                                NOT FOR PUBLICATION WITHOUT THE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-1810-18T4

MARYBETH JONES,

          Plaintiff-Appellant,

v.

ANDREW VIOLA, ESQUIRE,
and ALBANO VIOLA, LLC,

     Defendants-Respondents.
___________________________

                   Argued February 3, 2020 – Decided February 27, 2020

                   Before Judges Sabatino, Geiger and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Docket L-4285-16.

                   Mark J. Molz argued the cause for appellant.

                   Matthew S. Marrone argued the cause for respondent
                   (Goldberg Segalla LLP, attorneys; Matthew S. Marrone
                   and Seth Lawrence Laver, of counsel; Andrew P.
                   Carroll, on the brief).

PER CURIAM
      Appellant1, the custodial parent of two adult autistic children, brought this

legal malpractice case against the attorney who had represented her years earlier

in her divorce case against the children's father. After negotiations by that

attorney, appellant entered into a settlement agreement with her husband, in

which she agreed to receive alimony for only a limited duration of nine years.

      Appellant claims her attorney erroneously advised her that the Family Part

would extend that nine-year period, as long as she showed a continued need for

the support. Finding it difficult to work and support herself because of her

children's special needs, appellant tried through successor counsel to have the

courts extend the nine-year alimony period, but to no avail. This malpractice

lawsuit ensued.

      The trial court granted the divorce attorney summary judgment dismissing

plaintiff's claims against him and his law firm. Among other things, the court

concluded that: the lawsuit was time-barred under the statute of limitations;

appellant was estopped from bringing the malpractice case because of her stated

assent to the terms of the divorce agreement; and she could not establish




1
  We use the term "appellant" to avoid confusion, as she was the "defendant" in
the underlying divorce action and presently is the "plaintiff" in this legal
malpractice case.
                                                                           A-1810-18T4
                                        2
proximate causation of damages. For the reasons that follow, we reverse and

remand the matter for trial.

                                       I.

      Before we detail the facts and procedural history in the record, we first

address the concepts of limited duration alimony and permanent alimony. These

concepts are key aspects of this case and the underlying Family Part case.

      By statute, the Legislature has established several categories of alimony.

Two of these categories, pertinent here, are: (1) limited duration alimony, and

(2) permanent alimony. 2

      Limited duration alimony ("LDA"), also known as term alimony, consists

of alimony payable for a specific period of time. The Legislature has expressly

authorized LDA as a permitted form of alimony, along with "rehabilitative" and

"reimbursement" alimony.        N.J.S.A. 2A:34-23(c)(1) to (3).    The statute

obligates a court to consider whether alimony is appropriate "for any or all" of

those three categories. Ibid.

      LDA can be appropriate in cases involving marriages of intermediate or

shorter length, in which the spouse seeking support has an economic need, but


2
    In September 2014 the Legislature abolished permanent alimony by
amendment to N.J.S.A. 2A:34-23(b). The parties do not dispute that the present
case is governed by pre-2014 alimony law.
                                                                        A-1810-18T4
                                        3
also possesses "the skills and education necessary to return to the workforce" at

some time in the immediate future. Gordon v. Rozenwald, 380 N.J. Super. 55,

66 (App. Div. 2005) (citing Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div.

2000)). LDA is designed to address a dependent spouse's post-divorce needs in

situations where permanent or rehabilitative alimony is not warranted , but where

economic assistance to the dependent spouse for a defined period of time is

nevertheless justified. See Gnall v. Gnall, 432 N.J. Super. 129, 150-51 (App.

Div. 2013), rev'd on other grounds, 222 N.J. 414 (2015); J.E.V. v. K.V., 426

N.J. Super. 475, 485-86 (App. Div. 2012).

      By contrast, permanent alimony traditionally was awarded in certain

situations of longer-term marriages. "The purpose of this type of alimony is to

allow the dependent spouse to live the same lifestyle to which he or she grew

accustomed during the marriage." Gnall, 222 N.J. at 430 (citing Crews v. Crews,

164 N.J. 11, 26 (2000)). "When awarding permanent alimony, courts have great

discretion, because 'no two cases are alike.'"      Ibid. (quoting Bonanno v.

Bonanno, 4 N.J. 268, 273 (1950)). When fixing the annual amount of permanent

alimony, courts were to evaluate the "actual needs" of the dependent spouse and

the "actual means" of the payor spouse, as well as several other factors. Id. at

430-31.


                                                                         A-1810-18T4
                                       4
      "Limited duration alimony is not to be awarded in circumstances where

permanent alimony is warranted." Id. at 431. "All other statutory factors being

in equipoise, the duration of the marriage mark[ed] the defining instructions

between whether permanent or limited duration alimony is warranted and

awarded." Ibid. (quoting Cox, 335 N.J. Super. at 482).

      Notably, the statutory scheme made it more difficult for an LDA recipient

to obtain a court order extending the duration of the alimony period rather than

the alimony amount. As the statute dictates, "[a]n award of alimony for a limited

duration may be modified based either upon changed circumstances, or upon the

non-occurrence of circumstances that the [trial] court found would occur at the

time of the award." N.J.S.A. 2A:34-23(c); see also Lepis v. Lepis, 83 N.J. 139,

152-53      (1980)      (delineating       the    "changed       circumstances"

test for modifying support). "The court may modify the amount of such an

[LDA] award, but shall not modify the length of the term except in unusual

circumstances." N.J.S.A. 2A:34-23(c) (emphasis added).

      The statute does not define the concept of "unusual" (as opposed to merely

"changed") circumstances.     Our case law has recognized that the "unusual

circumstances" test is a heightened standard. Gonzalez-Posse v. Ricciardulli,

410 N.J. Super. 340, 356 (App. Div. 2009). The Legislature established a


                                                                         A-1810-18T4
                                       5
presumption that the "temporal aspect of [an LDA award] be preserved." Ibid.

To overcome that presumption, a recipient seeking to extend the alimony term

must demonstrate that the LDA had been originally intended to serve as "a

substitute for permanent alimony premised upon a promise or expectation of

alternative funds for support that has not been fulfilled or realized." Gordon v.

Rozenwald, 380 N.J. Super. 55, 70 (App. Div. 2005). The Legislature adopted

the heightened standard for extending the term of LDA to avoid unfairness to

supporting ex-spouses, and to avoid burdening them with "regular extensions

based upon comparative needs and ability to pay." Id. at 67.

                                       II.

      With this statutory backdrop in mind, we turn to the record in this matter.

      A. The 2003 Divorce and Settlement Agreement

      Appellant and her spouse married in October 1985.            After nearly

seventeen years of marriage, the husband filed a complaint in the Family Part in

August 2002, suing appellant for divorce. Appellant hired defendant Andrew

Viola, Esquire to represent her in the divorce case. Appellant entered into a

written fee agreement with Viola for an hourly rate of $150, with a $1,500

retainer. The husband was represented by his own counsel.




                                                                         A-1810-18T4
                                       6
        In 2002, the husband was a truck driver making approximately $85,000

per year.3 Appellant worked as a florist, making $13,000 per year.

        Appellant and the husband are the parents of two children of the marriage:

a daughter born in September 1988, and a son born in May 1992. Both children

are diagnosed with autism, and the daughter is also diagnosed with Aspe rger

Syndrome. According to appellant, although the son is now over twenty-one

years old, he "functions on an average level of [an] eight or nine-year-old [child]

with language skills of a three year old [child and] needs 24 hours care[.]" Both

children currently reside with appellant, and they did so at the time of the

couple's divorce in 2003. The son was additionally diagnosed with epilepsy in

2009.

        Through their divorce counsel, the couple submitted initial settlement

proposals in anticipation of the Matrimonial Early Settlement Panel ("MESP")

scheduled for January 28, 2003.         The parties disagreed in their MESP

submissions regarding several substantive issues. However, ultimately, the only

issues the parties could not agree on were the amount of an alimony award and

child support to be paid by the husband to appellant.


3
  The husband asserted in his Marital Early Settlement Panel memo that due to
his employer losing a contract he had been working less hours since December
2002, and his weekly wages had declined by approximately $300 per week.
                                                                           A-1810-18T4
                                         7
      The husband did not offer any alimony in his MESP proposal. Meanwhile,

Viola advocated in his MESP memo that appellant "must care for two (2) autistic

children," that "[the husband] was the main means of support between the parties

during the course of this seventeen (17) year marriage," that "[appellant] is

[forty-one] years old and has no special skills or training," and therefore, "this

seems to be a permanent alimony case." Viola took the position that the husband

should pay permanent alimony in the amount of $400 per week.

      The MESP panel recommended appellant be awarded her requested sum

of $400 per week in permanent alimony and $226 per week in child support.

The matter did not settle during the MESP.

      About two weeks after the MESP session, on February 10, 2003, the

husband, through his counsel, offered appellant $300 per week in LDA for a

term of seven years, and $140 per week in child support ($70 per child).

Appellant rejected that offer.

      Thereafter, the couple reached an apparent agreement that the husband

would pay appellant $315 per week in alimony and $200 per week in child

support, for a period of four years. However, Viola wrote a letter to the Family

Part judge, notifying the court that appellant had decided she "will be unable to

maintain a comparable standard of living at that support level," and that "[she]


                                                                          A-1810-18T4
                                        8
cannot maintain herself and her (2) autistic children unless the total support

exceeds $600.00 as recommended by the MESP Panel."

      Ultimately, the couple reached a final agreement that was memorialized

in a Dual Final Judgment of Divorce on May 28, 2003. Section 2.2 of the divorce

judgment required the husband to pay appellant $200 per week ($100 per child)

in child support. This figure was calculated based on a stipulation that the

husband's annual income was then approximately $80,000, and appellant's

annual income was approximately $18,000.

      Section 3.1 of the divorce judgment, which is language that appellant now

alleges was not correctly explained to her by Viola at the time of the agreement,

provides:

            3.1 SPOUSAL SUPPORT. The parties stipulate that
            Husband has a current annual income of $80,000.00 and
            Wife has a current annual income in the amount of
            $18,000.00. For the mutual promises and covenants
            contained herein, Husband hereby stipulates and agrees
            to pay Wife an amount of $325.00 weekly as alimony
            for her support and maintenance. This amount will be
            paid on a bi-weekly basis, due Friday, for a term of nine
            (9) years from the date of this Order. Further the parties
            stipulate that said alimony will terminate upon the
            marriage or cohabitation of Wife. If two payments are
            more than ten (10) days late, Wife may seek an ex-parte
            order, upon certification, to have all payments through
            the appropriate probation department via wage
            execution. Wife may make Lepis or Cruz [sic] [Crews]


                                                                         A-1810-18T4
                                        9
            application after the expiration of the said (9) year term
            to continue support.[4]

            [(emphasis added).]

The couple also agreed that husband would fund a special needs trust for the

children, backed by a $250,000 life insurance policy.

      Before entering the final judgment, the Family Part judge conducted an

uncontested divorce proceeding, at which the terms of the Settlement Agreement

were discussed. The parties supplied only one page of a transcript created from

that hearing, and it does not contain appellant's testimony. 5

      B. The Husband's Post-Judgment Attempts to Reduce Alimony

      In February 2005, the husband moved to reduce his alimony payment

obligations. His supporting certification claimed that his income had "shrunk

15% from $80,000 to $68,000," and that he had experienced multiple layoffs,

which constituted a "substantial change in circumstances." In her opposition to

husband's motion, appellant asserted that "[t]he current support amount was



4
  See Lepis, 83 N.J. at 139, and Crews v. Crews, 164 N.J. 11, 28 (2000) (further
elaborating upon Lepis and instructing that a party seeking modification of an
alimony award must demonstrate that changed circumstances have substantially
impaired his or her ability to support himself or herself).
5
  Unfortunately, the full transcript no longer exists, and the audio recording of
the proceeding has not been preserved.
                                                                         A-1810-18T4
                                       10
arrived at after substantial debate and an analysis of [the husband's] ability to

earn based on past history." The court denied the husband's request for a

downward modification.

      The husband filed another motion seeking a reduction of the alimony

award in September 2008, again claiming a reduction of his income. Appellant

retained Viola as her counsel to oppose the application. The Family Part denied

the husband's request for a reduction, and ordered the husband "shall continue

to pay alimony to [appellant] in the amount of $325 per week until May 2012."

      C. Appellant's Post-Judgment Attempts to Increase and Extend Alimony

      In 2012, appellant retained a successor attorney to represent her on a

motion to extend her alimony award upon its scheduled nine-year expiration,

and also increase it. Her new counsel wrote a letter to the husband in March

2012, notifying him that he had been retained by appellant to seek to extend the

length of her alimony. The successor attorney referenced the parties' 2003

agreement, stating that it "specifically provides that your former wife has the

right to make a Lepis or Crews application after the expiration of your initial

nine-year term to continue support."




                                                                         A-1810-18T4
                                       11
      In her May 2012 supporting certification, appellant contended her marital

budget at the time of the divorce in 2003 was approximately $5,700 per month,

however she and husband were already separated for two years at that point.

She certified that her then-current budget in 2012 was $5,000 per month,

"obviously a significant reduction in [her] lifestyle." She earned $9,100 in 2011

working in elder care. She certified her gross monthly income was $3,393,

which included income from her employment, child support, and alimony. The

parties' son also received $364.32 per month in Social Security benefits.

Appellant contended that a termination of alimony, as scheduled, would result

in a "drastic decrease in [her] income from $3,393 per month (alimony, c hild

support and income) to $1,995.20."

      Based on these figures, the length of the marriage, the "extensive

additional responsibilities [she has] for [their] two special needs children," her

"very limited income," "[her] age," and "the fact that currently, [she] must

struggle even with alimony to meet one-half of the standard of living enjoyed

during the marriage," appellant requested the Family Part to convert the limited

duration of the ex-husband's alimony payments to an award of permanent

alimony. Appellant further requested the court to require her ex-husband to




                                                                          A-1810-18T4
                                       12
"continue to pay [her] permanent alimony in the amount of at least $500.00 per

week."

         The husband opposed appellant's motion for relief. He asserted that the

couple's marital budget was never $5,700. Instead, he certified they had lived

on a budget of between $3,000 and $4,000 per month "as [appellant] testified

[at the 2003 uncontested divorce proceeding] in court." He further argued that

the parties' divorce agreement did not alleviate appellant's burden to demonstrate

"changed circumstances" to increase alimony, and "unusual circumstances" to

extend the duration of payments.

         The husband asserted that, while his own income had decreased

dramatically since the divorce, appellant's "needs remain basically the same

today as they were when [they] divorced in 2003." He also emphasized "her

family unit has the benefit of [the daughter's] earnings to offset some of her

expenses and the monthly stipend paid to [appellant] by Social Security for [the

son]."

         After hearing oral argument, the Family Part judge denied appellant's

motion to extend the LDA beyond the nine-year term specified in the divorce

judgment. In his June 29, 2012 oral opinion, the Family Part judge found that

appellant had neither demonstrated unusual circumstances under N.J.S.A.


                                                                          A-1810-18T4
                                       13
2A:34-23(c), or a change in circumstances under Lepis and Crews to justify the

requested temporal extension or increase. Among other things, the judge noted

that the daughter, who was age fifteen at the time of the divorce, was by that

point the age of twenty-three and was earning $200 per week outside the home.

The judge further noted that appellant was receiving Social Security benefits

and other resources that were, in combination, more than what she had been

receiving in 2003.

      D. Appellant's Motion for Reconsideration in the Family Part

      Appellant retained a different successor attorney to represent her on a

motion to reconsider the Family Part's denial of her request to extend the LDA

term. That second successor obtained the assistance of Viola, who drafted and

signed a certification in support of his former client's reconsideration motion.

      Among other things, Viola recounted in his certification the efforts he had

made on behalf of appellant in 2003 when he negotiated the LDA provision with

the husband's attorney. As Viola noted, the issue of the duration of alimony was

"the subject of substantial and at times contentious negotiations." As Viola

recalled the context:

                  3.     Plaintiff [the husband] argued that this was
            not a permanent alimony case, that Defendant
            [appellant] should be entitled to a period of
            rehabilitative alimony whereupon she should be able to

                                                                          A-1810-18T4
                                       14
           support herself in a manner enjoyed during the
           marriage.

                  4.   Defendant argued that she barely worked
           during the marriage, had a lack of marketable skills that
           would benefit her in the workplace and was charged
           with the care of two (2) autistic children that would
           interfere with her ability in the future to obtain
           employment or the training to obtain significant
           employment.

     Viola's certification then explained his understanding of the nine-year

LDA provision that was ultimately achieved:

                 5.    With trial fast approaching, a compromise
           was struck. Plaintiff agreed to pay term alimony for a
           period of nine (9) years however Defendant would
           retain the right to make an application to continue
           alimony if the end of the term found her unable to
           support herself in the manner enjoyed during the
           marriage. This answered Plaintiff's concerns respecting
           permanent alimony but protected Defendant in the
           event that her financial need continued.

                  6.    It was the clear understanding of the parties
           that if Defendant never obtained the employment or
           training to allow her to support herself in the manner
           enjoyed during the marriage that support would
           continue.

                 7.     The Final Judgment of Divorce was drafted
           by Plaintiff's counsel. Perhaps in retrospect it might
           have been drafted more clearly.          However, the
           agreement plainly states that "Wife may make Lepis or
           Cruz [sic Crews] application after the expiration of the
           said nine (9) year term to continue support.


                                                                        A-1810-18T4
                                      15
                  8.     The Crews case at the time required the
            Court to look at whether the supported spouse could
            maintain a lifestyle that is reasonably comparable to the
            standard of living enjoyed during the marriage.

                  9.    It was my clear recollection that all parties
            agreed that if Defendant could meet this standard of
            living, alimony would terminate. If Defendant could
            not meet this standard of living, alimony would
            continue.

                   10. The clause to allow Defendant to file an
            application after nine (9) years to continue support was
            specifically inserted to protect Defendant in the event
            her financial circumstances never improved during the
            term.

            [(Emphasis added).]

      In stark contrast, the ex-husband's attorney certified there "was no

unarticulated understanding that [alimony] would continue if defendant did not

get a job or did not train herself to get one. Further, he maintained "there was

no agreement that if the defendant could not maintain a lifestyle reasonably

comparable to the standard of living enjoyed during the marriage that alimony

would continue." The ex-husband's counsel further asserted that the language

in Section 3.1 of the divorce judgment was superfluous, because it gave

appellant no rights that she did not already have and did not exempt her from

the applicable requirements of the alimony statute, N.J.S.A. 2A:34-23(c).



                                                                        A-1810-18T4
                                      16
      The Family Part judge denied appellant's reconsideration motion in an oral

decision on August 31, 2012. The judge again concluded that appellant had not

made a prima facie showing of either changed circumstances under Lepis and

Crews, or unusual circumstances under N.J.S.A. 2A:34-23(c).

      E. Appellant's 2013 Appeal from the Family Part

      With the assistance of her second successor counsel, appellant appealed

the Family Part's denial of her request to extend the LDA term beyond the

agreed-upon nine years. On June 17, 2013, a panel of this court issued an

unpublished opinion affirming the Family Part's decision, substantially for the

reasons expressed by the trial court. Jones v. Jones, No. A-0238-12 (App. Div.

June 17, 2013) (slip op. at 1).

      In reaching our decision, we emphasized that "voluntary and consensual"

agreements are "entitled to considerable weight with respect to their validity and

enforceability, especially when incorporated into a judgment of divorce." Id. at

6. We noted that "[b]ased on the length of the parties' marriage, defendant was

potentially entitled to permanent alimony." Ibid. However, "for any number of

reasons, represented by counsel, defendant chose to negotiate a [divorce

agreement] that included a nine-year limited duration alimony provision,

guaranteeing her [total] payment of $152,100, and allowing her the opportunity


                                                                          A-1810-18T4
                                       17
to make a Lepis or Crews application after that date." Ibid.          Our opinion

specifically agreed with the trial court that appellant "failed to establish unusual

circumstances under the statute or a substantial change in circumstances on the

issue of the ability to support herself to justify extending her alimony under the

Lepis standard." Id. at 5.

      F. The Current Malpractice Lawsuit

      Appellant thereafter filed the current legal malpractice action.          Her

amended complaint asserts she "relied specifically upon Viola's representation

that she would be entitled to continue the alimony if she needed it." She claims

Viola was negligent, that he breached contractual and fiduciary duties owed to

her, and that he deviated from accepted standards of care.

      In support of her contentions, appellant obtained expert reports from two

experienced matrimonial attorneys. Their reports opine that Viola deviated from

the applicable standards of care by failing to negotiate permanent alimony for

appellant and, also, by giving her erroneous legal advice that she would be able

to obtain an extension of the nine-year LDA period from the Family Part as long

as her financial need for that support continued.

      The defense, meanwhile, retained its own legal expert, who opined that

the operative factors did not necessarily require the Family Part to award


                                                                            A-1810-18T4
                                        18
permanent alimony if the case had gone to trial. The defense expert contended

that Viola obtained a potential benefit for appellant by negotiating a

Lepis/Crews "changed circumstances" standard in the agreement, relaxing the

statute's requirement of "unusual circumstances."

      The defense expert further disputed appellant's claims of proximately-

caused damage, contending it is speculative that the Family Part would have

awarded more generous alimony terms if the case had gone to trial. The defense

also contended (although without filing a third-party complaint) that appellant's

successor counsel should have been more effective in presenting appellant's

motion to extend her alimony award.

      During her deposition in this malpractice case, appellant recalled that

Viola had discussed with her the legal significance of the nine-year LDA period.

According to appellant's testimony, Viola "never mentioned a motion or

application" to the court would be needed to extend alimony. As she put it,

Viola "just said if I needed it [the alimony] at the end of nine years, it would

continue."

      In his own deposition, Viola recalled having "extended conversations"

with appellant about the standards for LDA modification and time extension.

As Viola described it, he told appellant that "she could come to court and make


                                                                         A-1810-18T4
                                      19
an application to [sic] – for either a change of circumstances or to continue

support at the end of the term." [(emphasis added).] Viola denied representing

to appellant that "she would be protected."

      G. The Summary Judgment Motion

      Defendants moved for summary judgment on several grounds. Following

briefing and oral argument, the Law Division judge granted defendants' motion,

for several reasons set forth in an oral opinion issued on November 30, 2018.

      First, the motion judge ruled that appellant's malpractice case was time-

barred, based on a premise that her cause of action accrued in 2003 when the

divorce agreement was entered. Second, the judge ruled that appellant was

equitably estopped from contending her attorney's alleged malpractice had

caused her injury, because she had given her knowing and voluntary assent to

the divorce agreement. Third, the judge found that, even if appellant's claims

were not procedurally or equitably barred, she could not prove proximate

causation of damages, because her contention that a Family Part judge would

have awarded her permanent alimony at a trial was fatally "speculative."

                                      III.

      In legal malpractice cases, as in other cases, summary judgment is

appropriate only where there is no genuine dispute of material fact. Sommers v.


                                                                       A-1810-18T4
                                      20
McKinney, 287 N.J. Super. 1, 9 (App. Div. 1996) (citing Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520 (1995)). "[W]hen reviewing summary judgment

motions, we must view the 'evidential materials . . . in the light most favorable

to the non-moving party.'" Puder v. Buechel, 183 N.J. 428, 440 (2005) (quoting

Brill, 142 N.J. at 540). We apply these well-settled principles to this appeal.

      The governing law of legal malpractice is likewise well-established.

Legal malpractice suits are grounded in the tort of negligence. McGrogan v.

Till, 167 N.J. 414, 425 (2001). The elements of a cause of action for legal

malpractice are: "(1) the existence of an attorney-client relationship creating a

duty of care by the defendant attorney, (2) the breach of that duty by the

defendant, and (3) proximate causation of the damages claimed by the plaintiff."

Ibid. (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)). A lawyer

is obligated "to exercise that degree of reasonable knowledge and skill that

lawyers of ordinary ability and skill possess and exercise." St. Pius X House of

Retreats v. Diocese of Camden, 88 N.J. 571, 588 (1982).

                                       A.

      Before considering the substance of appellant's legal malpractice claims,

we first must consider the threshold questions of whether her lawsuit is time -




                                                                          A-1810-18T4
                                      21
barred or equitably estopped.         We disagree with the motion judge's

determination that such procedural bars to her lawsuit apply here.

                                        1.

      It is undisputed that the applicable statute of limitations for legal

malpractice cases in this State is the generous six-year period set forth in

N.J.S.A. 2A:14-1. That statute requires a legal malpractice action to commence

within six years from the accrual of the cause of action. Vastano v. Algeier, 178

N.J. 230, 236 (2003). A cause of action "accrues when an attorney's breach of

professional duty proximately causes a plaintiff's damages." Ibid. (quoting

Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993)).

      The Supreme Court has recognized the unfairness of an inflexible

application of the statute of limitations in legal malpractice cases, in situations

where a client would not reasonably be aware of "the underlying factual basis

for a cause of action" to timely file a complaint. Ibid. (quoting Grunwald, 131

N.J. at 492). As the Court has instructed, in some circumstances "a client may

not be able to detect the essential facts of a malpractice claim with ease or speed

because of the complexity of the issues or proceedings, or because of the special

nature of the attorney-client relationship." Ibid. Therefore, the statute of

limitations does not accrue until "the client suffers actual damage and discovers,


                                                                           A-1810-18T4
                                       22
or through the use of reasonable diligence should discover, the facts essential to

the malpractice claim." Ibid. (citing Grunwald, 131 N.J. at 494).

      Based on our objective review of the record, appellant's cause of action

for legal malpractice did not accrue until 2012 when the Family Part denied her

motion to extend the LDA alimony period beyond the nine years specified in the

divorce judgment. Appellant did not sustain "actual damage" until those motion

proceedings in the Family Part made clear that she would not be able to have the

alimony extended simply because she "continued" to need that financial support.

Instead, at the very least, a change in circumstances (or, as the statute prescribes,

"unusual" circumstances) had to be proven.

      Viola's 2012 certification was predicated on this mistaken premise, as he

construed the divorce judgment to mean that if appellant could not maintain her

standard of living without her ex-husband's support, "alimony would continue."

It was not until the Family Part interpreted and adjudicated the agreement in

2012 that this mistaken assumption was flatly repudiated.

      Appellant's cause of action did not accrue until her expectation of

continued alimony was dashed. This legal malpractice case was initially filed

in 2016, well within six years of the Family Part's adverse 2012 ruling, which

was later upheld on appeal in 2013.


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      We appreciate the difficulties of an attorney being forced to defend advice

he gave to a client more than a decade earlier. But that difficulty is largely a

function of the generous six-year limitations statute and the Supreme Court's

equity-based accrual doctrine (which, parenthetically, also at times requires

physicians and other professionals to defend actions that they took many years

earlier before the harm to the plaintiff ultimately manifested). We accordingly

reverse the court's statute of limitations ruling.

                                         2.

      Defendant's equitable estoppel arguments pose more difficult issues, but

also, on close inspection, should not preclude appellant's malpractice case.

These estoppel principles have been principally delineated in a series of three

opinions of the Supreme Court.

      First, in Ziegelheim v. Apollo, 128 N.J. 250 (1992), the Court held that a

legal malpractice case could proceed against the client's former attorney who

had allegedly been negligent in representing her in her divorce action, despite

the fact that she had voluntarily agreed to the terms of the divorce settlement

and had acknowledged that it was "fair." Id. at 257. The Court ruled that the

client was not equitably estopped from contending in her malpractice case that

her former attorney had negligently convinced her to accept an agreement that a


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                                        24
reasonably prudent divorce attorney would have recommended her to reject. Id.

at 260. Although the Court cautioned against excessive malpractice lawsuits by

disgruntled former clients, it explained that "[t]he fact that a party received a

settlement that was 'fair and equitable' does not mean necessarily that the party's

attorney was competent or that the party would not have received a more

favorable settlement had the party's incompetent attorney been competent." Id.

at 265.

      The Court limited these principles from Ziegelheim to some extent in its

later opinion in Puder, 183 N.J. at 430. In that case, a wife orally accepted a

settlement in a divorce action and was in the process of memorializing the

agreement. After consulting with a second attorney, she then reneged on the

agreement. Id. at 432. The husband filed a motion to enforce the first agreement,

and the wife filed a malpractice claim against her first attorney. While the

malpractice case was pending, and before the court ruled on the enforceability

of the first agreement, the parties reached a second settlement agreement. Id. at

430. The Supreme Court held that the trial court appropriately dismissed the

malpractice lawsuit, because the wife had made sworn representations to the

Family Part that the second settlement was "acceptable" and "fair." Ibid.




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      The Court distinguished Puder from Ziegelheim mainly because the wife

in Puder had made a "calculated decision" to accept the second settlement

despite being aware of the discovery inadequacies that had preceded the first

settlement. Id. at 442-43. The wife assented to the second settlement "well

aware that the [first] attorney was negligent." Id. at 443. The Court also noted

the substantial time that had passed since the attorney had represented the client.

Id. at 445. Consequently, the wife was equitably estopped from pursuing the

malpractice case in such circumstances. Id. at 444-45.

      Most recently, the Court in Guido v. Duane Morris, 202 N.J. 79 (2010),

further illuminated these principles, in the setting of a legal malpractice case

arising out of business litigation. In Guido, a corporate officer sued his former

law firm for malpractice, alleging the firm had not adequately disclosed to him

the stock disadvantages that would accompany a settlement. Id. at 83. The

plaintiff attested in court that he understood the terms of the settlement and did

not have any concerns. Id. at 84. He then brought a malpractice action against

his former law firm for failing to warn him about the voting implications of the

settlement agreement with his former employer. Id. at 85-86. The trial court

ultimately ruled the malpractice case could proceed, despite the settlement of

the business case.


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      The Supreme Court upheld that result, agreeing with the trial court that

the client in Guido was not equitably estopped from bringing the malpractice

case. Among other things, the Court noted the client had never attested that the

settlement of his business case was fair and adequate. Id. at 95.

      Applying these principles from Ziegelheim, Puder, and Guido here, we

conclude that appellant is not equitably estopped from pursuing this legal

malpractice case in the distinctive circumstances presented. We are mindful that

Section 6.9 of the divorce judgment contains a recital that both spouses deem ed

the terms of their agreement to be "fair and reasonable," as follows:

            6.9 Voluntary Execution. The parties each
            acknowledge and represent that this Agreement is fair
            and reasonable under the circumstances and has been
            spread upon the record in open court on May 15, 2003
            and agreed to by each of them, of their own free will,
            free from persuasion, fraud, undue influence or
            economic, physical or emotional duress of any kind
            whatsoever exerted by the other or by other persons.

            [(emphasis added).]

      We appreciate the representation of appellant's counsel at oral argument

before us that, although no full transcript of the 2003 uncontested divorce

proceeding now exists, it would have been customary for both spouses to have

acknowledged in open court under oath that they believed the settlement terms

were fair and reasonable.

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      Even so, we perceive the present circumstances to be distinguishable from

the setting in Puder. Here, the client was not aware at the time of the divorce

settlement that her attorney had been negligent. As we have already no ted, it

was not apparent until the motion practice in 2012 before the Family Part that

the divorce agreement would not—as appellant and Viola had incorrectly

presumed—allow appellant to keep receiving alimony based simply upon a

showing of continued need.

      The recital in Section 6.9 is therefore based upon a faulty premise, at least

from the perspective of appellant.          Under the circumstances, appellant

reasonably could have thought the settlement was "fair" and "reasonable" only

because her lawyer supposedly had advised her that alimony would be

extendable beyond the nine-year LDA term upon mere proof of continued need

and an inability to maintain her lifestyle.      Again, we are mindful of the

intervening passage of time, but that long delay is not entirely appellant's fault.

She reasonably took action when the nine-year LDA deadline was looming and

endeavored at that time to obtain judicial relief. She did not "lie in the weeds."

      We accordingly reverse the motion judge's estoppel ruling.




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                                      IV.

      We lastly turn to the merits of the malpractice case. As we must, we view

the summary judgment record in a light most favorable to appellant. W.J.A. v.

D.A., 210 N.J. 229, 238 (2012). Having done so, we objectively perceive there

are numerous genuine issues of liability and damages that are appropriate for a

jury to evaluate.

      Appellant has presented a more than plausible case—supported by her two

experts—that she received inadequate advice and representation in her divorce

action. Viola's certification substantiates that he himself erroneously believed

that alimony could be extended so long as appellant could show a continued

need for the support. That standard is not the law, nor is it the standard

expressed in the divorce judgment.          Instead, at a minimum, "changed"

circumstances were required for the alimony provision to be altered.

      To some extent, Viola did negotiate a benefit for appellant by obtaining

the husband's agreement to a standard of "changed" circumstances under Lepis

and Crews, rather than the harsher "unusual" circumstances imposed by N.J.S.A.

2A:34-23(c). Yet that standard is still more rigorous than the standard of

"continued need" that, according to appellant, Viola had represented to her




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                                      29
would control. Given the alleged incorrect advice, there is a viable issue of

deviation from the requisite standard of care presented for a jury.

      Additionally, we are satisfied that there are genuine and triable issues of

proximate causation. We acknowledge it can never be certain what a Family

Part judge actually would have done if the case had proceeded to trial, and

whether permanent alimony (or, alternatively, a longer period of LDA exceeding

nine years) would have been awarded. The need to imagine, in retrospect, what

might have or was likely to have occurred is inherent in the context of any legal

malpractice case arising out of settled litigation. See, e.g., Lieberman v.

Employers Ins. of Wausau, 84 N.J. 325 (1980). As Lieberman authorizes as an

option, the trial court on remand shall consider allowing the parties "to proceed

through the use of expert testimony as to what as a matter of reasonable

probability would have transpired at the original trial." Id. at 344 (emphasis

added).

      At trial, appellant will have the burden of proving by a preponderance of

the competent, credible evidence, "what injuries were suffered as a proximate

consequence of the attorney's breach of duty." Cortez v. Gindhart, 435 N.J.

Super. 589, 604 (App. Div. 2014) (quoting 2175 Lemoine Ave. Corp. v. Finco,

Inc., 272 N.J. Super. 478, 488 (App. Div. 1994)). As part of the jury's analysis,


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it may consider whether appellant's successor counsel contributed to the alleged

harm by not advocating her interests more persuasively in the 2012 motion

practice and, in particular, by not stressing the son's post-divorce diagnosis of

epilepsy in 2009 that could have further impeded appellant's ability to work.

                                       V.

      For all of these reasons, summary judgment is vacated. In doing so, we

express no views as to an appropriate outcome of the case.

      Reversed and remanded for trial.




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