NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

An interesting issue was recently considered by the Court in the case of Muller v. Muller. Specifically, the Appellate Division examined whether a husband could compel the sale of the marital home when he had conveyed his interest by way of deed about ten years earlier, but the parties’ Property Settlement Agreement (“PSA”) had provided for the husband’s continued ownership.

The parties in Muller were married for 17 years. When they divorced in 1990, they entered into a PSA, which, in part, provided as follows:

EQUITABLE DISTRIBUTION
A. Husband and Wife agree to divide equally the personalty . . . upon sale of the premises or child's emancipation, whichever shall first occur.
B. Upon execution of contract of sale of the above premises, Husband agrees to put his interest in the marital home in trust for Child.
. . . .

REAL ESTATE
A. Husband agrees to pay the mortgage payments [on the marital home] . . . until the time that child graduates from college, or reaches the age of 22, whichever shall first occur[.]

The husband paid the mortgage from the time of the divorce until around 1999 when he defaulted on the payments. The mortgagee instituted foreclosure proceedings in or around July of 2000. In order to avoid foreclosure, the wife borrowed about $60,000 and refinanced the property. The husband executed a deed and conveyed the wife his ownership interest in the property for consideration of $50,000. As a result, the wife exonerated him of the debt the he had incurred by defaulting on the mortgage payments. At the point, the child was 21 years old and had graduated from college.

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Oftentimes, a less economically able party is faced with a spouse or former spouse who insists on litigating time and again simply because they can, hoping that the "war of attrition" will force the other party to give them what they want to avoid further motion practice.  We as family practitioners know that while the Rules of Court provide a party with the ability to seek a counsel fee award from the other party for a variety of reasons including, but not limited to, "evening the financial playing field," assisting a party in need where the other party has the ability to pay, or, commonly, addressing the other party's unreasonable behavior, courts do not always award fees even in what may seem like an obvious situation to do so. 

For example, a party bringing a motion to enforce litigant's rights may not receive an award of fees even if they tried to settle to no avail before filing the motion, especially where the other party "remedies" the issues before the Court actually decides the motion.  Of course, the motion would not have been filed had the other party earlier complied, but the effort to render issues "moot" after the motion is filed oftentimes sways a court not to award fees even though it was the motion itself that compelled compliance.

I recently dealt with the "war of attrition" litigant, who has filed the same motion against our client time and again - literally, the same motion each and every year post-divorce.  In each of the three years since the divorce, he was denied his requested relief in three separate motions.  As sure as the sky is blue, the former spouse again filed a motion this year - his fourth - for the very same type of relief as to parenting time.  Notably, the former spouse also retains a different attorney for each motion in an effort to cleanse the court's palette.  In two of the three prior denials of his requested relief, he was Ordered to pay our client substantial counsel fees since he makes six times the annual income of our client, and his repeated efforts to financially pressure our client into getting what he wants have proven transparent in the eyes of the court.

On this fourth occasion, the story was the same and, thankfully the result - a denial of the former spouse's requested relief and an award of full counsel fees for our client.  While the immediate result was positive, as it has been after each prior motion, I have no doubt that the former husband will again file a motion for the very same relief in 2012, 2013 and beyond until the child is emancipated upon whom the requested relief was based.  While one can only hope that our client will continue to successfully fend off his attacks, the more unfortunate problem is that she cannot stop him from filing his motions.  In fact, when he was denied time around, he verbally questioned the judge, incredulous that he would be denied again despite the lengthy history of denials and him being found to have not only acted unreasonably, but in bad faith, as to his litigation tactics.  It was this response that only further confirmed that we will be back in court next year, starting anew the annual litigation cycle that not only leaves our client financially drained, but also causes great emotional strain upon her and her family that cannot be remedied by a mere award of counsel fees.

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I have recently blogged about the need for courts to award counsel fees when a party successfully enforces an agreement or an Order.  As noted, all too often, court's do not award counsel fees, or when then do, the award is not the entire amount of fees incurred.  This potentially empowers to wrong doer because there is no ramifications to their non-compliance.

That issue arose in the unreported (non-precedential) opinion in the case of Bello v. Bello decided on April 1, 2011.  After the parties' divorce, the wife was forced to file 5 post-judgment enforcement applications.  She was successful and was awarded fees for each.  However, at the fifth motion, she was only awarded $1000 because the trial judge "stated that "I don't want to cut off support for the [wife] in favor of counsel fees."  The wife unsuccessfully sought reconsideration contending that the amount was too low given the husband's lavish lifestyle and significant assets.  She then appealed.

The Appellate Division reversed and remanded the matter back to the trial court to determine the proper amount holding:

After carefully considering the entire record, we conclude that the judge's reasoning for limiting counsel fees to $1000 contradicted his finding that the husband had a substantial income and several assets. The husband lives in a home worth $1,000,000 with a tennis court and swimming pool, drives a 2007 Mercedes sedan, owns two other cars, pays $1500 per month for his mortgage, is the sole proprietor of Mendham Eyecare business, earns more than $200,0001 a year, and refused to pay his child support and alimony obligations. In addition to finding that the husband had "plenty of resources to pay his obligations," the judge found that a review of the husband's case information statement demonstrated "at least $14,000 of excess [money available]."

We therefore reverse because the judge's finding that the husband cannot afford a fee greater than $1000 is "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence."

Perhaps this decision will be a deterrent and ensure future compliance. 

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Very often, when parties settle their cases, in their Marital Settlement Agreement (a/k/a Property Settlement Agreement), there is a provision to the effect that if a party does not comply with the Agreement, they will be liable for the other party's fees if the Agreement has to be enforced in Court.  That said, court's more often than not disregard that paragraph (as well as the Rule 1:10-3 which suggests an award of counsel fees when a party fails to comply with an Order), and apply the typical matrimonial case law and court rules regarding fee shifting in a matrimonial matter, if the court gives any real consideration to the issue, at all.  The aggrieved litigant is often frustrated by the fact that they had to incur fees to get something that they were already entitled to.  The offending party is sometimes empowered because he or she has suffered no negative result from the failure to comply.

However, in a refreshing unreported (non-precedential) opinion in the case of Ullmann v. Ullmann decided on March 23,2011, the Appellate Division held that it was improper for the trial court to ignore that provision in the parties' agreement.

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Following on the heels of Eric Solotoff's recent blog entry addressing the use of parenting coordinators, a new published (precedential) decision from the Appellate Division talks about grievances against parenting coordinators, parenting coordinator fees, and the need for a plenary hearing to address such issues.  In Segal v. Lynch, the Appellate Division addressed these issues in the context of a long, acrimonious history of events simply regarding the parenting coordinator's involvement in the highly contentious matter.

Soon after the trial court appointed the parenting coordinator pursuant to the Parenting Coordinator Pilot Program, the plaintiff called for the coordinators removal from the matter because the coordinator had contacted the trial judge to clarify the terms of an order.  In response to the plaintiff's indication that he would file a motion to have her recused, the coordinator pointed plaintiff to the Grievance Procedure outlined in the Pilot Program Guidelines, which required that plaintiff specifically outline his grievances to the coordinator before notifying the trial court.  A major issue of contention at both the trial level and on appeal was the parenting coordinator's indication that she would charge the plaintiff for her time taken to respond to his numerous grievances. 

After the grievances could not be resolved, the plaintiff submitted his grievance letter to the trial judge, who issued an Order to Show Cause why the coordinator should not continue in the matter and why plaintiff should not pay the coordinator's fees owed.  The trial judge ultimately found for the coordinator, concluding that the plaintiff's grievances were without merit and that the coordinator herself had acted "professionally and admirably" under very difficult circumstances.

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Many divorces involve distribution of assets, including pensions.  To protect the non-titled party entitled to receive a share of the asset, i.e. pension, the court may mandate or the parties will negotiate security to ensure receipt of the value of the asset.  In a recent unpublished post judgment Appellate Division decision, Brown v. Brown, decided January 3, 2011, the court awarded the plaintiff-wife attorneys fees for enforcing defendant-husband's obligation under the Judgment of Divorce to obtain a life insurance policy that guarantees the wife's interest in defendant's pension payments.  But the Appellate court refused to uphold the trial court's Order, which imposed monetary sanctions against the husband for failing to obtain the requisite life insurance policy. 

Defendant-husband was required to obtain a life insurance policy and to select a payout option where the wife would receive monthly income if the husband were to predecease the wife.  However, the husband failed to obtain the requisite life insurance and attempted to select the pension benefit that would maximize his income during retirement but would preclude the wife from receiving any income should he predecease her.  Only through the diligence of the wife was it discovered that husband had attempted to select the incorrect payout option.  As a result, the wife filed two motions seeking to enforce her rights under the Judgment of Divorce.

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Can a trial court tell a litigant is a divorce that they don't have to pay their lawyer more than a capped amount.?  On November 30, 2010, the Appellate Division in the unreported case entitled McClutchy v. McClutchy answered this question no.

In this case, what apparently was a hotly contested matter that went to trial, but which the trial judge deemed ordinary and not complex, at the end of the trial the court was called upon to assess the parties' respective request for counsel fees that they were asking the other party to pay. Normally, each attorney would submit a Certification of Services required by Court Rule explaining and listing the work done. In this however, the trial court limited them to a one page submission about what was owed and what had been paid.  Thereafter, the trial judge, thinking that the parties' respective fees were excessive ruled that the parties fees were capped at $50,000 each, despite that substantially more had been expended and was owed, and moreover, that the lawyers could not seek to collect the amount over and above.  One of the things the judge commented on was that he thought that the matter could have been handled by an associate, as opposed to experienced counsel of the client's choosing.

The Appellate Division reversed this decision finding that it was beyond the scope of the trial court's authority, especially where the client was not objecting to the fee.  Even if that were to have happened, there are other avenues to address this and the trial court could not do so.

This case, while clearly an aberration in the system, raises several issues.  First, if a client retains and wants pre-eminent counsel to represent them, it is not for the court to dispute their right to hire counsel of their choosing.  in addition, there are times where cases that seem "easy" or "garden variety" do not settle.  Some times it is because one party is unreasonable or acts in bad faith.  Some times it is because both parties are unreasonable.  Some times it is because one party does not want a divorce so they drag the matter out with the hopes that the other spouse will "come to his/her senses" and take him/her back.  Of course, by precluding the filing of a Certification of Services, the Court did not get to see what was done and perhaps did not get information as to why this seemingly easy case went to trial. 

This case is another cautionary tale.  Things aren't always as they seem.  Litigant's have a right to pursue issues in court and have a court make a decision on.  They also have a right to fully present their request for counsel fees to explain why the quantum of fees was what it was.

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A question often asked by clients when negotiating the terms of a settlement agreement or when in receipt of a Judgment of Divorce (“JOD”) is what happens if my spouse doesn’t comply with these terms?  If you’ve been through litigation related to a divorce or post-divorce situation you may feel frustrated that an Order signed by a judge is nothing more than a piece of paper and can all too often be difficult to enforce.  Since the family courts are courts of equity, more often that not, judges tend to give second and third chances when a litigant does not comply before more severe punishments are imposed.  Judges may often fear that if they do not give litigants an opportunity to correct the error of their ways, they are not acting equitable or could be subject to criticism and reversal from the Appellate Division.

In the unpublished decision of Cordier, Jr. v. Day-Cordier, decided April 7, 2009, Docket No. A-4004-07T3, the Court addressed the issue of counsel fees and other requirements imposed on a party who failed to comply with the terms of a JOD.

These parties were divorced in February 2007.  Part of the judgment of divorce required that in return for $100,000 from plaintiff, defendant relinquished her interest in the former marital home; plaintiff would refinance the mortgage to remove defendant’s name and associated responsibility; defendant warranted that other than the mortgage, she had not caused any other liens, etc. to be lodged against the former marital home but if any were found to exist, she would satisfy them from the $100,000 she received from plaintiff; and plaintiff was to pay $425/week as term alimony for 4 years.

In November 2007, plaintiff filed a motion to enforce litigant’s rights. Defendant, despite two postponements, never filed any response thereto.  Plaintiff’s motion was stimulated because a lien in the amount of $16,221.62 had been placed on the former marital home because of defendant’s credit card debt and the IRS had imposed a lien of $4,684.90 due to defendant’s unpaid tax obligations.  Plaintiff also sought to suspend his alimony obligation until the debts were paid; an accounting of how defendant spent the $100,000 received from the settlement; counsel fees for defending the foreclosure action; and counsel fees for the motion itself.

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In New Jersey, a family court judge has authority to award counsel fees to one of the litigants pursuant to Rule 4:42-9(a)(1);  Rule 5:3-5(c); and the New Jersey Supreme Court decision of Williams v. Williams, 59 NJ 229, 233 (1971).  Additionally, a court is guided by the "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".  Often, litigants mistakenly assume that the litigation will ultimately be funded by the other party based upon their belief that the other party acted in bad faith.  Robert Campbell, a litigant in the March 31, 2009 unreported Appellate Division decision of Sheinbaum v. Campbell, learned (the hard way) that a counsel fee request does not rise and fall with a litigant's belief that the other party acted in bad faith. 

The underlying facts of  Sheinbaum v. Campbell indicates a long tortured emotional history between the parents of a child with special needs.  The parties resided in Massachusetts.  Less than a year after the parties were married, they separated.  At the time of their separation, plaintiff was pregnant.  The child was born five months after the separation.  Four months after the child was born, the parties divorced but the divorce did not address custody of the child.  Thereafter, plaintiff and the child moved to New Jersey.    In New Jersey, plaintiff filed a Complaint seeking custody, child support and an order limiting defendant's parenting time, a trial court litigation spanning three years.  During the three years of litigation, numerous orders were entered concerning parenting time and child support.  When the initial parenting time order was entered, defendant's parenting time was supervised.  During the litigation, defendant's parenting time became unsupervised, increased and eventually, defendant had limited overnight parenting time. 

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