April 19, 2011
JENNIFER KATONA, PLAINTIFF-RESPONDENT,
JOHN N. GREENE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1655-08W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 16, 2011
Before Judges Fuentes and Ashrafi.
Defendant John Greene appeals from an order of the Family Part dated January 26, 2010, requiring that he pay $24,704.59 to plaintiff Jennifer Katona as reimbursement of attorney's fees in their divorce action. We reverse and remand for reconsideration of the order and more thorough findings and conclusions under Rule 5:3-5(c).
The marriage lasted only five months, and there were no children. Katona filed a complaint for divorce on June 27, 2008. No distribution of marital assets was involved in the divorce because Katona was not seeking any assets that were owned by Greene, and her assets were not marital property. Greene claimed a right to alimony based on Katona's substantially higher income. On the date scheduled for trial, however, the parties reached a settlement, and Greene abandoned his claim for alimony. He claims he learned on that date that Katona no longer had the same income as previously.
The parties entered into a written marital settlement agreement on June 23, 2009, and a final judgment of divorce was entered on the same date incorporating the agreement. Other than granting Greene the right to retrieve some personal property, each party retained his or her own property, and each waived alimony. The agreement permitted Katona to make an application to the court for an award of attorney's fees to her; Greene waived any claim for attorney's fees from Katona.
In August 2009, counsel for Katona filed an application for reimbursement from Greene of $49,409.17 in fees and expenses incurred on behalf of Katona in the matrimonial action. Those fees were charged at rates ranging from $250 to $450 per hour for at least four different lawyers who worked on the file at the Riker Danzig law firm. Counsel for Greene filed opposition, asserting among other things that the charges of Katona's lawyers were too high for the level of complexity of the case, and that Greene had incurred litigation expenses of only $10,271, that is, about one-fifth as much as Katona's lawyers had charged. The court entered an order on January 26, 2010, granting Katona one-half of her requested fees, $24,704.59. The court's order did not provide a statement of reasons or other explanation, and there was no oral record of findings of fact or conclusions of law resulting in the order.
Greene filed a notice of appeal. The parties attended a conference under our Civil Appeals Settlement Program (CASP) on May 11, 2010, but they did not reach a settlement. By order dated June 14, 2010, we remanded to the Family Part to "issue a written opinion or memorandum decision, finding the facts and stating the conclusions of law" in accordance with Rule 1:7-4 in support of the January 26, 2010 order. By letter dated July 14, 2010, the Family Part transmitted to us a two-and-a-half page transcript of a ruling it had placed on the record on May 25, 2010, stating reasons for its award of attorney's fees to Katona. We have not been told how it came about that the Family Part's oral decision occurred on a date earlier than our order of remand. In the transcript, the Family Part cited Rule 4:42-9 and also recited briefly the factors listed in Rule 5:3-5(c) pertinent to an award of attorney's fees. The court then made only a brief statement of reasons for its award of attorney's fees, which included no findings related to the relevant factors under the rules.
The court's statement does not comply with our order and the requirements of Rules 1:7-4, 4:42-9, and 5:3-5(c). The Family Part concluded that Greene was responsible for delay in resolving the case, but it said nothing about the other factors listed in Rule 5:3-5(c), such as the financial circumstances of the parties, the ability of the parties to pay their own fees, the amount of fees previously paid, or the results obtained. The court's statement also neglected to evaluate, except in a general sense of cutting in half, the reasonableness of the hours of work performed or the rate of pay charged by Katona's attorneys. See S.N. Golden Estates, Inc. v. Continental Cas. Co., 317 N.J. Super. 82, 91 (App. Div. 1998); Chestone v. Chestone, 285 N.J. Super. 453, 467 (App. Div. 1995).
Because the explanation does not fulfill the requirements of the rules and our order, we must remand the matter again for a more thorough statement of reasons, including more specific findings of fact and discussion of all pertinent factors in Rule 5:3-5(c). See Gordon v. Rozenwald, 380 N.J. Super. 55, 79 (App. Div. 2005); Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003).
In the course of fulfilling that responsibility, the Family Part may also reconsider the merits of Katona's application. Greene argues with some persuasive force that the disparity of fees and services reflected in opposing counsel's certifications should be considered in determining whether one half of Katona's fees should be shifted to Greene. The court made no finding to the effect that Greene's responsibility for prolonging the case resulted in doubling the services of Katona's attorneys, thus theoretically justifying reimbursement by him of one half her fees without consideration of other factors. We doubt such a simplified calculation could reasonably be made. As we have stated, the court also made no finding that the services and charges listed in the application of Katona's attorneys were reasonable, considering the nature and complexity of the case.
On remand, the Family Part should consider all relevant factors in determining whether the fee award was appropriate, and it should provide a record of its findings and conclusions to permit meaningful review.
Reversed and remanded. We do not retain jurisdiction. However, if appellant Greene seeks to reinstate this appeal, he shall file a motion in this court within fifteen days of the Family Part's order on remand.
© 1992-2011 VersusLaw Inc.