Levine v. Levine

• Citation: 884 A.2d 222,381 N.J. Super. 1
• Parties: Debra D. LEVINE, Plaintiff, v. Michael B. LEVINE, Defendant. Richard M. Belson, Esq., Petitioner-Appellant, v. Debra D. Levine, Respondent-Respondent.
• Decision Date: 14 October 2005
• Court: Superior Court of New Jersey

884 A.2d 222

381 N.J. Super. 1

Debra D. LEVINE, Plaintiff, v. Michael B. LEVINE, Defendant.

Richard M. Belson, Esq., Petitioner-Appellant, v. Debra D. Levine, Respondent-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued September 13, 2005.

Decided October 14, 2005.

Richard M. Belson, Basking Ridge, argued the cause pro se.

Steven M. Resnick, Short Hills, argued the cause for respondent (Budd Larner, attorney; Mr. Resnick and Christina M. Reger, on the brief).

Before Judges SKILLMAN, AXELRAD and PAYNE.

The opinion of the court was delivered

SKILLMAN, P.J.A.D.

This appeal involves the right of an attorney in a matrimonial action to petition for a charging lien on the client's assets and the procedures to be followed in adjudicating such a petition.

Petitioner Richard M. Belson was the attorney for respondent Debra D. Levine in a matrimonial action she brought against her husband Michael B. Levine. The case was tried over a period of nineteen days beginning in August 2001 and ending in December 2002.¹

One of the disputed issues was respondent's claim for an award of counsel fees against her husband. She sought a total counsel fee award of $388,937.90, of which $365,626.25 constituted Belson's billings and another $23,311.65 the billings of a "backup" attorney retained by respondent during Belson's illness. Although Belson requested a plenary hearing on respondent's claim for counsel fees against her husband,² the court denied the request, deciding the issue solely on the basis of certifications and arguments of counsel.

On June 23, 2003, the trial court issued an oral opinion deciding all issues in the matrimonial action. Regarding counsel fees, the court awarded plaintiff $52,500 to be paid by her husband. In making this award, the court noted that the billing for the legal services provided by respondent's husband were $104,471.25, which was less than one-third the amount Belson had billed to respondent. The court found that Belson had overlitigated the case and that his billings to plaintiff and those of the back-up attorney were excessive:

This Court finds that all in all, the Levine case presented a routine matrimonial matter in which the parties stake out their respective differing positions based upon readily discernible and available economic data.

This Court further finds that from the outset of this litigation, Mr. Belson engaged in a course of conduct specifically designed to protract the litigation in a manner calculated to engender legal fees. It is fair to find that Plaintiff's counsel's focus during the pendente lite period and throughout the trial was centered upon an award of legal fees.

The court concluded that the reasonable and necessary fees for handling the matrimonial action on respondent's behalf were $105,000, half of which should be paid by respondent's husband:

I find the statement of services rendered by [husband's attorney] of $104,471.25 is reasonable and necessary and fairly representative of fees incurred in cases of similar complexity.

Moreover, as I have found that Mr. Levine is in a superior financial position than Mrs. Levine, he should be responsible for one-half of Mrs. Levine's reasonable and necessary legal fees. This Court finds that Mrs. Levine's reasonable and necessary legal fees are $105,000.00. Accordingly, Mr. Levine is responsible for $52,500 of Mrs. Levine's legal fees....

The court also concluded that Belson's conduct in representing respondent warranted referral to the local ethics committees:

In this litigation, the Plaintiff's counsel has doggedly sought to convert the Levine trial into a hearing on his legal fees.... Plaintiff's counsel's billing practices sadly offend the conscience of the Court. They are neither reasonable or necessary. And the ethos of the Court cannot countenance such conduct.

Accordingly, and mindful not only of the Levine family's concerns, but the interest of society as a whole, this Court is impelled to refer the matter to the secretaries of The District 13 and District 10 Ethics Committees, with direction that they fully investigate the matter.³

The trial court entered the judgment of divorce on the same day it issued its oral opinion. Both parties subsequently filed motions for reconsideration, which were denied on August 23, 2003. Neither party appealed from the judgment of divorce or denial of reconsideration.

On July 23, 2003, Belson sent respondent a $307,592.99 bill for unpaid legal services. This bill included $45,333 for legal services and costs incurred since April 1, 2003, the date as of which Belson calculated the fees set forth in his certification in support of respondent's application for counsel fees in the matrimonial action.

On August 1, 2003, respondent sent Belson a letter declining to pay him any counsel fees in addition to the $105,000 the trial court had found to be "reasonable and necessary." On August 19, 2003, Belson sent respondent a letter informing her that the trial court had not made any determination regarding her contractual obligation to pay his fees and costs. This letter stated: "If you and I cannot agree on the total counsel fees involved in this entire matter, then that issue would have to be separately adjudicated either in a Fee Arbitration Hearing such as you have made reference to, or otherwise in court in a separate action." Belson's letter also stated: "[W]hile I can, and will, vigorously defend the righteousness of the fees charged to you and which were never objected to or adversely commented on until August 1, 2003, I am willing to discuss a fair compromise in the interests of finality and the avoidance of even further such litigation, and its attendant time and expense to myself, as well as to you."

Respondent apparently refused to discuss a reduction of Belson's counsel fee claim, and on September 16, 2003, Belson sent respondent a letter informing her that he intended to file suit for the amount she owed him. As required by Rule 1:20A-6, Belson's letter notified respondent of her right to pursue fee arbitration and provided her with the name and address of the secretary to the district fee arbitration committee. Belson's letter closed by stating: "Unless you demand arbitration in 30 days of receipt of this letter, suit will be instituted; and you will no longer have the right to have fee arbitration regarding this bill."

Sometime thereafter, respondent submitted a fee arbitration request to the district committee. However, the committee declined to consider the matter on the ground that the trial court had already made a binding determination that respondent was only obligated to pay Belson the $105,000 that the court had determined to be reasonable and necessary:⁴

Rule 1:20A-2(c)(1) provides the Fee Committee should not have jurisdiction to decide "a fee which is allowed or allowable as a right by a court or agency pursuant to any applicable rule or statute." In this case, Judge Armstrong has already reviewed Mr. Belson's submittal and has determined that a total fee of $105,000.00 is an appropriate fee. Although I understand Mr. Belson takes the position that the Judge was not making a determination as to the fee as between you and he, a review of his opinion which you also provided makes it clear that he has determined that a total fee due would be the $105,000.00, of which Mr. Levine would pay one half and you would pay one half.

Belson alleges that he did not receive either respondent's request for fee arbitration or the fee committee's response until respondent submitted those documents to the trial court as exhibits several months later.

On October 1, 2003, Belson filed a petition in the underlying matrimonial action for "the determination and fixing of an attorney's charging lien" for his unpaid legal fees and costs, which by that time totaled $310,770. The petition sought entry of an order setting a date for a plenary hearing.

The trial court refused to either impose a charging lien upon respondent's assets or schedule a plenary hearing. The court concluded that Belson should instead pursue what the court characterized as "the usual procedure" of filing a separate action to collect the unpaid legal fees he claimed to be owed by respondent. Accordingly, the court entered an order dismissing Belson's petition.

Belson filed a motion for reconsideration.⁵ Before this motion was ruled upon, Belson filed a notice of appeal from the order dismissing his petition, which divested the trial court of jurisdiction. We subsequently remanded the case to afford the trial court an opportunity to consider the motion. By opinion dated March 19, 2004, the trial court reaffirmed its prior decision and denied Belson's motion for reconsideration.

Initially, we note that Belson does not argue that he is entitled to a charging lien on respondent's assets in advance of a plenary hearing. We also note that the parties agree Belson is entitled to a plenary hearing on his fee claim against respondent. See Rosenberg v. Rosenberg, 286 N.J.Super. 58, 63-69, 668 A.2d 84 (App.Div.1995)

(holding that adjudication of reasonableness of attorneys' fee on application for attorney's fee award against other party to matrimonial action is not binding in suit by an attorney against client for attorney's fees); see also Gruhin & Gruhin, P.A. v. Brown, 338 N.J.Super. 276, 280-81, 768 A.2d 822 (App.Div.2001). However, respondent argues that the sole avenue for adjudication of Belson's fee claim is a separate action in the Law Division. Belson argues that he is entitled to a "prompt plenary hearing... within the aegis of the main divorce action" on his petition under N.J.S.A. 2A:13-5. Thus, the only issue is whether Belson must file a separate action in the Law Division for the recovery of his counsel fees or is entitled to a plenary hearing in the trial court on his petition for a charging lien.

N.J.S.A. 2A:13-5, commonly known as the Attorney's Lien Act, provides:

After

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