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Spennato v. Spennato


August 20, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1118-05.

Per curiam.


Submitted June 2, 2010

Before Judges Messano and LeWinn.

Defendant Jason Spennato appeals from the July 24, 2009 order of the Family Part awarding plaintiff Tracey Spennato counsel fees in the amount of $6,710.14. We affirm, but remand for the purpose discussed below.

The parties were divorced by a final judgment entered on April 7, 2005. Since that time, they have been involved in ongoing post-judgment motions resulting in orders issued on June 22, 2007; July 2, 2008; February 16, 2009; May 5, 2009; May 28, 2009; and July 24, 2009, the order which is the subject of this appeal.

The fees in issue were generated by legal services rendered to plaintiff by John A. Patti between March 27 and September 8, 2008, as evidenced by his bills appended to plaintiff's motion. The order of July 2, 2008 does reflect that a "[r]eply . . . [was] filed by John A. Patti." That order is silent as to counsel fees.

Apparently in her motion that resulted in the order of February 16, 2009, plaintiff sought counsel fees for Patti's services in filing a reply to defendant's earlier cross-motion;*fn1 the February 16, 2009 order, however, does not address counsel fees.

On March 19, 2009, plaintiff filed a motion for reconsideration of the February 16, 2009 order, claiming the judge had overlooked her request for counsel fees in her motion leading to that order. Plaintiff stated that she had been compelled to seek legal counsel to respond to defendant's cross-motion filed in response to her motion seeking numerous forms of relief.

In granting plaintiff's motion for reconsideration and awarding counsel fees, the trial judge stated:

Plaintiff's [m]otion for [r]econsideration for the payment of [p]laintiff's counsel fees is GRANTED in the amount of $6,710.14. Paragraph 2[7] of the February 16, 2009 Order denies the [d]efendant's request for counsel fees for failing to comply with Judge Pincus' Order from February 20, 2009 [sic] and Judge Kieser's order of July 17, 2006 However, the [c]court inadvertently overlooked [p]laintiff's request for counsel fees in the February 16, 2009 Order. In granting [p]laintiff's request for counsel fees, the [c]court considered [d]efendant's repeated non-compliance with several provisions of the previous court orders issued by Judge Kieser and Judge Pincus. Due to [d]efendant's repeated non compliance [sic] with previous court orders, [p]laintiff has incurred these legal fees to enforce existing court orders. Given the comparable financial circumstances of the parties and the relatively small difference in [p]laintiff's income, the extent of the fees incurred and the fact that an even greater effort was made by [p]laintiff pro se, so as not to incur legal fees, the good faith of [p]laintiff and seeming lack thereof by [d]efendant, the [c]court believes an award of these legal fees is fair and equitable, . . . in accord with Rule 5:3-5(c). The [c]court has reviewed the hours and rates charged by counsel, and deems them fair and reasonable for the work required.

On appeal, defendant contends that the trial judge erred in granting counsel fees because (1) plaintiff had previously been denied counsel fees in the May 28, 2009 order, and (2) Patti had not filed an affidavit of service, as required by Rule 4:42-9(b).

Defendant also contends that plaintiff's March 19, 2009 motion for reconsideration was untimely, as it was not filed within the twenty-day time limit set by Rule 4:49-2; we address this contention first. The February 16 order was interlocutory, not final; paragraph 25 therein states that "[d]efendant's request for child support is reserved for continued consideration." Thereafter, child support was determined in the order of May 5, 2009, which notes that it was entered "[p]ursuant to the reservation in [p]aragraph 25" of the February 16 order.

"We have . . . held that the time prescriptions set forth in Rule 4:49-2 apply to final judgments and orders, not interlocutory orders, which are reviewable at any time." Sullivan v. Coverings & Install., Inc., 403 N.J. Super. 86, 96 (App. Div. 2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). Therefore, the time limit in Rule 4:49-2 is inapplicable.*fn2

We turn to defendant's contention regarding the affidavit of services. Rule 4:42-9(a)(1) provides that counsel fees may be awarded [i]n "a family action . . . pursuant to R. 5:3-5(c)." (Emphasis omitted). Rule 4:42-9(b) requires that all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC l.5(a). The affidavit shall also include a recitation of other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought.

Here, Patti failed to comply with this requirement. Plaintiff contends that the affidavit of services "would not have altered the judges' [sic] decision to award counsel fees . . . ." Nonetheless, attorneys, as officers of the court, are required to comply with rule requirements.

We are inclined to affirm the counsel fee award for the reasons set forth in the statement of reasons appended to the July 24, 2009 order. We accord special "deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We are troubled by counsel's failure to comply with R. 4:42-9(b). Plaintiff, however, should not be prejudiced by this deficiency. Under the circumstances, we deem it reasonable to remand this matter with instructions to the trial judge to require counsel to submit the required affidavit.

Affirmed in part; remanded in part.

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