                                NOT FOR PUBLICATION WITHOUT THE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-3843-16T2

K.B.,1

          Plaintiff-Appellant,

v.

T.B.,

     Defendant-Respondent.
_______________________________

                    Submitted October 29, 2018 – Decided November 21, 2018

                    Before Judges Sabatino and Haas.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FM-07-1749-12.

                    Pamela M. Cerruti, attorney for appellant.

                    T.B., respondent pro se.

PER CURIAM



1
     We refer to the parties by initials to protect their privacy. R. 1:38-3(d)(1).
      In this post-judgment matrimonial matter, plaintiff appeals from the

Family Part's March 30, 2017 order, following a plenary hearing, requiring him

to pay defendant $75,000 in counsel fees. Because defendant did not produce

an affidavit of services or any other evidence detailing those fees, and the trial

judge did not make any findings concerning the reasonableness of the fees

charged, we are constrained to reverse and remand for further proceedings.

      The parties are fully familiar with the history of this litigation and the

facts relevant to this appeal. Therefore, we need only summarize the most

salient facts here.

      The parties were married in 1990, and divorced in 2013.               They

incorporated their Property Settlement Agreement (PSA) into their final

judgment of divorce. During the marriage, plaintiff worked as a mark eting

director for Donovan Data Systems (DDS). In 2012, DDS merged with a

company called Mediaocean, and plaintiff remained there until March 31, 2014.

      Although his annual income was as high as $1.15 million during the

marriage, plaintiff was earning $250,000 plus commissions at the time of the

divorce. As alimony, Article 3.1 of the PSA required plaintiff to pay defendant




                                                                          A-3843-16T2
                                        2
one-third of his annual gross earned income up to $480,000, and 20% of his

gross earned income up to $1.150 million as it was received. 2

      In Article 4.9, the PSA addressed the equitable distribution of 5000 stock

options that plaintiff received as a result of his employment with DDS. The

stock options were scheduled to vest on four different dates. The first 3000

options would vest on April 9, 2012; the next 665 on March 1, 2013; 670 more

on March 1, 2014; and the final 665 on March 1, 2015. Pursuant to the PSA,

defendant was to receive a designated portion of each of the first three

distributions, but was not entitled to receive any of the options that would vest

on March 1, 2015.

      Article 3.1 of the PSA stated that for purposes of determining his alimony

obligation, plaintiff's annual gross income did not include any of the stock

options to be received by him under Article 4.9.       The parties appended a

constructive trust agreement concerning the stock options (Callahan Trust) to

the PSA.    In pertinent part, Paragraph D.9 of the Callahan Trust required

plaintiff to notify defendant within twenty-four hours if his employment at




2
  As used in Article 3.1, the term "gross earned income" included deferred
compensation. However, any income plaintiff earned over $1.150 million in a
year was not subject to alimony.
                                                                         A-3843-16T2
                                       3
MediaOcean was terminated, or if he intended to exercise any of the stock

options. Paragraph D.10 stated that if defendant lost the right to have plaintiff

            exercise any stock options on her behalf as a result of
            [his] failure to comply with th[is] notice provision[,]
            the [c]ourt shall have reserved jurisdiction to determine
            the amount of the monetary loss, if any, resulting to
            [defendant] and shall order reimbursement to her by
            [plaintiff] of that monetary loss, plus counsel fees and
            associated costs.

      In the event one of the parties did not comply with the PSA, Article 8.22

stated:

            The parties represent and acknowledge that if either
            party must seek enforcement of the provisions
            contained within this Agreement, the defaulting party
            shall pay 100% of the other party's counsel fees and
            costs in connection with [them].           The parties
            specifically waive their respective rights to a court
            determination of this issue under R. 5:3-5, Williams v.
            Williams, 59 N.J. 229 (1971), and any prevailing
            counsel fee law at the time of enforcement.

      In May 2015, defendant filed a motion to enforce certain provisions of the

PSA. Among other things, defendant alleged that plaintiff had failed to pay

certain medical expenses, car payments, and life insurance premiums as required

by the PSA. With particular relevance to the present appeal, defendant asserted

she reviewed plaintiff's 2014 tax return and learned he received an unexplained

$1 million from his former employer, DDS. He presented a W-2 form for this


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                                        4
payment, which defendant argued demonstrated it was some form of gross

income, such as deferred income because defendant was no longer working at

DDS. Defendant asked the court to order plaintiff to pay her one-third of the $1

million as alimony pursuant to Article 3.1 of the PSA, together with her counsel

fees under Article 8.22.

      Plaintiff opposed the motion concerning the $1 million payment. He

alleged that Michael Donovan, the founder and chief executive officer of DDS,

agreed to accelerate the vesting of the last group of stock options, so that he

would receive the third and fourth groups by the end of March 2014. Donovan

then agreed to buy 1000 stock options back from plaintiff for $1 million. These

1000 options did not include any of the 112 options defendant was supposed to

receive as her share from the third group. Therefore, only plaintiff benefitted

from this arrangement. Because the $1 million represented payment for stock

options, plaintiff argued that defendant was not entitled to any portion of it as

alimony under Article 3.1 of the PSA. In response, defendant alleged that

plaintiff violated the Callahan Trust by failing to notify her of the early vesting

of the options, thereby depriving her of the opportunity to also sell her options

back to Donovan.




                                                                           A-3843-16T2
                                        5
      On July 13, 2015, the trial judge granted defendant's enforcement motion

in part, and denied it in part. The judge ordered plaintiff to make a number of

the payments sought by defendant, including reimbursement of medical

expenses, car expenses, and insurance premiums. However, the judge denied

defendant's motion for additional alimony. In so ruling, the judge accepted

plaintiff's representation "that the monies were from the sale of his share of the

[DDS] stock options."

      Nevertheless, the judge awarded defendant $3527.50 in counsel fees and

costs under Article 8.22 of the PSA. Notably, the judge stated that because she

"only granted some of the relief sought by defendant, which was enforcement of

plaintiff's obligations under the [PSA], and denied the other relief," defendant

was only entitled to approximately half of the fees she claimed. The judge also

reviewed the affidavit of services prepared by defendant's attorney, and struck a

number of the requests for payment in determining an appropriate fee award.

      Defendant filed a motion for reconsideration. At oral argument on the

motion, plaintiff and his attorney were unable to provide specific information

concerning the sale of the stock. Accordingly, on April 1, 2016, the judge

granted defendant's motion.     The judge stated that "[b]ecause plaintiff has

presented so many conflicting explanations and facts as to the $1 million


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                                        6
payment," a plenary hearing was needed "to determine the truth about the $1

million payment." The judge ordered the parties to exchange discovery. She

also directed plaintiff "to advance defendant $25,000 as a litigation fund to cover

the legal fees that defendant will incur for the discovery and the plenary

hearing."

      At the hearing, plaintiff, Donovan, and the DDS's chief financial officer,

Mike Begley, testified. Donavan explained that he accelerated plaintiff's receipt

of the fourth group of stock options because plaintiff was about to lose his job

with Mediaocean. Donovan stated that he purchased the options back from

plaintiff and other similarly situated employees.

      The judge observed that Donovan's testimony concerning the stock

options was particularly credible and helpful in determining what had occurred.

She found that he "presented as a genuine and truthful person and as a ge nerous

employer who cared about his employees and generously compensated them for

their work and dedication to DDS." Based upon Donovan's testimony, the judge

concluded in a March 30, 2017 written opinion that the $1 million payment

Donovan made to plaintiff was for 1000 of his stock options, rather than a

payment of deferred income. Therefore, the judge held that defendant was not

entitled to any portion of that payment as alimony under Article 3.1 of the PSA.


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                                        7
      However, the judge determined that plaintiff violated the notice

provisions set forth in the Callahan Trust as part of the PSA by failing to notify

defendant that he was being terminated by Mediaocean or of his intention to sell

the stock options back to Donovan. The judge found that if plaintiff had advised

defendant of the sale, she would have had the opportunity to sell some of her

allocated options as well. "To remedy that failure of [plaintiff]," the judge

ordered plaintiff to pay defendant $14,677.60 pursuant to a formula the judge

set forth in her decision. Plaintiff does not dispute this ruling on appeal. 3

      Finally, the judge addressed defendant's motion for counsel fees under

Article 8.22 of the PSA. Defendant alleged she had incurred $75,000 in counsel

fees in connection with the plenary hearing. Because the judge previously

ordered plaintiff to advance her $25,000 to cover her legal expenses, defendant

sought to compel plaintiff to pay the additional $50,000.




3
   The judge also found that plaintiff failed to pay defendant an additional
$15,895 in alimony based on income he received in 2014 other than the payment
for the stock options. On appeal, plaintiff asserts that the judge later rescinded
this portion of the order, finding that it had been entered by mistake. Defendant
disagrees with this allegation. Neither party provides documentation to support
their respective claims. Because we are remanding this matter to address the
issue of counsel fees, the parties are free to address this portion of the order as
part of those proceedings.


                                                                            A-3843-16T2
                                         8
      The judge did not require defendant to present a certification of services

detailing her attorney's fees. The record on appeal does not even include a

retainer agreement. In stark contrast to how the judge handled counsel fees in

her July 13, 2015 order, where she carefully reviewed every aspect of the fee

request, this time the judge simply ordered plaintiff to pay all of defendant's

fees, without requiring her to submit any proof that the fees were actually

incurred or reasonable. 4

      The judge denied plaintiff's motion for counsel fees, explaining that she

did so because plaintiff "earns substantially more than [d]efendant," and

defendant's "motion for reconsideration was not filed in bad faith." This appeal

followed.

      On appeal, plaintiff primarily argues that the judge erred in granting

defendant all of her fees because she did not prevail on all of the issues she

raised at the plenary hearing, and failed to demonstrate that she actually incurred

$75,000 in fees or that the fees were reasonable. We agree.



4
   After ordering plaintiff to pay all of defendant's counsel fees, the judge
directed plaintiff to "provide . . . documented proof that her legal fees for the . .
. post-judgment application were $75,000." The record does not disclose
whether this documentation was ever provided. In any event, and as discussed
below, the judge should not have ordered any fees without first carefully
reviewing defendant's attorney's bills.
                                                                             A-3843-16T2
                                         9
      It is well settled that a trial judge's award of counsel fees should "be

disturbed only on the rarest occasions, and then only because of a clear abuse of

discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). However, our

Supreme Court has cautioned that trial courts "should not accept passively the

submissions of counsel to support" their client's request for attorney's fees. Id.

at 335. "It does not follow that the amount of time actually expended is the

amount of time reasonably expended." Ibid. (quoting Copeland v. Marshall, 641

F.2d 880, 891 (D.C. Cir. 1980)). Hours are not considered reasonably expended

if they are "excessive, redundant, or otherwise unnecessary" or are spent on

"claims on which the party did not succeed" or "that were distinct in all respects

from claims on which the party did succeed." Ibid. (internal quotation marks

and citations omitted).

      Applying these principles, we conclude that the judge mistakenly

exercised her discretion in granting defendant all of the fees she sought in

connection with the plenary hearing. Article 8.22 of the PSA stated that if a

party sought enforcement of a provision of the PSA, "the defaulting party shall

pay 100% of the other party's counsel fees and costs in connection with same."

Although not specifically stated in the PSA, however, neither party disputes that

fees should only be awarded under this provision if the enforcement motion is


                                                                          A-3843-16T2
                                       10
successful and the fees are reasonable. Indeed, the judge interpreted Article

8.22 in this fashion in awarding fees on defendant's original enforcement motion

and, at that time, only granted defendant's motion with respect to those portions

of her motion where enforcement was ordered and then, only for the fees the

judge determined were reasonable.

      Unfortunately, the judge did not consider defendant's request for fees

following the plenary hearing in the same fashion. Instead, the judge simply

granted defendant all the fees she sought even though defendant did not submit

a certification of the services rendered by her attorney, or a retainer agreement.

The judge gave no consideration to the fact that defendant's primary argument

at the hearing, her claim that she was entitled to a portion of the $1 million

payment as alimony, was not successful. The judge also did not explain why

she was awarding more than the $25,000 in fees she ordered plaintiff to pay

prior to the hearing to cover her discovery and trial costs. Because we have no

basis for determining on this record whether the fees sought by defendant were

limited to those matters on which she succeeded, and were reasonable in terms

of the hours spent and amounts charged, we reverse the judge's award of $75,000

in counsel fees to defendant and remand for further proceedings.




                                                                          A-3843-16T2
                                       11
      In so ruling, we reject the two other contentions plaintiff raises on appeal.

As previously noted, Article 8.22 permitted fees to be granted if a party brought

a successful enforcement motion without regard to whether the party also met

the standards set forth in Rule 5:3-5. Plaintiff asserts that the judge incorrectly

considered those standards in determining that defendant was entitled to fees.

We disagree. While the judge discussed the Rule 5:3-5 factors, she specifically

stated that she was only doing so to demonstrate that defendant would have been

awarded fees even if the parties had not included Article 8.22 in the PSA. Thus,

there was nothing improper about the judge reviewing these factors in her

opinion.

      Finally, plaintiff argues that he should have been awarded fees under

Article 8.3 of the PSA. That provision states that if a party "institutes an action

. . . to set aside [the PSA] or any of its terms or provision . . . for any reason,"

the other party will be entitled to "attorney's fees and related legal expenses and

costs incurred in connection with the defense of such action or proceeding in the

event that the clams or defenses of invalidity are dismissed, rejected or otherwise

unsuccessful." However, defendant did not seek to overturn the PSA or any of

its provisions and, instead, sought to enforce Article 3.1, which required plaintiff

to pay her a portion of his gross income, by claiming that the $1 million, which


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                                        12
she did not know was a payment for the stock options, was deferred

compensation.    Therefore, Article 8.3 clearly did not apply to defendant's

enforcement motion.

      In sum, we reverse the trial judge's award of counsel fees to defendant and

remand for further proceedings consistent with this opinion.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-3843-16T2
                                      13
