December 17, 2008
LAUREN MCLAUGHLIN, PLAINTIFF-RESPONDENT,
KENNETH MCLAUGHLIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-1317-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 22, 2008
Before Judges Lyons and Kestin.
Defendant appeals from orders entered on December 12, 2007, and March 18, 2008. The earlier order denied defendant's application for counsel fees and the later order denied his motion for reconsideration. In each instance, Judge Robert J. Brennan appended a statement of reasons to the order entered.
The fee application arose in the context of defendant's motion to enforce certain provisions of the parties' property settlement agreement (PSA), incorporated into a judgment of divorce entered on March 15, 2007. The motion was made in an order to show cause filed on May 22, 2007. In his initial order denying the fee application, Judge Brennan summarized the ensuing background of the matter thusly:
"The parties subsequently entered into a consent order on July 25, 2007 that resolved all issues raised in the motion, with the exception of defendant's application for counsel fees[,] . . . sought . . . on the basis of having incurred such fees to enforce certain provisions of the parties' [PSA]."
Plaintiff, through her attorney, opposed the application for counsel fees with an argument in letter form. The December 12, 2007, order denying the counsel fee application contained recitals that Judge Brennan amplified in the appended statement of reasons:
Although defendant did seek enforcement of the [PSA], which would weigh in his favor according to R. 5:3-5(c), the certification of services he submitted (in two parts) in support of his application does not meet the requirements of R. 4:42-9(b), which requires that an affidavit of service[s] "include a recitation of . . . the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought." The two itemizations of services provided by defendant's counsel do not together amount to a total of $7,188.33, the sum defendant's counsel charged in bringing the application. Accordingly, defendant's counsel has not provided the court with a certification of service[s] that meets the requirements of R. 4:42-9(b). Defendant's request for counsel fees is therefore denied.
Plaintiff participated pro se in the motion for reconsideration, filing an undated certification in opposition. In his statement of reasons appended to the March 18, 2008, order denying reconsideration, Judge Brennan, after reciting the standards for raising and considering a motion for reconsideration, noted:
Defendant argues that "the court should have invoked R. 1:1-2 to obviate the injustice that resulted from a calculation error. . . .
Defendant further argues that it was an "abuse of discretion" for the court "to preclude defendant of any fees on the basis of a miscalculation." The court, however, denied defendant an award of counsel fees not because of an arithmetic error but because of larger insufficiencies in defendant's certification of services.
The statement of reasons went on to quote from R. 4:42-9(b). It also recited a portion of Judge Brennan's stated rationale in the earlier order, which the judge characterized as refer[ring] not to a simple arithmetical error but to its overall inadequacy as proof of services rendered and costs incurred. The certification of services submitted by defendant . . . contained a statement that defendant's counsel had incurred $7,188.33 of services; however, the attached itemizations failed to show that that amount had been incurred. Nor does it adequately show how the itemized expenses add up to the correct amount of $6,347.92. Moreover, the certification of services was submitted with two itemizations, large parts of which were redacted and crossed out, including the total balance due on each bill.
Defendant argues in the instant application that the court's denial of an award of counsel fees was "the ultimate gesture of form over substance." However, the court's acceptance of the certification of services provided by the defendant, despite its failure to provide a transparent showing of the counsel fees incurred, and basing an order that plaintiff pay those fees on that certification of services, would have favored the gesture of submitting a certification of services over the substance of showing how counsel fees were incurred.
The statement of reasons concluded with an analysis of the case law presented by defendant in support of his motion and the court's rejection of the arguments advanced.
We are in substantial agreement with Judge Brennan's respective rationales. The papers submitted by defendant in support of his motion for counsel fees were deficient. The amount sought was not supported by the papers. Such documentation as was provided in both the initial application and in the motion for reconsideration seems to have been thrown together. It lacked any apparent effort to guide the court through heavily redacted billing statements or to provide any justification, specifically or generally, for the itemized entries.
Movant in a counsel fee application bears a responsibility to supply sufficient and readily comprehensible support for the request. See Pressler, Current N.J. Court Rules, comments on R. 4:49-9(b), (c) (2008). Papers that do not, on their face, adequately support the request, and that require the judge to engage in an unguided search for the supporting information, do not reflect a proper discharge of the fee applicant's responsibilities. This is more than a matter of "dotting i's and crossing t's"; it reflects the duty to provide well-guided documentation in support of the application.
Decision on a motion for counsel fees in a matrimonial matter calls for a sound exercise of discretion by the motion judge. See Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). We discern no misapplication in Judge Brennan's determination that defendant had not met the support-submission responsibilities imposed by the rules of court on the movant in a counsel fee application. Although, at first blush, defendant was nominally entitled to a fee award against plaintiff based on the qualities of her conduct, this was only part of what defendant was obliged to show on his application. He also had a duty to make a reasonably clear and comprehensible showing of amounts claimed and their bases.
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