Opinion
DOCKET NO. A-4826-13T2
06-05-2015
IN THE MATTER OF BLANCHE ZWERDLING.
Richard H. Kotkin argued the cause for appellant Cheryl Trombetta (Law Offices of Richard H. Kotkin, attorneys; Mr. Kotkin, on the brief). Respondents have not filed briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. P-197937. Richard H. Kotkin argued the cause for appellant Cheryl Trombetta (Law Offices of Richard H. Kotkin, attorneys; Mr. Kotkin, on the brief). Respondents have not filed briefs. PER CURIAM
Cheryl Trombetta ("Trombetta") appeals from an order entered by the Chancery Division on May 5, 2014, which awarded Hunziker, Jones & Sweeney, P.A. (the "Hunziker firm") attorney's fees and disbursements of $8657.50. We affirm.
This appeal arises from the following facts. On May 20, 2009, Todd Trombetta, Zwerdling's grandson, filed a verified complaint in the trial court seeking a determination that Blanche Zwerdling ("Zwerdling") was an incapacitated person. According to the complaint, Zwerdling was then ninety-five years old, suffering from dementia and other impairments, and unable to manage her affairs or property.
On November 5, 2009, the court entered a judgment finding that Zwerdling is an incapacitated person, and appointing Susan E. Champion, Esq. ("Champion") and Sandra Scala ("Scala"), Zwerdling's niece, as limited co-guardians of Zwerdling's person and property. On March 16, 2010, the court entered an order providing that either co-guardian could retain an attorney to represent Zwerdling. The order further provided that the co-guardians could manage Zwerdling's legal matters and execute legal documents, but required that they consult with Zwerdling in doing so.
In February 2011, Scala and Zwerdling entered into a letter agreement with the law firm of Jeffrey Samel & Partners to provide services to protect Zwerdling's rights, income and assets. Gary R. Matano, Esq. ("Matano") signed the agreement for the firm and litigated the probate matter. Thereafter, Matano filed a motion to remove Champion as co-guardian, and Champion filed a motion asking the court to accept her resignation. The judge entered an order dated July 28, 2011, which granted Champion's motion, and appointed the Office of Public Guardian for Elderly Adults to replace her.
The July 28, 2011 order was amended by an order entered by the court on August 2, 2011. That order stated that Champion and Scala could continue with "mortgage negotiations" regarding Zwerdling's property on Union Avenue in Paterson. The August 2, 2011 order also stated that Champion and Scala "shall work with the Office of Public Guardian to complete this project and shall have the authority to execute any and all documents."
According to Champion, when the August 2, 2011 order was entered, an application was pending to refinance the Union Avenue property, which was then being held in the Blanche Zwerdling Trust (the "Trust"). Champion stated that the refinancing had been complicated by a leaking oil tank and environmental spill that had to be addressed before the refinancing could be approved.
Thereafter, by order dated March 20, 2012, the court granted Champion's application for counsel fees and disbursements covering services rendered through July 21, 2011. The court also granted fee applications by the guardian ad litem, her court-appointed attorney and Champion's trial counsel, but denied Matano's fee application.
The court entered another order on July 18, 2012, which, among other provisions, denied Matano's motion for the court's recusal and modified the March 20, 2012 order to award Matano some of the fees he had requested. The July 18, 2012 order also stated that Champion was no longer responsible for the refinancing of the Union Avenue property.
Matano initially sought $41,035.67. The court awarded him $4620.
Three appeals were filed challenging orders entered by the court. Matano filed two of the appeals, challenging the denial of his recusal motion and the denial in part of his fee application. Trombetta filed the third appeal, but that appeal was dismissed, apparently for procedural deficiencies. We affirmed the trial court's orders challenged in Matano's appeals. In re Blanche Zwerdling, Nos. A-3795-11, A-6315-11 (App. Div. Aug. 30, 2013).
In November 2013, Champion filed an application on behalf of the Hunziker firm, of which she is a member, seeking an award of counsel fees and disbursements for the time she devoted to the refinancing of the Union Avenue property after July 28, 2011, and the three appeals. In her affidavit of services dated November 21, 2013, Champion sought $7537 for the refinancing, and $13,835 for the appeals, for a total of $21,372. She asked that the fees be assessed against Zwerdling individually, or if her assets were insufficient to satisfy the award, that the fees be assessed against the Trust and constitute a lien upon the Union Avenue property.
In a certification filed with the court opposing the motion, Trombetta stated that she is Zwerdling's granddaughter and the sole beneficiary of the Trust. Trombetta said that if the court granted Champion's motion, it would defeat Zwerdling's intention, which was to structure her assets to ensure that Trombetta was provided for. She indicated that there was no provision in the Trust instrument providing for the payment of attorney's fees. She also said it would not be fair to pay Champion for the time she spent opposing the appeals.
Trombetta's attorney, Richard H. Kotkin ("Kotkin"), also submitted a certification to the court opposing Champion's application. Kotkin stated that Champion was seeking fees for work related to the refinancing of the Union Avenue property, but the refinancing was never completed and did not benefit the Trust. He also said that Champion should not be compensated for the time devoted to the appeals since her objective in those matters was "purely personal." Kotkin stated that the appeals sought in part to deny payment of Champion's fees from the Trust. He asserted that the Trust instrument did not provide for the payment of the fees.
The trial court filed a letter opinion dated May 5, 2014, in which it noted that Zwerdling had died a few days before her 100th birthday. The court said that Zwerdling "once was a force to be reckoned with." She had accumulated wealth and battled with her grandson in litigation, but Zwerdling's grandchildren "only wanted to control [her] money."
The court noted that Trombetta had been living with Zwerdling and "allowed years of cat feces and urine" to accumulate making the home "uninhabitable." The amount of litigation and attorney's fees in the case had been driven by Trombetta's desire to have Zwerdling live "without supervision" and the efforts by "multiple parties" to control Zwerdling's "funds and resources."
The court found that Champion was entitled to fees pursuant to N.J.S.A. 3B:18-6, which allows fees to be paid to a fiduciary who is a duly licensed attorney when the attorney performs professional services in addition to his or her fiduciary duties. The court awarded Champion's law firm $3657.50 for the services she provided for the refinancing, and $5000 for the work done on the appeals. The court stated that, in the appeals, Champion had acted to fulfill her obligation "to preserve the record not for herself, but for" Zwerdling.
The court memorialized its decision awarding fees in the amount of $8657.50 to the Hunziker firm in an order dated May 5, 2014. The order stated that, in the event that Zwerdling's assets are not immediately available to satisfy the award and any accumulated interest thereon, the award would be satisfied out of the Trust's assets. In addition, the award was reduced to judgment against Zwerdling's estate and the Trust.
Trombetta appeals and argues: (1) there is no basis for the payment of Champion's attorney's fees from the Trust; (2) the payment of the fees from the Trust defeats Zwerdling's intent; and (3) the trial court abused its discretion in awarding attorney's fees from the Trust. We are convinced from our review of the record that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.
When authorized, the award of counsel fees is committed to the sound discretion of the court. Heyert v. Taddese, 431 N.J. Super. 388, 444 (App. Div. 2013). A trial court's decision to award attorney's fees is entitled to substantial deference and will be disturbed only if shown to be a clear abuse of discretion. Ibid. (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)).
As the trial court pointed out in its May 5, 2014 letter opinion, N.J.S.A. 3B:18-6 authorizes the court to award Champion attorney's fees. She had been appointed as a fiduciary and performed professional services in addition to her fiduciary duties. As noted, Champion provided professional services in connection with the refinancing of the Union Avenue property and the prior appeals.
The fact that the refinancing was not completed is irrelevant because Champion provided professional services related to that transaction. The court limited Champion's fees to those related to the professional services, and specifically refused to compensate her for "basic guardian activity." Furthermore, Champion's participation in the earlier appeals was justified, and the attorney's fees awarded for the appeals were reasonable.
We also reject Trombetta's contention that the trial court abused its discretion by ordering that Champion's fees should be paid from Zwerdling's assets or the Trust, if Zwerdling's assets are insufficient to satisfy the award. Champion served as a co-fiduciary for Zwerdling due to her incapacity, and Zwerdling benefited from the professional services that Champion provided. The court properly determined that Zwerdling's assets should be applied to payment of the fees, regardless of whether they were being held in the Trust.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION