Leunnith Fioravante v. Matthew Fioravante

majority opinion

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3587-23

A-3603-23

A-3771-23

LEUNNITH FIORAVANTE,

APPROVED FOR PUBLICATION

Plaintiff-Respondent, August 7, 2026

APPELLATE DIVISION

MATTHEW FIORAVANTE,

Defendant-Respondent.

VENTURA, MIESOWITZ AND

KEOUGH, PC,

Appellant.

LEUNNITH FIORAVANTE,

Plaintiff-Respondent,

MATTHEW FIORAVANTE,

Defendant-Respondent.

JAMES A. VIGLIOTTI,

Appellant.

LEUNNITH FIORAVANTE,

Plaintiff-Appellant,

MATTHEW FIORAVANTE,

Defendant-Respondent.

JAMES A. VIGLIOTTI,

Respondent.

Argued (A-3587-23, A-3603-23) and Submitted (A-3771-23)

January 27, 2026 – Decided August 7, 2026

Before Judges Sumners, Susswein 1 and Augostini.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Hudson County,

Docket No. FM-09-2314-22.

Bonnie C. Frost argued the cause for appellant

Ventura, Miesowitz and Keough, PC in A-3587-23

(Einhorn, Barbarito, Frost, Botwinick, Nunn &

Musmanno PC, attorneys; Bonnie C. Frost, Jennifer

Fortunato and Matheu D. Nunn, on the brief).

James A. Vigliotti, appellant, argued the cause on

appellant's behalf in A-3603-23.

Judge Susswein was added to the panel after oral argument with the consent of all counsel to A-3587-23 and A-3603-23.

A-3587-23

Buchan, Palo & Cardamone, LLC, attorneys for

appellant Leunnith Fioravante in A-3771-23

(Stephanie Palo, on the briefs).

Steven M. Resnick argued the cause for respondent

Matthew Fioravante in A-3587-23 and A-3603-23

(Resnick Law Firm LLC, attorneys; Steven M.

Resnick, on the brief).

Resnick Law Firm LLC, attorneys for respondent

Matthew Fioravante in A-3771-23 (Steven M.

Resnick, of counsel and on the brief).

James A. Vigliotti, self-represented respondent in A3771-23.

The opinion of the court was delivered by

AUGOSTINI, J.A.D.

In these three appeals arising out of the parties' matrimonial litigation,

which were calendared back-to-back and consolidated for purposes of issuing a

single Opinion, plaintiff, Leunnith Fioravante, her former attorney, James A.

Vigliotti, and his firm Ventura, Miesowitz and Keough, PC (the Firm)

challenge the family court's attorneys' fee award set forth in June 17, and June

18, 2024 orders. Additionally, plaintiff challenges the court's denial of her

request for the return of her passport which was held pending her payment of

the outstanding fee award.

We are asked to determine whether the family court abused its

discretion in awarding attorneys' fees in favor of defendant Matthew

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Fioravante and against plaintiff under the parties' postnuptial agreement (PNA)

and the Frivolous Litigation Statute (FLS), N.J.S.A. 2A:15-59.1. We are also

asked to determine whether the court erred in awarding frivolous litigation

sanctions against Vigliotti and the Firm under Rule 1:4-8(a), (b)(3).

Vigliotti represented plaintiff during a plenary hearing to determine the

enforceability of the PNA under New York law. Plaintiff alleged that

defendant coerced her into signing the PNA by promising they would have a

baby together if she signed the agreement. The family court rejected this

allegation, found it wholly without merit, and enforced the PNA. The court

then awarded attorneys' fees in defendant's favor against plaintiff, Vigliotti and

the Firm.

Initially, the family court found plaintiff responsible for $206,197.91 in

attorneys' fees pursuant to the PNA and under the FLS, and Vigliotti and the

Firm, where Vigliotti served as of counsel, were found jointly and severally

liable for $192,545.57 in attorneys' fees under Rule 1:4-8. On June 18, 2024,

the court amended the June 17 order, stating that plaintiff owed $222,254.41 in

attorneys' fees and Vigliotti and the Firm were jointly and severally liable for

$208,602.07 of those fees.

We agree that the family court was permitted to award attorneys' fees

under the PNA, as recognized by Rule 5:3-5(c)'s express language permitting

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fees to a party successful on any claim for "enforcement of agreements

between spouses." The court was required nonetheless to carefully analyze the

Rule 5:3-5(a) and RPC 1.5 factors to establish the lodestar 2 and determine the

reasonableness of the fees. Therefore, we reverse and remand the matter for a

more complete analysis of those factors in determining the attorneys' fee

award. We also hold that the family court misapplied its discretion in

withholding plaintiff's passport until payment of the judgment for attorneys'

fees was satisfied, thereby unduly restricting her right to travel.

Under the FLS, we conclude that the family court erred in finding the

statute applicable to this pre-judgment motion and in finding that defendant's

safe-harbor notices complied with Rule 1:4-8's requirement to provide

adequate notice. We hold that the notices did not adequately alert plaintiff,

Vigliotti and thus the Firm of defendant's intent to seek fees against all three

by not describing the specific conduct of the attorney "alleged to be a violation

of the [Rule]." Toll Bros., Inc. v. Twp. of W. Windsor, 190 N.J. 61, 69 (2007).

Said differently, defendant's notices did not provide plaintiff and Vigliotti with

"The lodestar calculation is defined as the number of hours reasonably expended by the attorney, multiplied by a reasonable hourly rate." PackardBamberger & Co. v. Collier, 167 N.J. 427, 445 (2001) (citing Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995)).

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sufficient notice that he intended to seek a fee award against Vigliotti

personally and the Firm for frivolous litigation. This procedural infirmity is

fatal to defendant's application for frivolous litigation fees.

We summarize the pertinent facts and procedural history from the trial

record.

A. Divorce Litigation

The parties were married on May 19, 2017. Before they were married,

they entered into a prenuptial agreement. 3 On May 14, 2021, the parties

entered into the PNA. Upon signing the PNA, the prenuptial agreement

expired.

On May 6, 2022, plaintiff retained Vigliotti "for the [F]irm" to represent

her in a "matrimonial/domestic relations matter." On June 17, 2022, on

plaintiff's behalf, Vigliotti filed a complaint for divorce seeking, in part, to set

aside the PNA.4 On September 8, 2022, defendant filed an answer and

counterclaim seeking, in part, enforcement of the PNA.

The parties' prenuptial agreement is not at issue in this appeal. 4

Previously, on January 5, 2021, defendant filed for divorce in New York.

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Plaintiff moved for pendente lite support, and defendant cross-moved to

enforce the PNA. On December 9, 2022, the family court granted pendente

lite support without prejudice to a "Mallamo[5] adjustment and/or credit

following determination of the enforceability of the parties' [PNA]." The court

reserved defendant's enforcement application and attorneys' fees "as mandated

by Article XVI(2) of the PNA" pending a plenary hearing and established a

discovery schedule. Following the completion of written discovery, defense

counsel deposed plaintiff.

On December 15, 2023, the family court issued an order continuing

pendente lite support through February 2024. The plenary hearing was

scheduled for February 13, 2024, and the court identified the issues to be

determined as:

Plaintiff's alleged coercion as a basis to not enforce

the [p]ost[n]uptial Agreement, analysis of New York

law on enforceability of the [p]ost[n]uptial Agreement

(to be briefed by counsel, as opposed to choice of law,

which plaintiff's counsel conceded will be New York

law if the [c]ourt rejects plaintiff's coercion position),

estoppel (plaintiff's acceptance of monies prior to the

entry of the [c]ourt's Pendente Lite Order presumably

paid pursuant to the [p]ost[n]uptial Agreement),

whether plaintiffs reply Certification constitutes a

sham affidavit, the impact and analysis of defendant's

[Rule] 1:4-8 demand on attorney[s'] fees, liquidation

of all amounts paid by defendant, total attorneys' fees

Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995).

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and costs and the amount of credit due to defendant,

and the process to proceed to divorce the parties

(whether the enforcement of the [p]ost[n]uptial

Agreement [led] directly to the entry of divorce or

is/are some intermediate steps warranted). The [c]ourt

specifically preludes from this Plenary Hearing

consideration of any basis other than coercion by

plaintiff to challenge the enforceability of the

[p]ost[n]uptial Agreement.

In this order, plaintiff was directed to deposit her passport with the court. On

January 5, 2024, the court denied plaintiff's motion for reconsideration.

The parties agreed in advance that New York law governed the

enforceability of the PNA, 6 while "New Jersey law govern[ed] the

procedural/practice issue of whether plaintiff's post-deposition [c]ertification

[was] a sham." 7 The family court clarified that plaintiff had the burden of

Under New York law, postnuptial agreements are generally enforceable. Gagstetter v. Gagstetter, 727 N.Y.S.2d 435 (App. Div. 2001); see also Hilgendorff v. Hilgendorff, 660 N.Y.S.2d 150 (App. Div. 1997). In New Jersey, postnuptial agreements, also known as "mid-marriage agreements," are generally unenforceable as they are viewed as "inherently coercive." Steele v. Steele, 467 N.J. Super. 414, 436 (App. Div. 2021) (quoting Pacelli v. Pacelli, 319 N.J. Super. 185, 191 (App. Div. 1999)). "A mid-marriage agreement is 'entered into before the marriage [has] lost all of its vitality and when at least one of the parties, without reservation, want[s] the marriage to survive. '" Ibid. (quoting Pacelli, 319 N.J. Super at 190-91).

The court applied New Jersey law to the court's analysis of the reasonableness of the attorneys' fees issue. Neither party raised the issue of whether New York or New Jersey law applies, either to the family court or on appeal. Thus, we deem it waived. Green Knight Capital, LLC v. Calderon, 69

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proof to establish the PNA's unenforceability based solely on the allegation of

coercion.

During the pendency of this application, defendant sent three safe harbor

notices to Vigliotti: two letters dated November 30, 2023, and January 8,

2024; and one email dated December 19, 2023. The letters made no mention

of defendant's intention to seek fees against Vigliotti or his Firm for violation

of Rule 1:4-8. The notices were sent only to Vigliotti and not to plaintiff nor

the Firm. In a letter dated January 13, 2024, Vigliotti informed plaintiff of

defendant's frivolous litigation claims and provided her with the safe harbor

letters and email. He advised his client that, should they lose, "the sanctions

could be severe against you."

B. Plenary Hearing on PNA's Enforceability

The plenary hearing was conducted over two days: February 13 and

February 14, 2024. Three witnesses testified: the parties and Richard

Schioppo, Esq., defendant's former attorney who represented him during the

N.J. Super. 390, 396 (App. Div. 2021) (quoting Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 319 (App. Div. 2017)).

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negotiations and drafting of the PNA. On February 21, 2024, the family court

issued a forty-three-page written decision and order finding the PNA

enforceable under New York law. The court found defendant and Schioppo

credible and determined plaintiff lacked credibility. The court set a briefing

schedule along with a return date for a hearing on defendant's application for

attorneys' fees.

On March 12, 2024, defendant filed a motion seeking attorneys' fees.

During the pendency of the motion, plaintiff notified the family court of her

concerns with her attorney's representation. As a result of these concerns, the

court entered an order directing plaintiff to secure a new attorney within a

week. The court also directed Vigliotti to place his malpractice carrier on

notice.

Additional submissions were filed relative to the application for counsel

fees, sanctions, and the family court's withholding of plaintiff's passport. On

June 3, 2024, counsel for the Firm submitted a letter brief objecting to the

imposition of sanctions against the Firm and asserting its lack of notice of the

fee application.

C. Motion for Attorneys' Fees

On June 17, 2024, the family court conducted oral argument on the issue

of counsel fees. On the same date, the court issued an order and written

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opinion granting defendant's motion for an award of attorneys' fees against

plaintiff pursuant to Article XVI (2) of the PNA. The court determined the

amount of reasonable attorneys' fees owed by plaintiff totaled $206,197.91.

The court also granted defendant's motion for frivolous litigation fees under

the FLS and Rule 1:4-8 against plaintiff, Vigliotti and the Firm in the amount

of $192,545.57. Plaintiff, Vigliotti and the Firm were ordered to remit the

sums within thirty days of the date of the order. The court further denied, in

part, plaintiff's cross-motion to return her passport.

The next day, the family court issued an amended order increasing the

amount of attorneys' fees awarded to defendant based on a supplemental

certification of services of fees through May 23, 2024. The order amended the

amount of the judgments entered against plaintiff from $206,197.01 to

$222,254.41, and against Vigliotti and the Firm from $192,545.57 to

$208,602.07.

On appeal, plaintiff contends the family court erred in assessing

attorneys' fees against her under the PNA because: (1) the fees awarded were

excessive and unreasonable; and (2) the court did not consider her ability to

pay, the circumstances of the parties, and other Rule 5:3-5 factors. Plaintiff

further contends the court erred in assessing frivolous litigation fees against

her because defendant's claims of frivolous litigation focused primarily on

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counsel's actions. Finally, plaintiff asserts the court erred in directing that her

passport continue to be held and not returned to her because of the outstanding

attorneys' fees award.

II.

Generally, an assessment of attorneys' fees is left to the sound discretion

of the trial court, Slutsky v. Slutsky, 451 N.J. Super. 332, 365 (App. Div.

2017), and is reviewed under an abuse of discretion standard, Litton Indus.,

Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) ("[A] reviewing court will

disturb a trial court's award of counsel fees 'only on the rarest of occasions,

and then only because of a clear abuse of discretion.'" (quoting PackardBamberger & Co. v. Collier, 167 N.J. 427, 444 (2001))). We also review a

court's decision to order frivolous lawsuit sanctions under the FLS, and Rule

1:4-8 under an abuse of discretion standard. Borough of Englewood Cliffs v.

Trautner, 478 N.J. Super. 426, 437 (App. Div. 2024) (citing Wolosky v.

Fredon Township, 472 N.J. Super. 315, 327 (App. Div. 2022)).

An abuse of discretion "arises when a decision is 'made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor,

171 N.J. 561, 571 (2002)). "Reversal is warranted 'only if [the decision] "was

not premised upon consideration of all relevant factors, was based upon

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consideration of irrelevant or inappropriate factors, or amounts to a clear error

in judgment."'" Bove v. AkPharma Inc., 460 N.J. Super. 123, 146 (App. Div.

2019) (quoting McDaniel v. Man Wai Lee, 419 N.J. Super 482, 498 (App. Div.

2011)).

We defer to the trial court's findings of fact "when supported by

adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see Gnall v. Gnall, 222 N.J. 414, 428 (2015). That review is

altered, however, in family part cases. Our Supreme Court has noted that

"[b]ecause of the family courts' special jurisdiction and expertise in family

matters, appellate courts should accord deference to family court factfinding."

Cesare, 154 N.J at 413. This deferential standard of review recognizes "the

[family] court's 'special jurisdiction and expertise in family matters.'" Thieme

v. Aucoin-Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare, 154 N.J. at

413). We will not disturb those findings unless they are "so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice." Cesare, 154 N.J. at 412

(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484

(1974)).

"[W]hile deference will ordinarily be given to discretionary decisions,

such decisions will be overturned if they are made under a misconception of

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the applicable law." O'Neill v. City of Newark, 304 N.J. Super. 543, 550

(App. Div. 1997). When the court's decision turns on a legal question that

flows from established facts, the court's decision is not entitled to any

deference, and our review is de novo. See Dempsey v. Alston, 405 N.J. Super.

499, 509 (App. Div. 2009).

III.

A. Attorneys' Fees Awarded Under the PNA

We begin with plaintiff's contention that the trial court erred in assessing

the amount of attorneys' fees owed to defendant because those fees were

excessive and unreasonable. She further contends the court erred by not

analyzing the Rule 5:3-5(c) and RPC 1.5(a) factors in determining the

reasonableness of the fees. "In the field of civil litigation, New Jersey courts

historically follow the 'American Rule,' which provides that litigants must bear

the cost of their own attorneys' fees." Innes v. Marzano-Lesnevich, 224 N.J.

584, 592 (2016). "However, 'a prevailing party can recover those fees if they

are expressly provided for by statute, court rule, or contract.'" Litton Indus.

200 N.J. at 385 (quoting Packard-Bamberger & Co., 167 N.J. at 440).

Generally, a court in a matrimonial action, both pendente lite and at final

judgment, may award a party reasonable attorneys' fees "when the respective

financial circumstances of the parties make the award reasonable and just."

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N.J.S.A. 2A:34-23; see also R. 4:42-9. Rule 5:3-5, subject to the provisions of

Rule 4:42-9 (b), (c), and (d), allows for an award of fees for "any claim for . . .

enforcement of agreements between spouses." In deciding the appropriateness

of an award of attorneys' fees, N.J.S.A. 2A:34-23 provides that the court "shall

consider the factors set forth in the court rule on counsel fees, the financial

circumstances of the parties, and the good or bad faith of either party."

Agreements resolving the parties' matrimonial disputes are "encouraged

and highly valued in our system." Quinn v. Quinn, 225 N.J. 34, 44 (2016).

The enforcement of these agreements is governed by basic contract principles

and, as such, courts should discern and implement the parties' intentions. J.B.

v. W.B., 215 N.J. 305, 326 (2013). "When the intent of the parties is plain and

the language is clear and unambiguous, a court must enforce the agreement as

written, unless doing so would lead to an absurd result." Quinn, 225 N.J. at

45. "A narrow exception to the general rule of enforcing settlement

agreements as the parties intended is the need to reform a settlement agreement

due to 'unconscionability, fraud, or overreaching in the negotiations of the

settlement[.]'" Id. at 47 (alteration in original) (quoting Miller v. Miller, 160

N.J. 408, 419 (1999)).

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In this case, defendant, as the prevailing party, sought to recover

attorneys' fees against plaintiff under Article XVI (2) of the PNA, which

provides:

If either party commences an action or proceeding, or

files any motion, petition, or order to show cause, to

modify, alter, rescind, declare null and void, or set

aside this Agreement, in whole or in part, or to obtain

property distribution or spousal support, other than is

provided in and consistent with the provisions of this

Agreement, then in such event if such party's action,

proceeding, motion or order to show cause does not

result in that party receiving substantially all of the

relief requested, then that petitioning party shall pay

all of the other party's reasonable attorneys',

accountants', expert and other professional fees such

other party incurred in defending against and/or

opposing such action or proceeding. Both parties

specifically consent that the amount of such

reasonable attorneys', accountants', expert, and other

professional fees and expenses may be decided by the

court upon affidavit or affirmation as applicable,

without need for an evidentiary hearing.

[(Emphasis added).]

Having enforced the PNA, the family court relied upon this provision in

finding plaintiff responsible for defendant's reasonable fees "incurred in

defending against and/or opposing" plaintiff's challenge to the enforceability

of the PNA.

At oral argument on defendant's motion, the parties agreed that the court

did not need to consider the Rule 5:3-5(c) factors in its fee-shifting analysis.

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Plaintiff now argues that the court erred in that regard and the fees imposed are

excessive. Defendant argues that because the parties agreed that the court

need not consider those factors, the court did not err in its analysis. We

disagree.

"The assessment of counsel fees is discretionary." Slutsky, 451 N.J.

Super. at 365. When deciding whether to impose attorneys' fees on another

party, the court must engage in a two-step analysis. First, the court must

decide whether to shift the fees in the first place, and if so, then the court must

determine the reasonableness of the fees and to what extent those fees should

be imposed on the other party. J.E.V. v. K.V., 426 N.J. Super 475, 493 (App.

Div. 2012); R. 5:3-5(c).

In evaluating an attorneys' fee-shifting provision in the context of a

marital agreement, the family court need not determine whether fee shifting is

permissible because it is provided for by agreement of the parties as well as

court rule and statute. The court must assess nonetheless whether the fee -shifting provision is fair and reasonable in the context of the agreement.

In the present case, the parties' agreement addressed the circumstances

under which attorneys' fees shall be imposed. The plain language of the

relevant provision clearly states that plaintiff as the non-prevailing party "shall

pay all of the other party's reasonable attorneys' . . . fees." (Emphasis added).

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This provision expressly conveys the parties' intent not to subject the issue of

whether fees should be shifted to the usual discretion of the family court as

provided in Rule 4:42-9(a). The PNA provided for payment of reasonable

attorneys' fees to the prevailing party if there had been a challenge to the PNA.

Although the court concluded that the PNA was enforceable, the court needed

to make specific findings as to whether this fee-shifting provision was fair, just

and reasonable and, thus, enforceable. The court's decision lacked such a

finding, summarily concluding that "[u]nder the PNA, plaintiff [was] entitled

to a total of $176,000."

The second step of the analysis that the family court had to undertake

was to determine the reasonableness of the fees sought. Regardless of the

basis for a fee award, "fees . . . are governed by principles of reasonableness."

Walker v. Giuffree, 209 N.J. 124, 127-28 (2012). A court's "first step in

awarding a reasonable amount of attorney[s'] fees is determining the lodestar,

'which equals "the number of hours reasonably expended multiplied by a

reasonable hourly rate."'" Jacobs v. Mark Lindsay & Son Plumbing &

Heating, Inc., 458 N.J. Super. 194, 209 (App. Div. 2019) (quoting Furst v.

Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)).

[T]he trial court's determination of the lodestar

amount is the most significant element in the award of

a reasonable fee because that function requires the

trial court to evaluate carefully and critically the

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aggregate hours and specific hourly rates advanced by

counsel for the prevailing party to support the fee

application. Trial courts should not accept passively

the submissions of counsel to support the lodestar

amount[.]

[Pantzer, 141 N.J. at 335.]

To determine the reasonableness of the fees, a court must consider the

nine factors in Rule 5:3-5(c). Steele, 467 N.J. Super. at 444; see also Primmer

v. Harrison, 472 N.J. Super. 173, 191 (App. Div. 2022). Those factors are:

(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; (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 the award.

[R. 5:3-5(c) (emphasis added).]

In addition to considering the Rule 5:3-5(c) factors, the court must also

consider the factors enumerated by RPC 1.5(a). See Chestone v. Chestone,

322 N.J. Super. 250, 256 (App. Div. 1999) (noting attorneys' fee awards must

address the factors enumerated by Rules of Professional Conduct 1.5(a)).

Under RPC 1.5(a), "the factors to be considered in determining the

reasonableness of a fee include the following:

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(1) the time and labor required, the novelty and

difficulty of the questions involved, and the skill

requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the

acceptance of the particular employment will preclude

other employment by the lawyer;

(3) the fee customarily charged in the locality for

similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the

circumstances;

(6) the nature and length of the professional

relationship with the client;

(7) the experience, reputation, and ability of the

lawyer or lawyers performing the services;

(8) whether the fee is fixed or contingent."

Because the court is always responsible for determining the

reasonableness of the attorneys' fees, these relevant factors must be

considered. See Walker, 209 N.J. at 131. "All applications for counsel fees in

family actions must address the factors set forth in RPC 1.5(a)." J.E.V., 426

N.J. Super. at 493 (citing R. 4:42-9(b)). In other words, this analysis cannot be

waived by the parties. In this case, because of the PNA's fee-shifting

provision, consideration of the Rule 5:3-5(c) factors was not for the purpose of

determining whether to shift fees in the first place, but rather to determine the

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reasonableness of those fees. We hold that the family court's consideration of

the Rule 5:3-5(c) and RPC 1.5 factors is a nondelegable obligation and applies

equally to the court's assessment of fees under a provision in a matrimonial

agreement.

In evaluating the overall reasonableness of the fees, the court must begin

by establishing the lodestar. Jacobs, 458 N.J. Super at 209.

There are four considerations in setting the lodestar.

The first is the reasonableness of the attorney[s'] fee,

evaluated under the factors set forth in RPC 1.5(a).

Second, the court considers the reasonableness of the

time billed by the attorney, since a party is not entitled

to [attorneys'] fees for excessive and unnecessary

hours. Third, the court determines whether the award

should be decreased because . . . plaintiff "achieved

limited success in relation to the relief he [or she] had

sought." Fourth, the court must decide whether the

attorney is entitled to a fee enhancement if the

attorney worked under a contingency agreement.

[Heyert v. Taddese, 431 N.J. Super. 388, 443-44 (App.

Div. 2013) (footnote omitted) (quoting Furst, 182 N.J.

at 21-23).]

Our Supreme Court has described the lodestar as "the most significant element

in the award of a reasonable fee because that function requires the trial court to

evaluate carefully and critically the aggregate hours and specific hourly rate

advanced by counsel for the prevailing party to support the fee application."

Rendine, 141 N.J. at 335. The Court underscored the responsibility of trial

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courts to review the affidavits of counsel carefully and "not accept passively

th[ose] submissions." Ibid.

Although we have no doubt that the family court reviewed the attorneys'

billing records, it did not determine the lodestar amount. First, the court did

not address the reasonableness of each attorney's hourly rate by evaluating the

RPC 1.5(a) factors, including the rates customarily charged in the locale for

similar legal services. Defendant's attorneys' billing invoices and certification

of services reflect time devoted to this matter by six attorneys with varying

degrees of experience and whose hourly rates ranged from $370 to $510 to

$550.

Next, the family court needed to examine more closely the significant

amount of time spent on this single-issue case. For instance, counsel devoted

nearly fifty hours to prepare for plaintiff's deposition and over one hundred

hours to prepare for the two-day plenary hearing on a single issue. We

acknowledge that the court "read each and every submission" and had

"personal knowledge of the legal work performed," yet a closer analysis of the

amount of work performed and a more detailed explanation was necessary to

justify the significant hours devoted to this relatively straightforward case.

Although the court noted that the legal work was necessary to address

plaintiff's "constant shifting positions," there were no novel or particularly

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challenging legal issues identified that would warrant extensive time or legal

research. Even though the court found that "[a]ll of these legal fees [were]

directly and proximately related to the lawsuit filed by plaintiff," it was

nonetheless required to assess whether those hours billed were necessary and

not excessive in light of the "single issue" to be decided.

We also note that the parties agreed that the family court need not

consider the Rule 5:3-5(c) factors. Although there is overlap between the Rule

5:3-5(c) and RPC 1.5(a) factors, consideration of the Rule 5:3-5(c) factors

assists the court in determining the reasonableness of the fees and must be

considered in any family action. J.E.V., 426 N.J. Super. at 493.

We conclude that the family court was obligated to analyze all relevant

RPC 1.5(a) and Rule 5:3-5(c) factors to establish the lodestar and assess the

reasonableness of the fees. Because the court did not fully evaluate all

relevant factors, we are constrained to remand the matter for a more complete

analysis. On remand, the court shall evaluate all relevant factors and "state

clearly [its] factual findings and correlate them with relevant legal

conclusions, so that parties and the appellate courts [are] informed of the

rationale underlying th[ose] conclusion[s]." Avelino-Catabran v. Catabran,

445 N.J. Super. 574, 594-95 (App. Div. 2016) (alterations in original) (quoting

Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986)); see also R. 1:7-A-3587-23

4. We express no view as to the reasonableness of any of those time entries

and leave that to the family court on remand to evaluate in light of the relevant

factors.

B. Return of Plaintiff's Passport

We turn next to plaintiff's contention that the family court erred in

denying her request to return her passport until the outstanding attorneys' fee

award was satisfied. Defendant contends that the court correctly determined

plaintiff was a flight risk as she has no family or employment in New Jersey

and can leave the country due to her dual citizenship. In denying the return of

plaintiff's passport, the court stated:

The arguments advanced by plaintiff are speculative,

at best. Defendant's counsel made clear in writing the

passport will be sought to continue to be held pending

plaintiff's satisfaction of any judgment entered.

Plaintiff failed to comply with the December 9, 2022[]

[o]rder directing her to secure employment. That

plaintiff states she can simply drive out of the country

demonstrates plaintiff continues in her failure to

appreciate the consequences of her actions and that

she is a flight risk. State v. S.N., 231 N.J. 497 (2018).

That plaintiff has been adjudicated not credible and

yet persists in making the same argument that have

been rejected three times (on December 15, 2023,

January 5, 2024 and February 21, 2024) raises the

concern about the seriousness in which plaintiff is

confronting her exposure under the PNA for attorneys'

fees and costs, and therefore strongly militates in

favor of impacting her liberty interest. This is

especially so given plaintiff has offered nothing by

way of identifying any other security on which

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[d]efendant may rely to be made whole. To be clear,

the court is not precluding travel. Plaintiff may travel

outside the continental United States only if there is

written consent from defendant or on application to

the [c]ourt. To hold otherwise will constitute injustice

to . . . defendant who is out approximately $300,000.

The court's reliance on State v. S.N., 231 N.J. at 500 to support the

withholding of plaintiff's passport is misplaced. S.N. involved a pretrial

detention decision. Id. at 502. The State moved to have defendant detained

pretrial after charging defendant with first-degree aggravated sexual assault on

a person under the age of thirteen, N.J.S.A. 2C:14-2(a)(1); fourth degree

lewdness, N.J.S.A. 2C:14-4(b)(1); and second-degree child endangerment,

N.J.S.A. 2C: 24-4(a). S.N., 231 N.J. at 501. The State contended defendant

was a serious flight risk "because his . . . mother and sister live[d] in Canada,"

and he also posed a danger to others or the community. Ibid. The trial court

"based defendant's risk of flight upon his dual U.S.-Canadian citizenship even

though . . . defendant had 'lived in New Jersey [for] almost his entire life.'" Id.

at 518.

In remanding the matter to the trial court, the Supreme Court held that

the "evidence at the detention hearing [had] not overcome the [Criminal

Justice Reform Act's]8 presumption of release." Id. at 519. The Court

N.J.S.A. 2A:162-15 to -26.

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concluded that the trial court abused its discretion in granting defendant's

pretrial detention because its detention decision "rest[ed] on an impermissible

basis," "was based upon a consideration of irrelevant or inappropriate factors,"

"fail[ed] to take into consideration all relevant factors," including "defendant's

characteristics as he stood before the court, and reflects a clear error in

judgment." Ibid. (quoting State v. C.W., 449 N.J. Super. 231, 255 (App. Div.

2017) (second alteration in original) (citations omitted)).

The withholding of a passport has generally occurred in the context of a

child custody or child support matter. See Innes v. Carrascosa, 391 N.J. Super.

453, 477 (App. Div. 2007) (ordering the retention of a party's passport until the

child was returned to the other parent); see also Marzano-Lesnevich, 435 N.J.

Super. at 247 (where court held that the child's passport would be held in trust

during a custody dispute); cf. R. 5:3-7(a) (A family court may impose certain

remedies for a violation of a custody or parenting time order).

In the present case, the family court cited no legal authority for the

withholding of plaintiff's passport until she satisfied a judgment for attorneys'

fees. During the pendency of this litigation, plaintiff had not failed to appear,

particularly after the court ruled that the PNA was enforceable. The court also

did not consider less restrictive means of securing payment before resorting to

this more draconian remedy. Given the significance of the order to surrender

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her passport and the fundamental nature of the right to travel, the court

misapplied its discretion in withholding plaintiff's passport for this reason —

the payment of a monetary judgment. See Saenz v. Roe, 526 U.S. 489, 500

(1999); see also Bisbing v. Bisbing, 230 N.J. 309, 336-37 (2017); Sanchez v.

Dep't of Hum. Servs., 314 N.J. Super. 11, 30 (App. Div. 1998) (concluding

that "[t]he nature of the right affected . . . is a well-established, fundamental

right to travel, recognized by New Jersey courts.")

IV.

A. Frivolous Litigation Fees

We turn next to the issue of whether the family court erred by imposing

frivolous litigation fees pursuant to the FLS and Rule 1:4-8 against plaintiff,

Vigliotti and the Firm. Plaintiff contends that the court's primary focus was on

the conduct of her counsel and therefore, the court erred in assessing sanctions

against her. Vigliotti challenges the frivolous litigation sanctions, arguing that

the court abused its discretion in imposing sanctions because: (1) defendant

failed to prove that Vigliotti, the Firm, or plaintiff pursued the case in bad

faith; and (2) the finding of bad faith was not premised on all relevant factors.

Vigliotti also alternatively argues that the fees were not reasonable nor did the

court provide sufficient reasoning as to why the sanctions imposed were

appropriate to "deter repetition" of such conduct. The Firm asserts the family

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court denied it due process when it made the Firm jointly and severally liable

for sanctions without adequate notice; erred by failing to make adequate

findings of fact or conclusions of law as to how the FLS applied to the Firm;

and erred in imposing sanctions that went well beyond deterrence as intended

by Rule 1:4-8.

We hold that the family court erred in finding the FLS applicable under

these circumstances for two primary reasons: (1) the FLS does not apply to

motions and plaintiff's complaint was not frivolous in its entirety; and (2) the

safe-harbor notices were deficient in alerting plaintiff, Vigliotti and the Firm,

that fees would be sought against Vigliotti and the Firm in the event the

litigation was deemed frivolous.

The FLS "permits a court to award reasonable counsel fees and litigation

costs to a prevailing party in a civil action if the court determines 'that a

complaint, counterclaim, crossclaim or defense of the non-prevailing person

was frivolous.'" Toll Bros., Inc., 190 N.J. at 67 (quoting N.J.S.A. 2A:15-59.1(a)(1)). The FLS provides a "limited exception[] to the 'American Rule'

for civil justice, whereby litigants are expected to bear their own counsel fees."

Bove, 460 N.J. Super. at 147. As a result,

we have approached fee-shifting requests under the

[FLS] and Rule 1:4-8 restrictively, because 'the right

of access to the court should not be unduly infringed

upon, honest and creative advocacy should not be

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discouraged, and the salutary policy of the litigants

bearing, in the main, their own litigation costs, should

not be abandoned.

[Ibid. (quoting Gooch v. Choice Entertaining Corp.,

355 N.J. Super. 14, 18 (App. Div. 2002)).]

The FLS applies only to a party who has filed a frivolous pleading, N.J.S.A.

2A:15-59.1(a)(1); McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J.

546 (1993), while sanctions against an attorney "who engage[s] in frivolous

litigation," may be sought under Rule 1:4-8. Toll Bros., Inc., 190 N.J. at 68.

Our Supreme Court in Lewis v. Lewis held that the FLS "refers . . . only

to a 'complaint, counterclaim, cross-claim or defense.'" 132 N.J. 541, 545

(1993). "By its terms, the statute does not apply to motions." Ibid.

In this case, plaintiff's divorce complaint and defendant's answer and

counterclaim sought to address the enforceability of the PNA. Before any

divorce trial occurred, defendant cross-moved to enforce the PNA. In the

family court's December 9, 2022 order, it reserved decision on defendant's

enforcement application 9 pending a plenary hearing. Thus, it was defendant's

In its February 21, 2024 decision, the court noted that in December 2022, when it determined a plenary hearing was needed to resolve the enforceability of the PNA, "no trials or plenary hearings were permitted to be conducted in FM docketed matters in Hudson County" which contributed to the delay in scheduling this matter.

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cross-motion that resulted in the scheduling of a plenary hearing on the PNA's

enforceability.

The family court did not address, nor did the parties raise, the FLS'

applicability to a motion under these unique circumstances. In its February 21,

2024 decision, the court referenced that "the assertion of attorneys' fees by

defendant's counsel . . . will presumably encompass the preparation for and

participation in the plenary hearing," and indeed, fees awarded encompassing

time and labor in preparing for and conducting the plenary hearing. We

recognize that the divorce complaint and counterclaim raised the issue of the

PNA's enforceability. We are satisfied that the frivolous litigation fees were

directly related to the plenary hearing on defendant's motion.

There was no determination made that plaintiff's entire divorce

complaint was frivolous for the purpose of imposing sanctions under the FLS

and Rule 1:4-8. As we held in Bove, "a pleading will not be considered

frivolous for the purpose of imposing sanctions under Rule 1:4-8 unless the

pleading as a whole is frivolous." 460 N.J. Super. at 155; see also McDaniel v.

Man Wai Lee, 419 N.J. Super. 482, 499 (App. Div. 2011) ("Sanctions are not

to be issued lightly; they are reserved for particular instances where a party's

pleading is found to be 'completely untenable,' or where 'no rational argument

can be advanced in its support.'" (quoting United Hearts, LLC v. Zahabian, 407

A-3587-23

N.J. Super. 379, 389 (App. Div. 2009))). As we stated in McDaniel, "simply

because 'some of the allegations made at the outset of litigation later prove[] to

be unfounded does not render [the complaint] frivolous[.]'" 419 N.J. Super. at

499 (alteration in original) (quoting Iannone v. McHale, 245 N.J. Super. 17, 32

(App. Div. 1990)). Thus, simply including a claim to void the PNA in her

divorce complaint does not render plaintiff's entire complaint frivolous.

Applying a de novo standard of review to this question of law, and

limiting the statute's application in accordance with its plain language, we hold

that because the FLS does not apply to motions and the record does not

support a determination that plaintiff's divorce complaint in its entirety was

frivolous, we hold that the family court erred in awarding frivolous litigation

sanctions under the FLS and Rule 1:4-8 in the context of this pre-judgment

plenary hearing necessitated by defendant's cross-motion. See State v.

Cerefice, 335 N.J. Super. 374, 382 (App. Div. 2000) ("De novo consideration

requires the reviewing judge to determine the case completely anew on the

record made before the trial judge.")

Even assuming the FLS applied under these circumstances in light of the

parties' complaint and counterclaim raising the issue of the PNA's

enforceability, the family court nonetheless erred in finding that the "notices

comport[ed] with the required safe-harbor provision under [Rule] 1:4-8(b)(1)."

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An application for sanctions pursuant to the FLS is brought under Rule 1:4-8(b), which governs the procedure for seeking sanctions. "A litigant seeking

sanctions under the Rule must . . . provide the attorney or pro se party with a

procedural 'safe harbor'" notice. Toll Bros., Inc., 190 N.J. at 69 (citing R. 1:4-8(b)(1)). Regarding notice, the Rule provides:

No such motion shall be filed unless it includes a

certification that the applicant served written notice

and demand pursuant to Rule 1:5-2 to the attorney or

pro se party who signed or filed the paper objected to.

The certification shall have annexed a copy of that

notice and demand, which shall (i) state that the paper

is believed to violate the provisions of this rule, (ii) set

forth the basis for that belief with specificity, (iii)

include a demand that the paper be withdrawn, and

(iv) give notice, except as otherwise provided herein,

that an application for sanctions will be made within a

reasonable time thereafter if the offending paper is not

withdrawn within 28 days of service of the written

demand. If, however, the subject of the application

for sanctions is a motion whose return date precedes

the expiration of the 28-day period, the demand shall

give the movant the option of either consenting to an

adjournment of the return date or waiving the balance

of the 28-day period then remaining.

[R. 1:4-8(b)(1).]

"Strict compliance with each procedural requirement of Rule 1:4-8 is 'a

prerequisite to recovery[,]' and failure to conform to the rule's procedural

requirements will result in a denial of the request for an attorney[s'] fees

sanction." Bove, 460 N.J. Super. at 149 (alteration in original) (quoting State

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v. Franklin Sav. Acct. No. 2067, 389 N.J. Super. 272, 281 (App. Div. 2006)).

As we underscored previously, the FLS and Rule 1:4-8 are to be "interpreted

restrictively," and "[s]anctions should be awarded only in exceptional cases."

Id. at 151. Relevantly, "even if a non-prevailing party does not complain

about a deficiency regarding a safe-harbor notice, the judiciary itself has an

institutional interest in assuring that the safe-harbor prerequisite to fee-shifting

is strictly enforced." Id. at 155.

Defendant's counsel sent two formal frivolous lawsuit notices and one

email only to Vigliotti on: "November 30, 2023, following plaintiff's

deposition, December 19, 2023, following oral argument on the then pending

sets of motions[,] and January 8, 2024, following the denial of plaintiff's

motion for reconsideration." The family court correctly noted that two of the

notices—the November 30, 2023 and January 8, 2024 letters—did not

distinguish among plaintiff, Vigliotti or the Firm.

These letters generally stated that if plaintiff's "demand to set aside the

parties [PNA]" was not withdrawn within a reasonable time, "an application

for sanctions will be made within [twenty-eight] days of this written demand."

Although the January 8, 2024 letter also included a demand that plaintiff's

complaint be withdrawn or else sanctions will be sought, the letter only refers

to the claim regarding the enforceability of the PNA as purportedly frivolous.

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As to pursuing fees against plaintiff and the Firm, only the December 19,

2023 email references pursuing such fees, and stating the notice would be

amended:

Please be advised that if we do not resolve, the [Rule]

1:4-8 letter previously sent to you will be amended,

and then the fees will continue to escalate as the judge

noted to complete your client's deposition and prepare

and appear before the hearing will increase the

exposure to at least $100,000. In addition, my client

has consulted with civil counsel such that under the

law he will pursue fees owed against your client and

as allowed against your firm under the frivolous

litigation law such that your carrier should be placed

on notice as I understand the process from the civil

attorney.

The January 8 letter that followed did not specify that fees would be sought

against Vigliotti and the Firm unless the pleading was withdrawn. Neither the

November 30 nor the January 8 notice warned Vigliotti about defendant's

intent to seek frivolous litigation fees against him should the complaint not be

withdrawn. Cf. Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 410 (App.

Div. 2009).

Rule 1:4-8 requires that a safe-harbor notice must "set forth the basis"

for the belief that an attorney or party violated the Rule "with specificity." R.

1:4-8(b)(1)(ii). The Rule's requirement that the notice must be sufficiently

specific and detailed to provide an opportunity to "withdraw the assertedly

offending pleadings" is an indispensable requirement for an award of fees

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under the FLS. Ferolito, 408 N.J. Super. at 408 (quoting Trocki Plastic

Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 406 (App. Div. 2001)).

Defendant did not strictly comply with the Rule 1:4-8 requirement to

provide adequate notice to Vigliotti and the Firm by alerting them of the intent

to seek attorneys' fees against them and by describing the specific conduct of

the attorney "alleged to be a violation of the Rule." Toll Bros., Inc., 190 N.J.

at 69. Said differently, defendant's notices did not provide adequate notice to

Vigliotti that he intended to seek an award of attorneys' fees against him

personally and the Firm for frivolous litigation.

Defendant asserts that Rule 1:4-8 does not require direct notice to the

Firm, "when the attorney guilty of the wrongdoing has been provided proper

notice." This contention is premised on adequate notice being provided in the

first place to the attorney against whom sanctions will be sought separate and

apart from the client. Although Rule 1:4-8(e) defines the scope of a law firm's

responsibility, it does not address whether separate notice to the firm is

required before it can be held jointly and severally liable for "violations

committed by its partners, shareholders, associates and employees."

Presuming the Firm received notice when Vigliotti was served with the safe -harbor letters, the content of the letters did not alert Vigliotti and the Firm of

defendant's intent to seek fees against both. This lack of adequate notice

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violates the express language of Rule 1:4-8 and contravenes the purpose of a

safe-harbor notice requirement. See Ferolito, 408 N.J. Super. at 409 ("The

obligation to serve a specific notice and demand 'further[s] the policies

underlying the [FLS].'" (quoting Toll Bros., Inc., 190 N.J. at 65)).

The safe-harbor notices did not put plaintiff on notice that defendant

would seek attorneys' fees against her lawyer as well as plaintiff herself. Such

notice is important to alert plaintiff of this potential consequence and give her

an opportunity to seek new counsel and make an informed decision on how

best to proceed. Additionally, plaintiff was not served contemporaneously

with the safe-harbor notices upon their receipt by Vigliotti. Instead, Vigliotti

provided plaintiff with copies approximately one month before the plenary

hearing. As we noted in Ferolito, "[t]he rationale for requiring proof of bad

faith is that clients generally rely on their attorneys 'to evaluate the basis in

"law or equity" of a claim or defenses,' and 'a client who relies in good faith on

the advice of counsel cannot be found to have known that his or her claim or

defense was baseless.'" 408 N.J. Super. at 408. Alerting plaintiff to

defendant's intent to seek fees against her lawyer is an important factor for her

consideration in the decision-making process. We hold that the notices were

deficient as to all three individuals—plaintiff, Vigliotti and the Firm.

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We add that Rule 1:4-8 does not require a safe-harbor notice to be

served on both a represented party and his or her attorney perhaps because

attorneys are required to keep clients reasonably informed about the status of a

matter. See RPC 1.4. In service of a safe-harbor notice, best practices dictate

that the notice should be served upon both the party and the attorney in the

event of a conflict of interest and to ensure that adequate notice is given in

advance of seeking frivolous litigation fees.

In sum, we vacate the family court's frivolous litigation sanctions against

plaintiff, Vigliotti and the Firm under the FLS and Rule 1:4-8. As for the

family court's award of attorneys' fees under the PNA against plaintiff, we

reverse and remand for further consideration of the RPC 1.5(a) and Rule 5:3-5(c) factors as to the reasonableness of the fees assessed against plaintiff under

the PNA. We also hold that the family court misapplied its discretion in

denying plaintiff's request to return her passport and that provision in the June

orders is also reversed. We direct on remand that plaintiff's passport be

returned to her.

To the extent we have not specifically addressed arguments raised by the

parties in their respective appeals, it is because those arguments are either

rendered moot by our holdings, or else lack sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(E).

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Vacated in part, reversed and remanded in part for further proceedings

consistent with this opinion. We do not retain jurisdiction.

A-3587-23

Leunnith Fioravante v. Matthew Fioravante

Authorities cited

Opinion · public domain