On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. L-1691-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
Defendant Kelly Keppe appeals from a trial court order denying her motion in which she sought an order fixing reasonable counsel fees. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Plaintiff in the underlying action is Wendy Keppe, Administrator of the Estate of Ruth F. Bruning, deceased. Kelly Keppe was married to defendant Michael Keppe. Michael Keppe and Wendy Keppe are brother and sister and the grandchildren of Ruth Bruning. Ms. Bruning owned a home in Spotswood, and Michael and Kelly moved into the home and lived with Ms. Bruning for several years prior to her death in 2001. Ms. Bruning died intestate, and Wendy Keppe was appointed administrator of her estate. In that capacity, she sought to marshal the assets of the estate, including the Spotswood house. Michael and Kelly resisted, however, asserting that Ms. Bruning had asked them to move in with her and assist in caring for her and for the house, promising in return that the house would be theirs upon her death.
In May 2003 Wendy Keppe commenced this action in the Chancery Division, in which she sought, among other relief, to quiet title to the property and to eject defendants. We shall refer to this quiet title action as the estate litigation. Michael and Kelly retained an attorney to represent them in the estate litigation, and he filed an answer and counterclaim on their behalf. Several days after that pleading was filed, however, Kelly Keppe filed for divorce from Michael, and the attorney's motion to be relieved as their attorney in the estate litigation was granted.
On March 5, 2004, the chancery judge, having resolved the equitable issues, entered an order transferring the remainder of the estate litigation to the Law Division for disposition. On March 23, 2004, a final judgment of divorce was entered dissolving the marriage between Michael and Kelly. A property settlement agreement was attached to the judgment; appended to the property settlement was the following handwritten document, paragraph 72 of the property settlement agreement, initialed by both parties.
The Wife shall receive $67,500 00/100 from the sale of the marital home by the Executer of the Estate of Ruth Bruning. Should the marital home not be sold within 9 months from March 23, 2004, the Husband shall immediately move in the Surrogate Court of New Jersey, to compel the sale of said marital home. Husband shall be solely responsible for any and all legal fees in connection with such an application.
In consideration for the above, Wife agrees to waive: any and all Pendente Lite arrears; any and all rights to Husband's 401k; any and all claims against the Estate of Ruth and/or John Bruning. Wife shall also be responsible for the auto loan (i.e., 1996 Chevy Astro Van) as well as any and all credit cards in her name.
Each party shall indemnify, defend and hold the other harmless for any and all claims or allegations of waste or misuse of estate related funds in connection with the litigation of the Estate of Ruth Bruning.
Husband shall be solely responsible and shall hold the Wife harmless in connection w/ any money due to the IRS from the 2002 Tax Return. Husband shall also be solely responsible and shall hold the Wife harmless in connection w/ any and all attorneys fees due to Dennis Auciello, Esq., and/or any other legal representation in connection w/ the Estate of Ruth Bruning.
Two months later, in May 2004, Kelly was deposed in the estate litigation by the attorney representing Ms. Bruning's estate. Because Kelly believed that she was no longer a party to the estate litigation, she appeared for this deposition without an attorney. When she learned that she was incorrect in that regard, she retained an attorney to protect her interests in the estate litigation suit. That attorney filed an amended answer on her behalf and a cross-claim against Michael, seeking her share of the proceeds of the sale of the house, indemnification and counsel fees. The estate litigation settled approximately one year later. We have not been provided with the particulars of that settlement.
Sometime thereafter Kelly filed an action in the Family Division, seeking relief in aid of litigant's rights to enforce various provisions of the property settlement agreement, including paragraph 72. The judge handling the Family Part matter entered an order in February 2006 granting certain aspects of the relief she sought and ...