Rule 2:6-1(a) provides that on appeal from a summary judgment motion, the appendix shall include “all items submitted to the court on the summary judgment motion.”

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

On appeal from a summary judgment motion, the appendix shall include all items submitted to the court on the summary judgment motion originally appeared on NJ Family Issues on September 1, 2010.

The Court in Furst cautioned against using attorney fee applications as an opportunity “to become mired in a second round of litigation.” Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004). This admonition assumes, however, that the attorney certifications will be “sufficiently detailed to allow a trial court to determine the nature of the work performed and by whom, as well as the reasonableness of the hourly rate and the hours expended.” Id. at 25.

An award of counsel fees is calculated by determining the “lodestar,” i.e. a reasonable hourly charge multiplied by the number of hours expended. Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995). In determining the lodestar, the court should compare the hourly rate of the attorney to the rates charged for similar services of attorneys in the community with “comparable skill, experience, and reputation.” Id. at 337. The court must determine reasonable hourly billing rates that are “fair, realistic, and accurate.” Ibid.

The next step in this analysis requires the court to determine the hours that were reasonably expended pursuing the statutory objectives. Furst, supra, 182 N.J. at 22. Once the reasonable number of hours have been ascertained, the court should reduce the lodestar if the prevailing party achieved modest success in relation to the relief sought. Id. at 23. In going about this task, however, there need not be a direct proportionality between the fee and the damages recovered. Ibid. Finally, when the attorney has been retained on a contingency fee basis, the trial court may determine whether to enhance the fee, giving consideration to the results achieved, the risks involved, and the relative likelihood of success for the undertaking. Ibid.

Attorney fees should only be awarded for work done on successful claims. Counsel has the responsibility of justifying the fees requested by connecting the hours utilized to the claims that were successfully prosecuted.

RPC 1.5(a) sets forth the factors necessary to determine whether an attorney fee is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; [and]
(8) whether the fee is fixed or contingent.

Rule 4:42-9(b) requires that an attorney submit an affidavit of service addressing the factors listed in RPC 1.5(a).

The personal opinion of a trial judge predicated solely on his or her own professional experiences does not satisfy the analysis required by the Court under Rendine to determine a reasonable hourly rate. Under Rendine, “a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community.” Rendine, supra, 141 N.J. at 337.

Once the court ascertains the “prevailing market rates in the community” it can then “assess the experience and skill of the prevailing party’s attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Ibid.

The Court in Perdue v. Kenny A., ____ U.S. ____, 130 S. Ct. 1662, 1669, 176 L. Ed. 2d 494, 501-02 (2010), compiled what it characterized as “six important rules” in determining an award of counsel fees to prevailing parties in fee-shifting cases:

First, a reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case . . .

Second, the lodestar method yields a fee that is presumptively sufficient to achieve this objective. Indeed, we have said that the presumption is a strong one.

Third, although we have never sustained an enhancement of a lodestar amount for performance, we have repeatedly said that enhancements may be awarded in rare and exceptional circumstances.

Fourth, . . . the novelty and complexity of a case generally may not be used as a ground for an enhancement because these factors presumably are fully reflected in the number of billable hours recorded by counsel. We have also held that the quality of an attorney’s performance generally should not be used to adjust the lodestar because considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate.

Fifth, the burden of proving that an enhancement is necessary must be borne by the fee applicant.

Finally, a fee applicant seeking an enhancement must produce specific evidence that supports the award. This requirement is essential if the lodestar method is to realize one of its chief virtues, i.e., providing a calculation that is objective and capable of being reviewed on appeal.

[Purdue, supra, ___ U.S. at ___, 130 S. Ct. at 1672-73, 176 L. Ed. 2d at 505-06.]

For additional guidance, see:

ALLIANCE FOR DISABLED IN ACTION, INC. v. RENAISSANCE ENTERPRISES, INC. (App. Div.; A-1573-08T2, A-1456-08T2; July 30, 2010) (We are not convinced the court’s $100 per hour adjustment made to Popiel’s assigned hourly rate and its conclusion that an hourly rate of $350 was fair and realistic for the overall work performed on the case was unreasonable and a clear abuse of discretion in light of the information Popiel provided, his experience and skill, and the relevant market.)

D’Agostino v. Maldonado (Chan. Div., BER-C-84-09, Koblitz, P.J. Ch., June 30, 2010) (In this case, the hourly rates charged by plaintiff’s counsel (the highest being $275 per hour) are reasonable in comparison to fees customarily charged in Bergen County.)

Crespo v. City of Newark (App. Div.; A-5526-08T3; May 4, 2010) (In our view, the award of fees at a rate of $275 per hour was reasonable.)

KVL AUDIO VISUAL SERVICES, INC. v. Hackworth (App. Div.; A-6263-07T2; January 15, 2010) (Judge Goldman also considered the rates for the Hotel’s counsel, which ranged from $325 per hour to $250 per hour. The judge reduced those rates to a “blended rate” of $225 per hour.)

A Nationwide Sampling Of Law Firm Billing Rates, published by the National Law Journal, December 8, 2008

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Attorney fee awards are based in part on the hourly rate of the attorney, compated to the rates charged for similar services of attorneys in the community with comparable skill, experience, and reputation originally appeared on NJ Family Issues on September 1, 2010.

Equity may allow rescission in light of a unilateral mistake in a contract under certain circumstances. Conduit & Foundation Corp. v. City of Atl. City, 2 N.J. Super. 433, 439 (Ch. Div. 1949). A party seeking rescission must show “‘special circumstances justifying a departure from the generally controlling principle that parties are bound by the contracts they make for themselves.’” Dugan Constr. Co. v. N.J. Tpk. Auth., 398 N.J. Super. 229, 243-44 (App. Div. 2008) (quoting Intertech Assocs. v. City of Paterson, 255 N.J. Super. 52, 59-60 (App. Div. 1992)).

In Conduit, supra, 2 N.J. Super. at 440, the court set forth a four-part test against which we review whether to rescind a contract based upon a claim of unilateral mistake. The court has affirmed this test in later opinions, stating:

“The essential conditions to [] relief by way of rescission for mistake are
(1) the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable;
(2) the matter as to which the mistake was made must relate to the material feature of the contract;
(3) the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake, and
(4) it must be able to get relief by way of rescission without serious prejudice to the other party, except for loss of his bargain.”

[Dugan, supra, 398 N.J. Super. at 242 (quoting Cataldo Constr., supra, 110 N.J. Super. at 418-19).]

See also Restatement (Second) of Contracts § 153 (1981).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Equity may allow rescission in light of a unilateral mistake in a contract under certain circumstances originally appeared on NJ Family Issues on August 31, 2010.

A judge may select a figure for taxes on alimony that is less than exact and fairly derived to avoid repeated applications for recalculation of alimony based upon insubstantial changes in federal and state tax laws and decreases in exemptions and deductions. Lepis v. Lepis, 83 N.J. 139, 154 (1980) (noting that courts “should make greater efforts to provide in advance for change [so as to] enhance the stability of judicially fashioned arrangements and make unnecessary a return to court”).

Mathematical precision is not required. The determination of an appropriate tax adjustment, like the determination of other factors relevant to appropriate alimony, requires a sound exercise of discretion based upon competent evidence and an accurate understanding of tax consequences. Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). . . .
[Navin v. Navin, A-6745-04 (App. Div. Jan. 25, 2007), slip op. at 11-12.]

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A judge may select a figure for taxes on alimony that is less than exact and fairly derived to avoid repeated applications for recalculation of alimony based upon insubstantial changes in federal and state tax laws and decreases in exemptions and deductions originally appeared on NJ Family Issues on August 30, 2010.

Rule 5:6B provides that “[b]efore a [cost of living adjustment (COLA)] is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice.”

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Before a child support cost of living adjustment is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice originally appeared on NJ Family Issues on August 30, 2010.

The child support guidelines specify that “if the initial child support order is entered when a child is 12 years of age or older, that order and all subsequent orders shall be adjusted upward by 14.6%. Whenever the 14.6% adjustment is made, it should be noted in the guidelines worksheet or in the support order.” Pressler, supra, Appendix IX-A, para. 17.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

If the initial child support order is entered when a child is 12 years of age or older, that order and all subsequent orders shall be adjusted upward by 14.6% originally appeared on NJ Family Issues on August 30, 2010.

N.J.S.A. 2A:17-56.23(a) provides, in pertinent part, that “[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed . . . .” However, in Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999), the court expressly held that “the anti-retroactive support statute’s applicability is limited to prevent retroactive modifications decreasing or vacating orders allocated for child support.”

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The anti-retroactive child support statute’s applicability is limited to prevent retroactive modifications decreasing or vacating orders allocated for child support originally appeared on NJ Family Issues on August 30, 2010.

In reviewing a decision to impute income, the Appellated Division will not disturb the “court’s discretionary authority unless ‘the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence.’” Ibrahim v. Aziz, 402 N.J. Super. 205, 210 (App. Div. 2008) (quoting Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004)).

A judge may impute income to a non-custodial parent when she is voluntarily unemployed or underemployed without just cause. Ibrahim, supra, 402 N.J. Super. at 211.

When determining whether to impute income, the court should consider four factors:
(1) “the employment status of the parent . . .”
(2) “the reason and intent for the voluntary underemployment or unemployment;”
(3) “the availability of other assets that may be used to pay support;” and
(4) “the ages of any children in the parent’s household and child-care alternatives.”

[Ibid. (quoting Pressler, supra, Appendix IX-A(12) at 2293).]

In Caplan v. Caplan, 182 N.J. 250, 270 (2005), the Court imputed income to the non-custodial parent because he was unemployed but capable of earning income based on his previous employment. The trial judge should determine how much income to impute based on the child support guidelines and “a party’s responsibility for care of children[.]” Ibid. To determine the amount of income to impute, the judge should “impute income based on the full-time employment [] at the New Jersey minimum wage” if the parent’s potential earning capacity or former income on file with the New Jersey Department of Labor (NJDOL) is not available. Id. at 265 (quoting Pressler, supra, Appendix IX-A).

The reasoning that “a child needs support” is unassailable, yet standing alone, it cannot form the basis of a deviation from the guidelines.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

The reasoning that “a child needs support is unassailable, yet standing alone, it cannot form the basis of a deviation from the child support guidelines originally appeared on NJ Family Issues on August 27, 2010.

The remedy of equitable distribution provides a judicial division of marital property relative to the contributions of each spouse during the marriage, and is available only upon entry of a judgment of divorce. N.J.S.A. 2A:34-23.1; see also Mendell v. Mendell, 162 N.J. Super. 469, 476 (App. Div. 1978).

Equitable distribution is inapplicable in a matter involving unmarried parties, despite the extent of their cohabitation.

However, “joint venturers . . . are entitled to seek a partition of their property when their joint enterprise comes to an end, irrespective of how title is formally held.” Mitchell v. Oksienik, 380 N.J. Super. 119, 127 (App. Div. 2005) (internal citations omitted); see also Swartz v. Becker, 246 N.J. Super. 406, 412 (App. Div. 1991) (stating “[p]artition sales may be ordered if it is found that the property is so situated that it is not suitable for division”). “[F]ormal written agreements are not necessary for a joint enterprise to exist.” Mitchell, supra, 380 N.J. Super. at 129.

The equitable remedy of partition provides for equal division of joint property, including assets held by tenants in common. Aronow v. Silver, 223 N.J. Super. 344, 352-53 (Ch. Div. 1987). “Partition is subject to the rule of owelty, which ensures that ‘one cotenant receiv[ing] property with a value greater than his proportionate share, [] will owe to the other cotenant an amount of money which would equalize the partition.’” Id. at 353 (quoting Leonard v. Leonard, 124 N.J. Super. 439, 442-43 (App. Div. 1973)).

A court has broad discretion in shaping partition relief:

It is an established principle that a court of equity, in decreeing partition, does not act ministerially and in obedience to the call of those who have a right to the partition, but founds itself on its general jurisdiction as a court of equity, and administers its relief . . . according to its own notions of general justice and equity between the parties.

[Newman v. Chase, 70 N.J. 254, 263 (1976) (quoting Woolston v. Pullen, 88 N.J. Eq. 35, 40 (Ch. 1917)).]

The method of partition is left to the trial court’s discretion in order to reach the most equitable allocation. See Newman, supra, 70 N.J. at 263.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Equitable distribution is inapplicable in a matter involving unmarried parties, despite the extent of their cohabitation; however, joint venturers are entitled to seek a partition of their property when their joint enterprise comes to an end, irrespective of how title is formally held originally appeared on NJ Family Issues on August 27, 2010.

Rule 1:7-4(a) denotes a trial court’s obligation to make findings of facts and state conclusions of law “on every motion decided by a written order that is appealable as of right.” (Emphasis added). Our cases have repeatedly emphasized the importance of a trial judge’s responsibility to provide findings and conclusions to assure informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). In this regard, the oft-cited instruction by the Supreme Court regarding the trial court’s factfinding responsibility bears repeating. The Court emphasized that the

[f]ailure to perform that duty “constitutes a disservice to the litigants, the attorneys and the appellate court.” Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.

[Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]

Without findings relevant to the legal standards, the litigants and the reviewing court “can only speculate about the reasons” for the decision. Rosenberg, supra, 214 N.J. Super. at 304.

Omission of this duty is particularly problematic in Family Part matters, where decisions involve discretionary determinations and have an immediate impact on the children.

Generally, when a trial court has not made adequate findings of fact, the appellate court will remand for the court to make the necessary factual findings. See Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005); Barnett & Herenchak, Inc. v. State of New Jersey, Dep’t of Transp., 276 N.J. Super. 465, 470-73 (App. Div. 1994).

“A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute” that the trial court must resolve. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); see also Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006) (reversing motion on emancipation and requiring a plenary hearing because the court failed to recognize material facts in dispute and evidence beyond the motion papers necessary for resolution of the matter); Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (holding that plenary hearings are required when there are “contested issues of material fact on the basis of conflicting affidavits”).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Without findings relevant to the legal standards, the litigants and the reviewing court can only speculate about the reasons for the decision originally appeared on NJ Family Issues on August 25, 2010.