IN THE MATTER OF THE ADOPTION OF A CHILD BY M.E.B. AND K.N. M.E.B. AND K.N. VS. S.D.G. AND R.C.N.-B. (FA-14-0051-15 AND FD-14-0059-16, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1446-16T3
A-1552-16T3
IN THE MATTER OF THE ADOPTION
OF A CHILD BY M.E.B. and K.N.
______________________________
M.E.B. and K.N.,
Plaintiffs-Appellants,
v.
S.D.G. and R.C.N.-B.,
Defendants-Respondents.
_______________________________
Argued May 30, 2018 – Decided July 16, 2018
Before Judges Koblitz, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket Nos. FA-14-0051-15 and FD-14-0059-16.
Jason R. Melzer argued the cause for
appellants (Cole Schotz, PC, attorneys; Joseph
Barbiere and Jason R. Melzer, of counsel and
on the brief; Neoma M. Ayala on the brief).
Jeffrey S. Mandel argued the cause for
respondents (Law Offices of Jeffrey S. Mandel,
LLC, attorneys; Jeffrey S. Mandel, of counsel
and on the brief).
PER CURIAM
Plaintiffs, paternal grandparents M.E.B. and K.N., filed an
adoption complaint seeking to adopt their granddaughter, E.G. E.G.
is the daughter of defendant S.D.G. and plaintiffs' son, defendant
R.C.N.-B. Plaintiffs received temporary custody of E.G., but
produced no evidence of abandonment and defendants did not consent
to the adoption. The complaint was ultimately dismissed for lack
of subject matter jurisdiction. During the pendency of this
action, plaintiffs filed a visitation complaint, which was also
contested by defendants. The visitation action was eventually
voluntarily dismissed by plaintiffs.
The trial court awarded attorney's fees to defendants as to
both actions, which is the sole issue on appeal. Because the
court did not abuse its discretion, we affirm.
I.
At the time the original adoption complaint was filed,
plaintiffs resided in Woodstock, New York. S.D.G. resided with
her parents in Mendham Township, New Jersey while R.C.N.-B.
initially resided with plaintiffs in Woodstock. R.C.N.-B. and
S.D.G. are not married to each other and were twenty-one and twenty
years old, respectively, when E.G. was born.
S.D.G. has retained custody of E.G. and resided at her
parents' residence with E.G. in Mendham since her birth. Both of
S.D.G.'s parents provided financial support to both E.G. and S.D.G.
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S.D.G.'s parents provided a nanny to assist in E.G.'s care. S.D.G.
enrolled E.G. in a daycare in Mendham. According to S.D.G.,
R.C.N.-B. assisted in the care of E.G., who stayed at plaintiffs'
residence in Woodstock approximately eight days per month since
October 2014.
S.D.G. suffers from bipolar disorder and is required to take
medication. S.D.G. admits that she stopped taking her medication
in late 2014 and began abusing alcohol. On January 2, 2015, she
admitted herself into the Carrier Clinic, a rehabilitation
facility in New Jersey, where she remained for four days. She
then admitted herself into a rehabilitation facility in Florida,
where she stayed for one month. While S.D.G. received treatment,
E.G. remained in the care of S.D.G.'s parents in Mendham.
According to S.D.G., the nanny became unavailable during this
time and plaintiffs offered their assistance in caring for E.G.
S.D.G. consented to E.G. spending time with R.C.N.-B. and
plaintiffs in Woodstock. While in the rehabilitation facility,
S.D.G. applied to a macrobiotic cooking school in Massachusetts
and enrolled in the two-and-a-half month program after returning
home from the facility. During this period, S.D.G. permitted E.G.
to spend time in Woodstock with R.C.N.-B. and plaintiffs.
According to plaintiffs, they began caring for E.G. on an "every
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other week schedule." S.D.G.'s parents also brought E.G. to
Massachusetts to spend time with S.D.G. for a few weekends.
On February 20, 2015, plaintiffs filed the adoption
complaint. The complaint contained allegations that since the
child's birth, plaintiffs had provided significant care and
financial support for her and defendants had not "substantially
provided care[] for the child independently." It also alleged
that defendant S.D.G. abandoned E.G. and was not reasonably likely
to be able to care for her because of mental health and alcohol
abuse issues. The complaint additionally contained allegations
that R.C.N.-B. had abandoned E.G.
On March 6, 2015, the trial court entered an order for a
preliminary and final hearing, and granted plaintiffs temporary
custody of E.G., pending the hearings. E.G. was declared a ward
of the court and the order permitted plaintiffs to take her to
their home in New York. According to R.C.N.-B., after he received
the order on March 12, 2015, he was involved in a verbal
altercation with his mother, K.N., which led K.N. to throw him out
of the Woodstock residence. R.C.N.-B. and S.D.G. attempted to
retrieve E.G., but the New York State Police informed them that
plaintiffs would have them arrested if they entered the property.
On March 18, 2015, defendants filed an ex parte order to show
cause seeking to: (1) vacate the March 6, 2015 order; (2) dismiss
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the Verified Complaint with prejudice; and (3) regain custody of
E.G.
On March 19, 2015, the trial court held an ex parte hearing
on the order to show cause. S.D.G. and R.C.N.-B. both testified
at the hearing; both stated that they did not abandon E.G. and did
not consent to plaintiffs' attempt to adopt their child. The
trial court considered both of them credible, and concluded
plaintiffs did not have standing. The court dismissed the adoption
complaint, vacated the order of temporary custody to plaintiffs
and returned legal and physical custody of E.G. back to S.D.G. and
R.C.N.-B.
Plaintiffs appealed and on January 29, 2016, we issued a
published opinion, In Re Adoption of Child ex rel. M.E.B., 444
N.J. Super. 83, 94 (App. Div. 2016), reversing the trial court's
order dismissing plaintiffs' complaint based on the ex parte nature
of the proceedings and remanded to a different judge.
On remand, defendants filed a motion to dismiss the adoption
complaint for lack of subject matter jurisdiction and standing.
On August 3, 2016, the trial court dismissed plaintiffs' complaint
for lack of subject matter jurisdiction and awarded defendants
attorney's fees and costs solely for the adoption action. In its
statement of reasons, the trial court explained that because
plaintiffs were not New Jersey residents and did not receive the
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child from an approved agency, the court lacked subject matter
jurisdiction over the action. The court based this conclusion on
New Jersey case law, stating that "the test for subject-matter
jurisdiction under the [Adoption Act] for nonresident plaintiffs
is that they must have received the child from an approved agency."
N.J.S.A. 9:3-42.
In its statement of reasons, the trial court also addressed
defendants' request for counsel fees and costs. The court awarded
counsel fees and costs to defendants and focused on their few
financial resources compared to plaintiffs. The court also noted
that plaintiffs filed this action in a court without subject matter
jurisdiction and therefore "forced [S.D.G.] to defend her
constitutional rights in this forum unnecessarily." The court
ordered defendants to provide an affidavit of services before
awarding an exact dollar amount of fees.
On August 31, 2016, defendants filed a certification of
services requesting fees of $115,133.59 relating solely to the
adoption action. On November 2, 2016, the trial court issued an
amended order and Statement of Reasons granting reasonable
attorney's fees and costs of $67,079.19. The court referenced the
August 3, 2016 order in which it found the following two issues
most compelling: "the financial resources available to both
parties, and the procedural outcome of the matter." The court
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reasoned that defendants could not afford their own legal
representation without depending on their parents and were forced
to defend their constitutional right to remain parents to their
child. The court also "found the case was unreasonably advanced"
and believed plaintiffs acted in bad faith because they knew E.G.
was not available for adoption. For these reasons, the court
awarded attorney's fees to defendants for the reduced amount of
$67,079.19.
II.
On July 27, 2015, before their adoption complaint was
dismissed, having not visited with E.G. for more than a year,
plaintiffs filed a complaint seeking visitation. The complaint
alleged that plaintiffs were the primary caretakers of their
grandchild until defendants "abruptly denied [p]laintiffs any
contact" with her. On September 29, 2015, defendants filed a
counterclaim seeking dismissal of the visitation action and
requesting an award of attorney's fees. On March 11, 2016, the
trial court denied without prejudice defendants' motion to dismiss
the visitation complaint and plaintiffs' cross-motion for
preliminary visitation.
On August 31, 2016, plaintiffs filed a motion to voluntarily
dismiss the visitation action with prejudice and without costs or
fees to either party. Defendants filed a cross-motion to dismiss
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the visitation action with prejudice and award reasonable
attorney's fees, submitting a certification of services seeking
$45,963.36 in attorney's fees.
The trial court awarded defendants $15,118.61 in attorney's
fees related to the visitation action. The court stated:
The reasons for granting counsel fees in
connection with the [g]randparent
[v]isitation [c]omplaint are substantially
the same as those stated regarding the
granting of attorney's fee[s] in the adoption
matter. The [c]ourt also notes that a consent
for dismissal would appear to have been a much
more cost effective plan for ending this
grandparent visitation matter rather than
going through the trouble of a formal motion
with briefs. [Defendants have] clearly
demonstrated through this arduous proceeding
that [they] would have acquiesced in
dismissing this matter.
On January 4, 2017, the court submitted an amplification of
reasons as to the visitation action pursuant to Rule 2:5-1(b).
The court stated it was "extremely unlikely that [plaintiffs]
would have been able to satisfy the burden of proving that
visitation is necessary to avoid harm to the child."
Plaintiffs contend that the court erred in awarding fees for
the visitation action because it "improperly imputed the
[plaintiffs'] alleged bad faith in the adoption action to the
visitation action." According to plaintiffs, there was no evidence
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of bad faith in the filing of the visitation action as evidenced
by their decision to voluntarily dismiss the action.
Defendants ask this court to focus solely on the award of
attorney's fees in the visitation action and the amount of fees
in both actions. Defendants contend that the trial court properly
recited all the necessary factors that a court should consider in
a fee application and correctly applied the factors to their
situation. They argue that plaintiffs' argument that they relied
on their counsel's judgment regarding the existence of subject
matter jurisdiction does not negate the fact that they "pursued
litigation in bad faith and based on false representations."
Defendants point to the fact that plaintiffs obtained custody of
E.G. ex parte through the court, and then pushed R.C.N.-B. out of
their house when they served him with the order that granted them
custody.
III.
In reviewing the grant or denial of a counsel fee award, we
accord significant deference to the trial judge's determinations.
McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007).
A trial judge's "fee determinations . . . will be disturbed only
on the rarest of occasions, and then only because of a clear abuse
of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427,
444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
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Appellate courts must intervene when a trial judge's determination
of fees is based on "irrelevant or inappropriate factors, or
amounts to a clear error in judgment" and is "not premised upon
consideration of all relevant factors." Masone v. Levine, 382
N.J. Super. 181, 193 (App. Div. 2005) (citing Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)).
Pursuant to Rule 5:3-5(c), courts are permitted to award
attorney's fees in family actions. See R. 4:42-9(a). We accord
deference to the family courts because of their "special
jurisdiction and expertise in family matters." Cesare v. Cesare,
154 N.J. 394, 413 (1998).
Rule 5:3-5(c) sets forth nine factors courts must consider
in determining a fee allowance:
(1) the financial circumstances of the
parties;
(2) the ability of the parties to pay their
own fees or to contribute to the fees of the
other party;
(3) the reasonableness and good faith of the
positions advanced by the parties both during
and prior to trial;
(4) the extent of the fees incurred by both
parties;
(5) any fees previously awarded;
(6) the amount of fees previously paid to
counsel by each party;
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(7) the results obtained;
(8) the degree to which fees were incurred to
enforce existing orders or to compel
discovery; and
(9) any other factor bearing on the fairness
of an award.
[R. 5:3-5(c); see also Mani v. Mani, 183
N.J. 70, 94-95 (2005).]
Courts should consider "whether the party requesting the fees
is in financial need; whether the party against whom the fees are
sought has the ability to pay; the good or bad faith of either
party . . .; the nature and extent of the services rendered; and
the reasonableness of the fees." Mani, 183 N.J. at 94-95. Courts
do not need to enumerate every factor in reaching their
determination. Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div.
2013). However, a counsel fee award that is not supported by
adequate findings must be set aside. See Gordon v. Rozenwald, 380
N.J. Super. 55, 79 (App. Div. 2005).
"Fees in family actions are normally awarded to permit parties
with unequal financial positions to litigate (in good faith) on
an equal footing." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App.
Div. 2012) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch.
Div. 1992)). "[B]ad faith for counsel fee purposes relates only
to the conduct of the litigation . . . ." Mani, 183 N.J. at 95.
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IV.
We affirm the grant of counsel fees in both actions
substantially for the reasons set forth in Judge Louis S. Sceusi's
initial and amplified reasons set forth on August 3 and November
2, 2016, and January 4, 2017. We add only the following.
Plaintiffs make the point on appeal that they sought guidance
about jurisdiction ex parte by letter from the County Surrogate
prior to filing the adoption complaint. The ex parte nature of
that request minimizes its utility, as the facts set forth in the
complaint were disputed by the parents. Plaintiffs also contend
that it was defendants who prolonged the dismissal of the
visitation complaint by seeking counsel fees. The fact defendants
sought counsel fees is not an appropriate defense to starting
litigation that was unlikely to succeed.
Judge Sceusi was familiar with this litigation and had the
expertise to determine whether plaintiffs litigated merely with
the common ranker frequently evidenced in family matters, or with
an unfair and unrealistic determination to "save" their
granddaughter from her own parents. New Jersey has long accepted
that termination of parental rights followed by adoption is not a
method to provide children with a "better" home. In re Adoption
of Child by J.E.V., 442 N.J. Super. 472, 485-86 (App. Div. 2015).
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As Judge Sceusi stated, if plaintiffs were concerned about
the safety of their granddaughter in the care of her parents, the
proper avenue was to call the child protective services agency.
The courts are infrequently helpful in resolving intergenerational
conflict. And they are extremely costly. The counsel fees
awarded, only a portion of what was incurred by the parties, was
undoubtedly an unfortunate burden on plaintiffs, who reaped no
benefit from this misguided litigation.
Affirmed.
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