial court agreed and denied the application.

I

We are satisfied from our review of the record that the order denying the application for fees was improvidently entered irrespective of the scope and applicability of N.J.S.A. 9:3-53. We reach this Conclusion based on the principle of judicial estoppel, namely that a party who has successfully urged a legal position during the course of litigation may not thereafter espouse a contrary legal position. See generally Cummings v. Bahr, 295 N.J. Super. 374, 385, 685 A.2d 60 (App. Div. 1996); Bahrle v. Exxon Corp., 279 N.J. Super. 5, 22-23, 652 A.2d 178 (App. Div. 1995), aff'd, 145 N.J. 144, 678 A.2d 225 (1996). Here, plaintiffs were the proponents of the order not only appointing a law guardian but also mandating payment of his fees by the parties and, realistically, by them. Moreover, that order was consistent with R. 5:8A itself, which expressly authorizes the court to "award fees and costs, assessing same against either or both of the parties." Not only, therefore, did plaintiffs expect to be assessed when their order was submitted but clearly, the law guardian had a reasonable expectation of a reasonable fee for his services. We do not mean to suggest that the services would have been rendered any differently had counsel been apprised from the outset that he was being asked to render pro ...


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