We have previously blogged on the issues of counsel fee awards and a trial court’s decision to grant or deny a party’s request for oral argument on a pending motion.  Two of these prior postings can be found here and here.  Both of these issues framed the Appellate Division’s recent unpublished opinion in Bove v. Bove, found here. 

The parties at issue were divorced on June 28, 2001 and three children were born of the marriage (two adult sons and a 16-year old daughter).  A supplemental Judgment of Divorce established that the Wife would have sole physical custody and the parties would share joint legal custody.  Additionally, the Husband was required to create trust funds for the children’s college expenses and to be responsible for 80% of the daughter’s college tuition.

The Wife sought to enroll the daughter in a private high school, informing the Husband that she could not pay for any part of private school tuition, that she was taking the daughter to open houses and that she asked for the Husband’s "thoughts on the matter."  The Husband responded in a letter that he would not contribute to tuition prior to college and was displeased that the issue was broached with their daughter before him.  Nevertheless the Wife moved forward with the process and, when the Husband sought to have the Wife confirm in writing that she would not seek contribution from him for high school tuition, she refused.  The Wife also contended that the Husband was using the college trust funds for non-college expenses, as defined by the supplemental JOD, and the Husband contended that the Wife ignored, and then hedged, on his timely requests for vacation with the children. 

The Husband filed an application for an order regarding the issues of vacation, pre-college tuition for their daughter, and the definition of "college expenses" as set forth in the supplemental JOD.  He also sought counsel fees.  The trial court entered an order on March 28, 2008 allowing the Husband to take the daughter on the scheduled vacation outside of the United States.  As the wife had only previously submitted an opposing certification as to the vacation issue, she waited until the date of oral argument to submit an opposition to the remaining issue.  In his subsequent reply, the Husband added that the Wife had also recently sold investment property, the proceeds from which should be used to reimburse the Husband for counsel fees.  He filed a certification of services with his application pursuant to R. 4:42-9. 

The trial court later informed the parties that it would decide on the remainder of the Husband’s motion on the papers, to which both parties objected and the Wife responded by filing a brief that failed to contest the Husband’s claim regarding her sale of the investment property.  In finding for the Husband on his motion, the trial court also granted him $5,000 in counsel fees pursuant to R. 5:3-5(c)(3), (7) and (9).  In this regard, the trial court specifically found that the Wife could not make unilateral decisions and then refuse to sign a proposed consent order, as well as seek payment for things not covered by the supplemental JOD. 

The Wife filed a motion for reconsideration of the trial court’s order stating, as to the counsel fees issue, that the Court erred by failing to make findings regarding bad faith by the Wife and the parties’ mutual ability to pay.  The Husband filed a cross-motion and, as part of same, again sought counsel fees.  The trial court again chose to decide the motion on the papers, despite the Wife’s request for oral argument.  As to the issue of counsel fees, the trial court affirmed its award again in reliance on R. 5:3-5(c) – as to (c)(3) that the Wife’s position as to the daughter’s enrollment in private school was unreasonable and her doing so despite the Husband’s contrary view was deemed bad faith; as to (c)(7) that the Husband had prevailed on his motion; and as to (c)(9) that the Wife had resisted the vacation request without a sufficient basis.  The trial court rejected the Wife’s argument that the fees award was inappropriate because it did not consider the parties’ ability to pay because the Wife had failed to provide any financial information and, additionally, found that she had the ability to pay based on the proceeds received from sale of the investment property.  The court then granted the Husband a $1,000 in counsel fees, finding that the Wife’s reconsideration application lacked merit. 

On appeal, the Appellate Division affirmed the initial grant of $5,000 in counsel fees on the Husband’s first application.  In so holding, the Appellate Division considered N.J.S.A. 2A:34-23, which requires a court to "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."  The Appellate Division then referenced certain factors laid out in R. 5:3-5(c), including whether the party seeking fees is in financial need; whether the party against whom fees are sought has the ability to pay; the good or bad faith of either party in pursuing/defending the action; the nature and extent of the services rendered; and the reasonableness of the fees sought.

In light of these factors, the Appellate Division noted that the responsibility to provide information as to financial circumstances rests with the parties.  Interestingly, it supported this notion by referencing how a court may dismiss a party’s pleadings when a Case Information Statement is not properly submitted pursuant to R. 5:5-2.  As the trial court only had the Husband’s financial-related information to rely on, as the Wife had failed to rebut his assertions, the Appellate Division found that the trial court had not abused its discretion in rendering the award. 

As to the fee award granted to the Husband on the Wife’s motion for reconsideration, the Appellate Division analyzed whether the Wife acted reasonably and in good faith under R. 5:3-5(c).  It noted that, where both parties litigate in good faith, fees are not awarded unless the parties exhibit unequal economic positions and, where one party acts in bad faith, such economic positions carry little relevance because the award becomes a protection for the "innocent party" and a "punish[ment]" for the "guilty party."  Further, the Appellate Division stated that a finding of bad faith is not required.  Rather, it concluded that only the good faith of the parties’ positions should be considered, referencing the definition of "good faith" in Black’s Law Dictionary as, "a state of mind consisting in . . . honesty in belief and purpose . . . ." With these legal principles in mind, the Appellate Division affirmed the trial court’s finding that the Wife had acted "without good faith," and had the ability to pay the $1,000 counsel fee award to the Husband. 

Finally, the Appellate Division held that the trial court erred in not holding oral argument on the Wife’s motion for reconsideration pursuant to R. 5:5-4.  It noted that, while the grant of oral argument is discretionary, a strong presumption exists favoring oral argument on motions other than "calendar matters and routine discovery applications."  Nevertheless, the Appellate Division declined to remand the matte
r because it found that doing so would only increase the parties’ expenses and add nothing more to an "already ample record" in light of the trial court "evidential[ ] aware[ness] of the issues and familiar with the parties’ arguments."  

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