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.