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Conahan v. Klingenberg


December 26, 2007


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-319-04.

Per curiam.


Submitted December 4, 2007

Before Judges Coburn and Grall.

We consolidate two appeals from orders addressing financial issues arising from a custody dispute between the child's father and maternal grandparents. The appeals were filed by defendant Dwight L. Klingenberg, the father. The plaintiffs, Theresa M. and Neal F. Conahan are the maternal grandparents. The child's mother is deceased.

On a prior appeal, we affirmed the order assigning residential custody of the child to plaintiffs but reversed and remanded an order awarding counsel fees and costs to plaintiffs in the amount of $20,000. Conahan v. Klingenberg, No. A-4579-04 (App. Div. Nov. 29, 2005). Defendant appeals from an order on remand reinstating the $20,000 award of fees and costs. Because plaintiffs did not submit an adequate affidavit of services, we reverse that order.

Subsequent to our remand, plaintiffs filed a post-judgment motion. Defendant appeals from orders entered on that motion requiring him to pay counsel fees and costs for proceedings in this court on appeal, turn-over social security death benefits paid to him for the child and authorizing plaintiffs to move for an order compelling defendant to pay for his son's appendectomy. Because the trial court lacked jurisdiction to award fees and costs for appeal, we reverse that order. We affirm defendant's obligation to pay for his son's appendectomy and remand the order requiring defendant to surrender his son's social security benefits.

We need not repeat here the tragic circumstances that led to plaintiffs' assuming responsibility for the day-to-day care of defendant's son, who was born in March 1988. The background is set forth in this court's prior decision. Ibid. Plaintiff filed the custody complaint in July 2003. A three-day trial was conducted in February 2005. The custody order was entered on April 7, 2005.

The trial evidence included little information about the parties' respective incomes. By informal agreement in place prior to the litigation, defendant contributed $450 per month toward his son's expenses. Plaintiffs' income was limited to Mr. Conahan's pension and the couple's social security retirement benefits; they had individual retirement accounts. Plaintiffs presented no evidence about the amount of their income or the value of their assets. According to defendant's testimony, he worked in his own business, which was "coming along," and earned approximately $38,000 per year. He and his second wife own a home, which she believes is worth $500,000 and which is subject to a mortgage in an amount she did not specify. Defendant also received $1250 per month in social security benefits paid on account of his former wife's death for the benefit of their son for approximately two years.

On the basis of that evidence, the order of April 7, 2005, addressed issues related to support of defendant's son. It obligated defendant to provide health insurance for his son, transfer the social security benefits received on behalf of his son to a savings account, and provide an accounting of the benefits and records of the savings account to plaintiffs.*fn1

While defendant's appeal from the custody order was pending before this court, plaintiffs filed two enforcement motions. On August 5, 2005, the trial judge entered an order enforcing defendant's obligation to establish the savings account. On August 24, 2005, the judge entered an order directing defendant to pay medical costs plaintiffs incurred for defendant's son between February 22, 2005, and April 15, 2005. That order assigned responsibility for co-payments due on insured medical expenses to plaintiffs.

Following this court's remand for reconsideration of the counsel fee award, plaintiffs filed another motion in the trial court. They sought an order compelling defendant to pay legal fees incurred on appeal, enforcing prior orders and obligating defendant to pay for his son's emergency appendectomy. By order dated February 24, 2006, the judge granted plaintiffs' request to enforce prior orders in general terms and awarded plaintiffs fees on appeal without specifying the amount awarded. By a more specific order filed on March 7, 2006, the court authorized plaintiffs to move on short notice for an order adding the amount due for the surgery, $18,217.79, to other amounts owed by defendant "in the event [d]efendant does not have the [c]court-ordered medical insurance." That order further directs defendant to surrender to plaintiffs $23,060, representing social security benefits he received on behalf of his son but had not placed in a savings account as required by prior orders.

These appeals followed.


We reverse the trial court's order awarding counsel fees on appeal. A trial court "has no authority" to award fees on appeal unless this court expressly directs the trial court to take that action. Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 390 N.J. Super. 557, 570 (App. Div. 2007); see R. 2:11-4. This court's decision on the prior appeal did not include authorization to fix fees for the appeal. Accordingly, the order, which was entered without authority, is vacated.


We also reverse the order awarding counsel fees on remand. Ordinarily, we do not exercise original jurisdiction to resolve questions of counsel fees for proceedings in trial courts. See Diehl v. Diehl, 389 N.J. Super. 443, 453-54 (App. Div. 2006). In this case, however, it is clear that the certification of services plaintiffs submitted to the trial court is inadequate to permit an award of fees. For that reason, we deny the request.

The certification of services submitted by plaintiffs' attorney states a billing rate of $200 per hour for "office time" and $250 for "court time" and describes the attorney's background and experience in support of his assertion that his rate is reasonable and customary. He recited total charges of $27,600 for legal services and $716.36 for disbursements. Plaintiffs had paid $2000, and, pursuant to prior court order, defendant had paid $9500. The balance due was $16,816.31. The attorney requested an order compelling defendant to pay the full amount of the total bill, $28,316.31. Although a statement attached to the certification includes an itemization by date of the legal services rendered, it does not include the number of hours spent on each service or even each day. It simply lists the total number of hours for in-office and in-court services.

The award of attorney's fees in a case involving child custody "rests with the sound discretion of the trial judge." Clarke v. Clarke, 359 N.J. Super. 562, 572 (App. Div. 2003). Generally, such discretionary decisions are given deference. That deference is due, however, only if the decision is consistent with controlling legal principles and supported by the record.

Plaintiff did not provide the information the judge required to award counsel fees. Where an award of counsel fees is authorized, "only those fees that represent reasonable compensation for such legal services performed and were reasonably necessary in the prosecution or defense of the litigation may be awarded." Chestone v. Chestone, 322 N.J. Super. 250, 257 (App. Div. 1999). The fee "should not be fixed simply by taking the total time assertedly expended by counsel and by multiplying the total number of hours by the charges fixed in a retainer agreement." Ibid. Rather, the judge "must critically review the nature and extent of the services rendered, the complexity and difficulty of the issues determined, and the reasonableness and necessity of the time spent by counsel in rendering the legal services." Ibid.

Because the affidavit provided in this case consists of nothing more than a list of services rendered and the date upon which they were rendered, no court could conduct the analysis required. Accordingly, we reverse and vacate the order awarding plaintiffs $20,000 in fees. We are constrained to note that the $20,000 awarded, when added to the $9500 already paid by defendant, exceeds plaintiffs' total bill for fees and disbursements.


Defendant's objection to the order addressing his obligation to pay for his son's appendectomy is not properly before us. The order does not require defendant to pay anything. It simply authorizes plaintiffs to move for an order compelling payment in the event that the insurance company denies coverage. Because the order does not resolve the issue, there is no order to review.


Defendant's claim that the trial judge erred in requiring him to surrender social security benefits he received on behalf of his son lacks sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(1)(E). He argues that plaintiffs' motion did not request that relief, but that assertion is not supported by the record. The relevant notice of motion clearly states that plaintiffs are "[s]eeking to enforce the [c]court [o]rders . . . dated August 5, 2005, June 24, 2005 and April 7, 2005." As noted above, the orders of April 7 and August 5, 2005, both required defendant to place his son's social security benefits in a savings account. In addition, paragraph five of plaintiffs' certification expressly noted defendant's obligation "to total up all funds in his possession for [his son] and to transfer them into a savings account and provide copies" to plaintiffs. Plaintiffs asked the court to issue a warrant for defendant's arrest to compel compliance with this court-ordered obligation. Thus, there is no basis for defendant's claim that he did not assert a defense pertaining to the social security benefits because plaintiffs "did not seek any relief pertaining to" those benefits.

Reversed in part, and affirmed in part.

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