On appeal from the Superior Court of New Jersey, Law Division, Union County, L-5872-97.
Before Judges Petrella, Newman and Wells.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from an order granting summary judgment dismissing plaintiff Kathleen Q. Kaplan's legal malpractice action. We affirm.
Plaintiff initiated an action against defendants, her former attorneys in her matrimonial proceeding. The thrust of her complaint was that she was negligently represented by defendants in connection with the property settlement agreement that she entered into, which provided her less alimony, child support and equitable distribution than she should have received. This agreement had been memorialized in writing and placed on the record before the trial judge. When questioned in court, plaintiff indicated that she was satisfied with the services of her attorney and with the terms of the settlement agreement.
Defendants answered and counterclaimed for the outstanding legal fees in the amount of $45,176.39 plus interest, counsel fees and costs. Following several case management conferences, the trial judge entered an order requiring all expert reports by a certain date. Plaintiff ultimately submitted a report of a liability expert, Anthony P. Ambrosio, Esq., dated December 31, 1998.
The report asserted that plaintiff did not receive enough by way of settlement for child support, alimony, adequate contribution toward counsel fees and no share of her husband's law partnership. The expert also challenged the failure to account for unfavorable and unanticipated tax consequences to the wife and the failure to require the husband to repay the wife for expenses she incurred pendente lite and roof expenses. The expert further accused defendants of failing to represent the client in post-settlement proceedings where issues purportedly arose as to ambiguities in the settlement agreement, obliging plaintiff to retain other counsel to represent her.
An attorney owes to his or her client the duty of loyalty and zeal. The defendants' (sic) failed to take the steps to protect the interests of the plaintiff which any reasonably competent attorney possessing ordinary knowledge and skill practicing family law in the same community could have taken including insisting upon a trial in this matter where the husband and his attorney took a firm and aggressive stance during the last stages of the negotiations. Such failure was a deviation from the standard of care to which they were required to adhere. In the trial brief prepared by the defendant attorneys and submitted to the court the defendants set forth the position on behalf of the plaintiff which the defendants later abandoned. The support and alimony together is far below the total sum which the defendants originally advised the plaintiff would be fair and reasonable under all of the circumstances in the case and especially in light of her husband's income. In view of the husband's present earnings, the style and manner to which plaintiff and her children had become accustomed to during the marriage, the special needs of the child Michael, and the inability of the plaintiff to work, the provision for alimony are (sic) not adequate. After income taxes are paid on the alimony plaintiff will not have sufficient income to maintain the lifestyle established during the marriage and her husband will be in a substantially better financial position as a result of the settlement recommended by the defendant attorneys. Furthermore, no provision was made for increases in the alimony as the income of the defendant husband went up. Any client can make application for increases in support or alimony but the burden is an onerous one to show a change in circumstances which was not covered or anticipated when the initial settlement was executed. Often a non working spouse in a long term marriage is entitled to share in performance bonuses and substantial earnings increases of the divorced spouse.
Furthermore, the defendants representation that the plaintiff received a greater amount of alimony as consideration for not receiving any portion of her husband's interest in the law firm was clearly misleading and did not reflect the true circumstances of the settlement to which defendants recommended the plaintiff agree. In my experience of handling many divorce cases in over thirty years of practice, the wife left with the primary care and responsibility for three young children of the marriage should receive alimony and support equal to at least one half of the husband's gross income. In a recent case I handled, in a 18 year marriage where the husband's gross income was $250,000.00, the wife received $30,000 support for two children and $84,000 in alimony. Comparing that with the instant case, plaintiff herein clearly did not obtain the proper level of support and alimony to which she was entitled. The defendant attorneys did a more than adequate job of documenting the controlling facts. Their trial brief was very specific and carefully done. However, the final settlement negotiated on behalf of the plaintiff by the defendants was far from what plaintiff should have received. A variance of 10% or even 20% may be within the bounds of a reasonable settlement. Here, the variance in the settlement was closer to 35% of the amount demanded ($120,000.00 as compared to $190,000.00). The defendants improperly misrepresented to the plaintiff why she did not receive any portion of her husband's interest in his law firm partnership. All of this conduct deviated from the required standard of care, was negligent and constitutes legal malpractice.
Defendants moved for summary judgment. Plaintiff answered and filed a cross-motion for a forty-five day extension of time in which to serve defendant with an expert report on damages. In granting the summary judgment motion, Judge Wertheimer concluded that the liability expert's report was a net opinion "in the strictest sense of the word," as it contained "nothing more than bare conclusions, unsupported by facts." The court explained:
Here, the anecdotal experience of the expert is insufficient and not evidential. First of all, it's hearsay; and, second of all, it does not speak to the viable issues in this case, particularly the counterclaim. So there is no opinion in this case, there is no expert in this case; therefore, the counterclaim stands on its own two feet as unopposed, and I will enter judgment on the counterclaim in the amount of $45,000.
And for failure to comply with the second case management order, I'll forget about noncompliance with the first case management order; and, in light of the fact that we have a trial date in 17 days that has been assigned six months ago, I'm dismissing plaintiff's complaint because ...