                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-1446-16T3
                                                         A-1552-16T3
IN THE MATTER OF THE ADOPTION
OF A CHILD BY M.E.B. and K.N.
______________________________

M.E.B. and K.N.,

        Plaintiffs-Appellants,

v.

S.D.G. and R.C.N.-B.,

     Defendants-Respondents.
_______________________________

              Argued May 30, 2018 – Decided July 16, 2018

              Before Judges Koblitz, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Morris County,
              Docket Nos. FA-14-0051-15 and FD-14-0059-16.

              Jason R. Melzer argued the cause for
              appellants (Cole Schotz, PC, attorneys; Joseph
              Barbiere and Jason R. Melzer, of counsel and
              on the brief; Neoma M. Ayala on the brief).

              Jeffrey S. Mandel argued the cause for
              respondents (Law Offices of Jeffrey S. Mandel,
              LLC, attorneys; Jeffrey S. Mandel, of counsel
              and on the brief).

PER CURIAM
      Plaintiffs, paternal grandparents M.E.B. and K.N., filed an

adoption complaint seeking to adopt their granddaughter, E.G. E.G.

is the daughter of defendant S.D.G. and plaintiffs' son, defendant

R.C.N.-B.        Plaintiffs received temporary custody of E.G., but

produced no evidence of abandonment and defendants did not consent

to the adoption.         The complaint was ultimately dismissed for lack

of subject matter jurisdiction.                  During the pendency of this

action, plaintiffs filed a visitation complaint, which was also

contested by defendants.           The visitation action was eventually

voluntarily dismissed by plaintiffs.

      The trial court awarded attorney's fees to defendants as to

both actions, which is the sole issue on appeal.                      Because the

court did not abuse its discretion, we affirm.

                                       I.

      At   the    time    the   original       adoption   complaint   was    filed,

plaintiffs resided in Woodstock, New York.                  S.D.G. resided with

her   parents     in   Mendham   Township,        New   Jersey   while   R.C.N.-B.

initially resided with plaintiffs in Woodstock.                    R.C.N.-B. and

S.D.G. are not married to each other and were twenty-one and twenty

years old, respectively, when E.G. was born.

      S.D.G. has retained custody of E.G. and resided at her

parents' residence with E.G. in Mendham since her birth.                    Both of

S.D.G.'s parents provided financial support to both E.G. and S.D.G.

                                           2                                A-1446-16T3
S.D.G.'s parents provided a nanny to assist in E.G.'s care. S.D.G.

enrolled E.G. in a daycare in Mendham.                   According to S.D.G.,

R.C.N.-B. assisted in the care of E.G., who stayed at plaintiffs'

residence in Woodstock approximately eight days per month since

October 2014.

      S.D.G. suffers from bipolar disorder and is required to take

medication.    S.D.G. admits that she stopped taking her medication

in late 2014 and began abusing alcohol.             On January 2, 2015, she

admitted     herself     into   the   Carrier    Clinic,     a    rehabilitation

facility in New Jersey, where she remained for four days.                       She

then admitted herself into a rehabilitation facility in Florida,

where she stayed for one month.          While S.D.G. received treatment,

E.G. remained in the care of S.D.G.'s parents in Mendham.

      According to S.D.G., the nanny became unavailable during this

time and plaintiffs offered their assistance in caring for E.G.

S.D.G.   consented       to   E.G.    spending    time   with      R.C.N.-B.    and

plaintiffs in Woodstock.          While in the rehabilitation facility,

S.D.G. applied to a macrobiotic cooking school in Massachusetts

and enrolled in the two-and-a-half month program after returning

home from the facility.         During this period, S.D.G. permitted E.G.

to   spend   time   in    Woodstock     with     R.C.N.-B.       and   plaintiffs.

According to plaintiffs, they began caring for E.G. on an "every



                                         3                                A-1446-16T3
other week schedule."         S.D.G.'s parents also brought E.G. to

Massachusetts to spend time with S.D.G. for a few weekends.

      On   February     20,   2015,      plaintiffs      filed     the   adoption

complaint.     The complaint contained allegations that since the

child's    birth,    plaintiffs    had       provided   significant      care      and

financial support for her and defendants had not "substantially

provided care[] for the child independently."                 It also alleged

that defendant S.D.G. abandoned E.G. and was not reasonably likely

to be able to care for her because of mental health and alcohol

abuse issues.       The complaint additionally contained allegations

that R.C.N.-B. had abandoned E.G.

      On March 6, 2015, the trial court entered an order for a

preliminary and final hearing, and granted plaintiffs temporary

custody of E.G., pending the hearings.              E.G. was declared a ward

of the court and the order permitted plaintiffs to take her to

their home in New York.       According to R.C.N.-B., after he received

the   order   on    March   12,   2015,      he   was   involved   in    a    verbal

altercation with his mother, K.N., which led K.N. to throw him out

of the Woodstock residence.           R.C.N.-B. and S.D.G. attempted to

retrieve E.G., but the New York State Police informed them that

plaintiffs would have them arrested if they entered the property.

      On March 18, 2015, defendants filed an ex parte order to show

cause seeking to:      (1) vacate the March 6, 2015 order; (2) dismiss

                                         4                                   A-1446-16T3
the Verified Complaint with prejudice; and (3) regain custody of

E.G.

       On March 19, 2015, the trial court held an ex parte hearing

on the order to show cause.         S.D.G. and R.C.N.-B. both testified

at the hearing; both stated that they did not abandon E.G. and did

not consent to plaintiffs' attempt to adopt their child.                  The

trial   court   considered   both    of   them   credible,   and   concluded

plaintiffs did not have standing. The court dismissed the adoption

complaint, vacated the order of temporary custody to plaintiffs

and returned legal and physical custody of E.G. back to S.D.G. and

R.C.N.-B.

       Plaintiffs appealed and on January 29, 2016, we issued a

published opinion, In Re Adoption of Child ex rel. M.E.B., 444

N.J. Super. 83, 94 (App. Div. 2016), reversing the trial court's

order dismissing plaintiffs' complaint based on the ex parte nature

of the proceedings and remanded to a different judge.

       On remand, defendants filed a motion to dismiss the adoption

complaint for lack of subject matter jurisdiction and standing.

On August 3, 2016, the trial court dismissed plaintiffs' complaint

for lack of subject matter jurisdiction and awarded defendants

attorney's fees and costs solely for the adoption action.             In its

statement of reasons, the trial court explained that because

plaintiffs were not New Jersey residents and did not receive the

                                      5                             A-1446-16T3
child from an approved agency, the court lacked subject matter

jurisdiction over the action.         The court based this conclusion on

New Jersey case law, stating that "the test for subject-matter

jurisdiction under the [Adoption Act] for nonresident plaintiffs

is that they must have received the child from an approved agency."

N.J.S.A. 9:3-42.

     In its statement of reasons, the trial court also addressed

defendants' request for counsel fees and costs.            The court awarded

counsel fees and costs to defendants and focused on their few

financial resources compared to plaintiffs.           The court also noted

that plaintiffs filed this action in a court without subject matter

jurisdiction      and    therefore    "forced   [S.D.G.]    to   defend   her

constitutional rights in this forum unnecessarily."               The court

ordered defendants to provide an affidavit of services before

awarding an exact dollar amount of fees.

     On August 31, 2016, defendants filed a certification of

services requesting fees of $115,133.59 relating solely to the

adoption action.        On November 2, 2016, the trial court issued an

amended   order    and    Statement    of   Reasons   granting    reasonable

attorney's fees and costs of $67,079.19.         The court referenced the

August 3, 2016 order in which it found the following two issues

most compelling:         "the financial resources available to both

parties, and the procedural outcome of the matter."               The court

                                       6                            A-1446-16T3
reasoned     that    defendants    could       not    afford   their   own    legal

representation without depending on their parents and were forced

to defend their constitutional right to remain parents to their

child.     The court also "found the case was unreasonably advanced"

and believed plaintiffs acted in bad faith because they knew E.G.

was not available for adoption.                For these reasons, the court

awarded attorney's fees to defendants for the reduced amount of

$67,079.19.

                                      II.

      On   July     27,   2015,   before      their      adoption   complaint   was

dismissed, having not visited with E.G. for more than a year,

plaintiffs filed a complaint seeking visitation.                    The complaint

alleged that plaintiffs were the primary caretakers of their

grandchild until defendants "abruptly denied [p]laintiffs any

contact" with her.          On September 29, 2015, defendants filed a

counterclaim      seeking    dismissal        of   the    visitation   action   and

requesting an award of attorney's fees.                   On March 11, 2016, the

trial court denied without prejudice defendants' motion to dismiss

the   visitation      complaint     and       plaintiffs'      cross-motion     for

preliminary visitation.

      On August 31, 2016, plaintiffs filed a motion to voluntarily

dismiss the visitation action with prejudice and without costs or

fees to either party.        Defendants filed a cross-motion to dismiss

                                          7                               A-1446-16T3
the     visitation     action    with     prejudice       and    award   reasonable

attorney's fees, submitting a certification of services seeking

$45,963.36 in attorney's fees.

      The trial court awarded defendants $15,118.61 in attorney's

fees related to the visitation action.                 The court stated:

            The reasons for granting counsel fees in
            connection     with      the     [g]randparent
            [v]isitation [c]omplaint are substantially
            the same as those stated regarding the
            granting of attorney's fee[s] in the adoption
            matter. The [c]ourt also notes that a consent
            for dismissal would appear to have been a much
            more cost effective plan for ending this
            grandparent visitation matter rather than
            going through the trouble of a formal motion
            with briefs.      [Defendants have] clearly
            demonstrated through this arduous proceeding
            that   [they]   would   have   acquiesced   in
            dismissing this matter.

      On January 4, 2017, the court submitted an amplification of

reasons as to the visitation action pursuant to Rule 2:5-1(b).

The court stated it was "extremely unlikely that [plaintiffs]

would    have   been   able     to    satisfy    the    burden   of   proving   that

visitation is necessary to avoid harm to the child."

      Plaintiffs contend that the court erred in awarding fees for

the     visitation     action        because    it     "improperly    imputed    the

[plaintiffs'] alleged bad faith in the adoption action to the

visitation action." According to plaintiffs, there was no evidence




                                           8                               A-1446-16T3
of bad faith in the filing of the visitation action as evidenced

by their decision to voluntarily dismiss the action.

     Defendants ask this court to focus solely on the award of

attorney's fees in the visitation action and the amount of fees

in both actions.   Defendants contend that the trial court properly

recited all the necessary factors that a court should consider in

a fee application and correctly applied the factors to their

situation.   They argue that plaintiffs' argument that they relied

on their counsel's judgment regarding the existence of subject

matter jurisdiction does not negate the fact that they "pursued

litigation in bad faith and based on false representations."

Defendants point to the fact that plaintiffs obtained custody of

E.G. ex parte through the court, and then pushed R.C.N.-B. out of

their house when they served him with the order that granted them

custody.

                                III.

     In reviewing the grant or denial of a counsel fee award, we

accord significant deference to the trial judge's determinations.

McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007).

A trial judge's "fee determinations . . . will be disturbed only

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

of discretion."    Packard-Bamberger & Co. v. Collier, 167 N.J. 427,

444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

                                  9                         A-1446-16T3
Appellate courts must intervene when a trial judge's determination

of fees is based on "irrelevant or inappropriate factors, or

amounts to a clear error in judgment" and is "not premised upon

consideration of all relevant factors."         Masone v. Levine, 382

N.J. Super. 181, 193 (App. Div. 2005) (citing Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002)).

     Pursuant to Rule 5:3-5(c), courts are permitted to award

attorney's fees in family actions.        See R. 4:42-9(a).        We accord

deference    to   the   family   courts   because    of    their    "special

jurisdiction and expertise in family matters."            Cesare v. Cesare,

154 N.J. 394, 413 (1998).

     Rule 5:3-5(c) sets forth nine factors courts must consider

in determining a fee allowance:

            (1) the     financial    circumstances    of     the
            parties;

            (2) the ability of the parties to pay their
            own fees or to contribute to the fees of the
            other party;

            (3) the reasonableness and good faith of the
            positions advanced by the parties both during
            and prior to trial;

            (4) the extent of the fees incurred by both
            parties;

            (5) any fees previously awarded;

            (6) the amount of fees previously paid to
            counsel by each party;


                                    10                              A-1446-16T3
            (7) the results obtained;

            (8) the degree to which fees were incurred to
            enforce   existing   orders  or   to   compel
            discovery; and

            (9) any other factor bearing on the fairness
            of an award.

            [R. 5:3-5(c); see also Mani v. Mani, 183
            N.J. 70, 94-95 (2005).]

     Courts should consider "whether the party requesting the fees

is in financial need; whether the party against whom the fees are

sought has the ability to pay; the good or bad faith of either

party . . .; the nature and extent of the services rendered; and

the reasonableness of the fees."         Mani, 183 N.J. at 94-95.     Courts

do   not   need    to   enumerate   every    factor   in   reaching    their

determination.     Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div.

2013).     However, a counsel fee award that is not supported by

adequate findings must be set aside.        See Gordon v. Rozenwald, 380

N.J. Super. 55, 79 (App. Div. 2005).

     "Fees in family actions are normally awarded to permit parties

with unequal financial positions to litigate (in good faith) on

an equal footing."      J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App.

Div. 2012) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch.

Div. 1992)).      "[B]ad faith for counsel fee purposes relates only

to the conduct of the litigation . . . ."         Mani, 183 N.J. at 95.



                                    11                              A-1446-16T3
                                             IV.

       We    affirm      the   grant    of     counsel    fees    in    both     actions

substantially for the reasons set forth in Judge Louis S. Sceusi's

initial and amplified reasons set forth on August 3 and November

2,   2016,      and   January   4,     2017.       We   add   only     the   following.

Plaintiffs make the point on appeal that they sought guidance

about jurisdiction ex parte by letter from the County Surrogate

prior to filing the adoption complaint.                   The ex parte nature of

that request minimizes its utility, as the facts set forth in the

complaint were disputed by the parents.                  Plaintiffs also contend

that    it   was      defendants     who     prolonged    the    dismissal       of    the

visitation complaint by seeking counsel fees.                    The fact defendants

sought counsel fees is not an appropriate defense to starting

litigation that was unlikely to succeed.

       Judge Sceusi was familiar with this litigation and had the

expertise to determine whether plaintiffs litigated merely with

the common ranker frequently evidenced in family matters, or with

an     unfair      and    unrealistic        determination       to     "save"      their

granddaughter from her own parents.                New Jersey has long accepted

that termination of parental rights followed by adoption is not a

method to provide children with a "better" home.                       In re Adoption

of Child by J.E.V., 442 N.J. Super. 472, 485-86 (App. Div. 2015).



                                             12                                  A-1446-16T3
     As Judge Sceusi stated, if plaintiffs were concerned about

the safety of their granddaughter in the care of her parents, the

proper avenue was to call the child protective services agency.

The courts are infrequently helpful in resolving intergenerational

conflict.   And they are extremely costly.      The counsel fees

awarded, only a portion of what was incurred by the parties, was

undoubtedly an unfortunate burden on plaintiffs, who reaped no

benefit from this misguided litigation.

     Affirmed.




                               13                         A-1446-16T3
