JEROME CUNNINGHAM VS. JEANNE MITKOWSKI ETAL. (FM-13-0283-18, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1102-19T2
JEROME CUNNINGHAM,
Plaintiff-Appellant,
v.
JEANNE MITKOWSKI,
f/k/a JEANNE BRUTMAN,
Defendant,
and
RICHARD SANVENERO, JR.,
Guardian Ad Litem,
Respondent.
__________________________
Submitted October 28, 2020 – Decided December 4, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-0283-18.
Law Office of Steven P. Monaghan, LLC, attorneys
for appellant (Kristin S. Pallonetti, on the briefs).
Law Office of Timothy F. McGoughran, LLC,
attorneys for respondent (Richard Sanvenero, Jr., on
the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Jerome Cunningham
appeals from a Family Part order directing that he make monthly payments
towards his fifty-percent share of fees due and owing to the court-appointed
guardian ad litem (GAL) for the child that plaintiff shares with his ex-spouse,
defendant Jeanne Mitkowski. Based on our review of the record, we are
convinced the court erred by: failing to consider plaintiff's objections to the
fees charged by the GAL; failing to consider plaintiff's ability to pay in its
determination of the monthly payments it ordered plaintiff pay the GAL; and
failing to make findings of fact and conclusions of law supporting its findings
of the amount due to the GAL and the amount of plaintiff's monthly payment
for his share of the fees due to the GAL. We vacate the court's order and
remand for further proceedings.
Plaintiff and defendant married in 2008 and divorced in 2015. They
share one child, a son born in 2009. They have had ongoing and contentious
post-judgment divorce proceedings in New York and New Jersey that need not
be detailed here, other than to note that in May 2018, the court appointed the
A-1102-19T2
2
GAL for the parties' child pursuant to Rule 5:8B. The order appointing the
GAL required that plaintiff and defendant share equally in the payment of the
GAL's fees, which the court ordered be paid at the rate of $240 per hour.
The contentious relationship between the parties and the apparent needs
of the child kept the GAL quite busy over the fifteen months following his
appointment by the court. The GAL sent the parties monthly invoices for his
services that were, for the most part, not paid, and, as of August 22, 2019, the
outstanding sum claimed by the GAL to be due was $64,796.70.
In August 2019, the parties filed cross-motions related to their ongoing
disputes over child custody and parenting time issues. The GAL joined in the
motion practice, requesting that the court order plaintiff and defendant to each
pay $3,000 per month toward their respective shares of the outstanding amount
due for his services. Defendant resolved the fee dispute with the GAL; she
agreed to pay her fifty-percent share of the fees at the rate of $1,500 per
month.
Plaintiff opposed the GAL's motion. He submitted a certification
explaining that he had been furloughed from his job and was unsure when he
would be reinstated. He generally described his income, expenses, and
financial situation, and provided a case information statement. He represented
A-1102-19T2
3
that he could afford to pay only $200 per month during the furlough from his
job and $500 per month after he is reinstated. He also requested "fee
arbitration" because he took "issue[] with [the GAL's] billing," citing an
example of being billed for a brief conversation he had with the GAL when
they had a chance encounter in a municipal court.
The GAL submitted a reply certification questioning the accuracy of
plaintiff's case information statement and challenging plaintiff's
representations about his income, assets, and ability to pay. The GAL
acknowledged that the court was "in the best position to . . . evaluate the
reasonableness of [his] fees" and that any issues concerning the amount of his
fees are "subject to [c]ourt review and decision." He also disputed plaintiff's
version of their encounter in the municipal court, explaining he billed for the
conversation because he spent "nearly twenty . . . minutes" speaking with
plaintiff about "issues [plaintiff] had with . . . parenting time."
The court held a hearing on the GAL's motion. Plaintiff's counsel
argued the primary issue was the amount of the monthly payment the GAL
requested. Plaintiff's counsel asserted plaintiff "cannot afford to make the
same . . . payment that [defendant] is making." Plaintiff's counsel explained
plaintiff was furloughed from his job and collecting $450 per week in
A-1102-19T2
4
unemployment benefits, and plaintiff's living expenses were about $4,200 per
month. He also asserted defendant owed plaintiff $17,000 in arrears in child
support. Counsel argued plaintiff could afford to pay $200 per month toward
the GAL's fees, and $500 per month after plaintiff's work furlough ended and
plaintiff began receiving his former average paycheck, which netted $1,287
per week.
Plaintiff's counsel also questioned the GAL's request for an order
providing for entry of a judgment if plaintiff failed to make timely payments in
accordance with whatever payment schedule the court established. Counsel
argued plaintiff "has some issues with the [GAL's] billings," and she
questioned whether such a judgment could be entered prior to a fee arbitration.
In response, the court said plaintiff was "not taking a [GAL] to fee arbitration"
because the court had "authorized the amount of the fees." The court further
stated it "authorized the hourly rate" and "reviewed [the GAL's] billing, and [it
was] certain that for every hour [the GAL] billed, he had to have spent another
half hour to an hour of time he didn't bill."
Plaintiff's counsel did not dispute the GAL should be paid or did not
earn a fee. Plaintiff's counsel reiterated that plaintiff simply did "not have
[the] financial means" to pay more than $200 per month while he collected
A-1102-19T2
5
unemployment while on furlough and $500 per month when he returned to his
job. Counsel further represented plaintiff could pay more if defendant paid the
substantial sum due to him in child support arrears. Counsel also opined that
the court never intended the GAL's bill would be in excess of $60,000 when
the GAL was first assigned, and plaintiff sought an order requiring him to pay
only what he could reasonably afford.
The GAL questioned plaintiff's claims about his ability to pay. The
GAL made arguments about plaintiff's alleged income, assets, property
ownership, and spending habits. The GAL also asserted plaintiff's work
furlough would last only about six to eight weeks and urged the court to find
that plaintiff could afford to pay $1,500 per month toward plaintiff's share of
the GAL's outstanding fees.
The court questioned the GAL about the arrangement he reached with
defendant for the payment of her share of the fees. The GAL represented that
defendant agreed to pay him $1,500 per month toward her one-half share of the
outstanding fees.
After hearing argument, the court stated it would "do an order" and
"we'll figure it out." The court subsequently issued an order that, in pertinent
part, provides that plaintiff and defendant are each responsible for fifty percent
A-1102-19T2
6
of the GAL's outstanding bill for services. The court determined the amount
due from plaintiff was $37,423.33, and directed that plaintiff pay $500 per
month during October through December 2019, and $1,500 per month
thereafter.1 The order further provides that if plaintiff fails to make a payment
by the twenty-fifth day of any month, the GAL may record the order as a
docketed judgment, with interest accruing as of August 23, 2019, and pursue
all collection remedies available to judgment creditors. This appeal followed.
Our review of Family Part orders in limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). We defer to the Family Part's factual findings “supported by
adequate, substantial, credible evidence” in the record. Gnall v. Gnall, 222 N.J.
414, 428 (2015). "However, when reviewing legal conclusions, our obligation
is different; '[t]o the extent that the trial court's decision constitutes a legal
determination, we review it de novo.'" Landers v. Landers, 444 N.J. Super.
315, 319 (App. Div. 2016) (alteration in original) (quoting D'Agostino v.
Maldonado, 216 N.J. 168, 182 (2013)).
1
The GAL claimed $64,796.70 was due from the parties. The court ordered
that plaintiff pay fifty percent of the amount due and directed that plaintiff pay
$37,423.33, which, we observe, is not fifty percent of $64,796.70. Plaintiff
does not argue on appeal that the court erred in calculating his fifty-percent
share of the amount the GAL claimed was due, and we do not address or
decide the issue. On remand, the court shall determine the total amount due to
the GAL and make findings of fact supporting its determination of the amount
it finds plaintiff is obligated to pay.
A-1102-19T2
7
Rule 5:8B(a) provides for the appointment of a GAL "to represent the
best interests of the child or children" in a Family Part matter. In making the
appointment, the court is required to set the GAL's hourly rate. R. 5:8B(d).
The GAL is required to "submit informational monthly statements to the
parties," and he or she "shall submit a certification of services at the
conclusion of the matter, on notice to the parties, who will thereafter be
afforded the right to respond prior to the court fixing the final fee." Ibid.
By providing the parties with a right to respond to a GAL's final
certification of services prior to the fixing of a final fee, Rule 5:8B(d)
implicitly requires that the court consider a party's objection to the amount of
the GAL's certification of services and proposed final fee. Otherwise,
affording the parties the "right to respond" to the GAL's certification of
services would be meaningless. Thus, a party is entitled to challenge the
amount of the GAL's requested fee, and the court is required to consider and
determine any issues raised by a party's challenge to the fee claimed. See In re
Adoption of a Child by J.D.S., 353 N.J. Super. 378, 403-04 (App. Div. 2002)
("remand[ing] for the trial court to []consider [the] plaintiffs' challenge to the
amount of the GAL's fee"); cf. Milne v. Goldenberg, 428 N.J. Super. 184, 207
(App. Div. 2012) (affirming a GAL fee award in part because the court 's "final
A-1102-19T2
8
assessment of the parties' obligation for payment was made following [a] full
opportunity to challenge the aspects of the work performed and the fees
charged").
Plaintiff challenged the amount of the fee sought by the GAL, or at least
attempted to, by arguing the GAL's fee claim should be submitted to fee
arbitration and by claiming one billing entry was for time spent while no
compensable GAL work was performed. The court correctly rejected
plaintiff's request for fee arbitration under our Court Rules, see R. 1:20A-1 to -
6, because the rules apply to "fee disputes between clients and attorneys," R.
1:20A-2(a). Although the GAL here is an attorney, he billed exclusively for
services provided as a GAL, and "[a] [GAL] is not counsel for any other
person—a [GAL] is not a counsel at all." In re Adoption of a Child by E.T.,
302 N.J. Super. 533, 542 (App. Div. 1997). As such, his the GAL's fees "are
more properly considered to be costs of the proceedings" rather "than counsel
fees." Ibid. The fee arbitration procedure for disputes over attorney's fees is
not available to plaintiff. The GAL did not provide any services as an
attorney; he provided, and billed for, only GAL services.
Plaintiff's attempt to challenge the amount of the GAL's claimed fees
ended quickly before the court. Plaintiff challenged the GAL's charge for their
A-1102-19T2
9
conversation during the chance encounter at the municipal court, but the court
summarily declared it would not consider plaintiff's claim. Although the court
was presented with conflicting certifications about what occurred, the court
stated it "was certain" of the validity and accuracy of each of the GAL's billing
entries because the GAL was "thorough, efficient and highly caring and
responsible."
In making that finding, the court erred in two ways. First, the court
effectively prevented plaintiff from further challenging the accuracy, validity,
and reasonableness of the GAL's billing entries. Cf. Milne, 428 N.J. Super. at
207. Second, the court erred by resolving material factual issues without a
plenary hearing, K.A.F. v. D.L.M., 437 N.J. Super. 123, 137 (App. Div. 2014),
and by making "credibility determinations . . . based on conflicting"
certifications, id. at 137-38.
Similarly, the court was presented with conflicting certifications
concerning plaintiff's ability to pay the monthly amount the GAL requested.
Plaintiff's certification explained his current employment and financial
situation, and he also filed a case information statement. The GAL's reply
certification challenged the accuracy of plaintiff's representations and included
assertions concerning plaintiff's assets, lifestyle, and spending habits. The
A-1102-19T2
10
record does not reveal how the court resolved the conflicts in the evidence
presented, but it was error for the court to do so based on the conflicting
versions of the facts presented in the certifications. Ibid. It is apparent,
however, the court rejected plaintiff's representations that he could not afford
to pay the $500 and $1,500 monthly amounts the court ultimately ordered, and
the court found more credible the GAL's claims about plaintiff's income,
financial status, and ability to pay. Given the conflicting evidence presented
concerning plaintiff's ability to pay the amount requested by the GAL, the
court erred by making those credibility determinations without an evidentiary
hearing. Ibid.
In setting the amount of plaintiff's monthly payment for the GAL's fees,
the court was required to determine both the reasonableness of the fees
charged and plaintiff's ability to pay, see J.D.S., 353 N.J. Super. at 403-04
(remanding for the trial court to consider the amount of the GAL's fee and the
plaintiff's ability to pay), and to make findings of fact and conclusions of law
supporting its decision, R. 1:7-4. Where, as here, the court exercises
discretion in setting the amount due and the amount of plaintiff 's monthly
payments, see Milne, 428 N.J. Super. at 207 (noting "the trial judge has 'the
power and discretion to fix a retainer in the appointing order and to allocate
A-1102-19T2
11
final payment of the [GAL] fee between the parties'" (alteration in original)
(quoting R. 5:8B)), "we must be provided with adequate reasons for the
[court's] determinations" to conduct appropriate appellate review, Gormley v.
Gormley, 462 N.J. Super. 433, 449 (App. Div. 2019). A trial court's "omission
of critical factual findings, . . . impedes our review" and necessitates a remand.
Ibid. (alteration in original) (quoting Elrom v. Elrom, 439 N.J. Super. 424, 443
(App. Div. 2015)).
Due to the court's omission of any findings of fact supporting its
decision, it is not possible to determine if the court considered or relied on
defendant's settlement with the GAL in determining plaintiff's monthly
payment obligation. Plaintiff correctly notes that during the hearing the court
asked the GAL about the settlement with defendant, and plaintiff argues the
court clearly relied on defendant's agreement to pay the GAL $1,500 per
month in setting plaintiff's post-December 2019 payments in the same amount.
We need not speculate on the basis for the court's determination, but we agree
with plaintiff that defendant's settlement with the GAL is irrelevant to, and
should not be considered in any manner in the determination of, the amount
due to the GAL from plaintiff and the amount of plaintiff's monthly payment
obligation to the GAL. On remand, the terms of defendant's settlement with
A-1102-19T2
12
the GAL concerning the amount and monthly payment obligations for his fees
shall not be presented to, or considered by, the court in its consideration and
determination of the amount plaintiff is required to pay and the amount of
plaintiff's monthly payment obligation.
Plaintiff also argues the court erred by ordering entry of a judgment in
the amount of any outstanding balance due to the GAL if plaintiff fails to make
a payment by the twenty-fifth day of each month. In our view, any order
permitting entry of a judgment based on an alleged failure to make a timely
payment shall require the filing of a motion for such relief in accordance with
the Court Rules, with notice to plaintiff and an opportunity to respond.
In sum, we vacate the court's order and remand for the court to provide
plaintiff with an opportunity to challenge the amount of the GAL's billings,
and for the court to determine the amount due to the GAL from plaintiff. The
court shall also determine the amount of plaintiff's monthly repayment
obligation based on plaintiff's ability to pay. Given the passage of time, the
court shall permit the parties to amend and supplement their submissions on
those issues. The court shall conduct such proceedings as it determines
appropriate based on the submissions of the parties. The court shall also make
A-1102-19T2
13
appropriate findings of fact and conclusions of law supporting its decision.
See R. 1:7-4.
Because the judge who decided this matter in the first instance made
credibility determinations, we are constrained to direct that the remand be
assigned to a different judge. See R.L. v. Voytac, 199 N.J. 285, 306 (2009)
(stating that "[b]ecause the trial court previously made credibility findings, we
deem it appropriate that the matter be assigned to a different trial court ").
Nothing in this opinion shall be construed as a determination of the merits of
the GAL's fee request, plaintiff's challenge to any of the claimed fees, or
plaintiff's ability to pay any particular monthly amount for the sum determined
to be due to the GAL.
Vacated and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
A-1102-19T2
14