In New Jersey, in a family court matter, if a party’s position is unreasonable or taken in bad faith, the other party can seek reimbursement of attorney’s fees. This was the case in the recent unpublished decision of Ramirez v. Ramirez, New Jersey App. Div., Docket No. A-2035-08T32035-08T3, November 24, 2009.
In Ramirez, the parties were divorced by a Dual Final Judgment of Divorce entered on January 29, 2007, which incorporated a settlement agreement. Following the divorce, in three separate motions, plaintiff persisted in seeking a re-calculation of defendant’s income based upon allegations and documentation relating to circumstances that existed for several years prior to their 2007 divorce. In his December 21, 2007, decision the judge put plaintiff on notice that she had failed to establish a change in circumstances. Nonetheless, plaintiff filed a cross-motion in August 2008 and a motion for reconsideration on October 6, 2008, both of which continued to seek the same relief based upon the same allegations. As a result, defendant was compelled to incur “unnecessary costs” for which he is entitled to be reimbursed. Under these circumstances, the judge awarded and the Appellate Division affirmed the counsel fees awarded to defendant.
Plaintiff’s position was that the benefits that the defendant received from his employment for his family’s business, including mortgage payments, a bonus, pay raises, payment of property taxes, etc., should be included in determining defendant’s child support obligations. While the plaintiff may have been correct, she failed to dispute his income when they were divorcing and alimony had been determined. As a result, there was no “change of circumstance” in the defendant’s income.
Plaintiff may have had a good faith basis to seek the re-calculation of defendant’s income, however after the judge made his ruling and absent new or additional evidence, plaintiff should not have filed a motion for reconsideration unless new proofs or information substantiating her claims could be provided. A motion for reconsideration must state “the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.” Reconsideration is within the discretion of the court.
A party should not file an application for reconsideration merely because of their dissatisfaction with the court’s decision. In New Jersey, in matrimonial actions the award of counsel fees rests within the sound discretion of the trial judge.
A motion for reconsideration is a useful tool especially when there is new information or when a judge may have missed a key fact. If filing a motion for reconsideration is something you are considering, you must carefully assess whether there is no information which would change the court’s mind or whether there was key information that the court missed the first time around. If the application is brought in bad faith, it could result in an award of counsel fees to the other party.