On appeal from the Superior Court of New Jersey, Chancery Division-Probate Part, Hunterdon County, Docket No. 42580.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Lihotz.
Following protracted litigation in New Jersey and Florida concerning guardianship of the person and property of Joseph Scott Morrison, we review an order awarding attorneys' fees to the woman who filed the first guardianship action in this State. We affirm.
Catherine S. Bogert filed a verified complaint for appointment of a guardian for Joseph Scott Morrison. Soon thereafter, Morrison's daughter, Cynthia Morrison, filed a complaint for similar relief in Florida. Cynthia Morrison attempted to ignore the New Jersey proceeding. Therefore, litigation proceeded in both states.
In November 2006, Judge Mahon determined that he should defer to the Florida court; however, in November 2007, an appellate court in Florida held that the Florida trial court had abused its discretion when it did not defer to New Jersey to adjudicate the first-filed guardianship petition. The Florida appellate court reversed the orders appointing Morrison's daughter as his guardian and remanded the case to the trial court to enter a stay of the proceeding pending resolution of the guardianship proceeding in this State. When Judge Mahon entered his November 2006 order to defer to the Florida court, he permitted Bogert to submit an application for attorneys fees. By order dated January 25, 2007, Judge Mahon awarded Bogert $79,288.59 for counsel fees and costs.
Following reversal of the Florida guardianship orders, Morrison's daughter filed a verified complaint for guardianship for a non-resident in New Jersey. Judge Mahon entered an order that gave full faith and credit to the June 20, 2006 Florida order that declared Morrison incapacitated, appointed Morrison's daughter as temporary guardian of his person and property, required her to post a $200,000 bond, and declared Bogert an interested person and allowed her to intervene. The guardianship petition filed by Bogert had been dismissed.
Morrison's daughter appeals from the January 25, 2007 order granting attorneys' fees to Bogert. The cross-appeal filed by Bogert from the November 22, 2006 deferral order is moot and has been withdrawn.
Cynthia Morrison argues that the fee award to Bogert is unauthorized by law and excessive. Bogert responds that the award is authorized by law and the quantum of the award is attributable to the litigation strategy employed by Cynthia Morrison.
Cynthia Morrison argues that the Chancery Division did not have jurisdiction to award attorneys' fees to Bogert and that such award was not authorized by statute or rule. Specifically, Cynthia Morrison contends that because Judge Mahon deferred to the Florida trial court on grounds of comity prior to the award of counsel fees, he no longer had jurisdiction over the matter. She also argues that the Chancery Division lacked authority to award Bogert fees under Rule 4:86-4(e) because Bogert was not the prevailing plaintiff in the guardianship action. Finally, Cynthia Morrison argues that the award should be reversed because it was grossly excessive.
As noted, an appellate court in Florida recognized that the Chancery Division had primary jurisdiction of this matter. In addition, the procedural journey of this case supports a finding that Bogert was a de facto prevailing party, who is entitled to counsel fees.
Rule 4:86-4(e) provides "[t]he compensation of the attorney for the party seeking guardianship, appointed counsel, and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged mentally incapacitated person or in such other manner as the court shall direct." See R. 4:42-9(a)(3) (providing the court may allow a fee in accordance with R. 4:86-4(e)). Paragraph (e) of this rule was amended effective September 2006 and the phrase "attorney for the party seeking guardianship" was added in response to In re Landry, 381 N.J. Super. 401, 409-10 (Ch. Div. 2005). Pressler, Current N.J. Court Rules, comment on R. 4:86-4 (2008). The rule was amended "to make clear that the attorney for a party seeking appointment of a guardian for an alleged mental incompetent is entitled to a counsel fee award." Ibid.; Pressler, Current N.J. Court Rules, comment 2.3 on R. 4:42-9 (2008).
In Landry, supra, Judge William C. Todd, III, held that the trial court has the authority to award attorneys' fees to a plaintiff in an action for guardianship of an incapacitated person brought pursuant to Rule 4:86. 381 N.J. Super. at 409. He based this finding on the Supreme Court's promulgation of a form model judgment, which implied authorization for such an award. Ibid. In determining when such an award would be appropriate, the judge stated, "This court is not convinced it has the authority to award fees except in those cases where it is determined that the individual in question is incapacitated and where a guardian is appointed." Id. at 409-10. The judge stated further, "This court sees no ...