Counsel Fee Awards

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In the unpublished decision of Cordier, Jr.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.Continue Reading Violations of a Judgment of Divorce and Counsel Fees

 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. Continue Reading Appellate Division Explores Counsel Fee Awards and Requests for Oral Argument on Motions

Apple Sulit-Peralejo, a partner in our Atlantic City office blogged earlier today regarding counsel fees and bad faith. 

Often counsel fee decisions come down to findings of bad faith and the case law certainly is replete with references to bad faith.  However, when Court Rule 5:3-5(c) was revised about 10 years ago, the standard was relaxed such that bad faith was no longer necessary, but rather, the "reasonableness" of the positions became the standard.  Or did it?  Reading the cases, such as the one cited in Apple’s post. a lot of time was spent on the issue of bad faith.

That said, when you see large counsel fee awards, it is usually after a trial.  In my experience, though few cases are tried (about 1 to 2%), when cases get tried, it is because one party’s conduct or the positions that the took were so absurd that a finding of bad faith is almost inevitable.

Earlier this week, after a 5 day trial that took place over the better part of a year, my client was awarded $40,000 in legal fees.  In this case, she was the parent of primary residence in the parties’ divorce agreement.  She told her ex-husband that she was going to move to Monmouth County from Hudson County with the parties’ child, to live with her fiance’.  The husband made a motion for custody, essentially seeking to preclude our client from moving with her child.  The case law is pretty clear that the custodial parent can move within the state of NJ.  After we cited that in our brief in opposition to the motion, he concocted a new argument that he was the de facto custodial parent and the trial followed on this issue.  During the trial we were able to prove that his claim was bogus and that for a very short period of time post divorce when he had the child more than 50% of the time, it was because he violated the Agreement and refused to return the child.  This conduct as well as his lies were simply unreasonable.  Similarly, the Court found that he was actively trying to remove our client from the child’s life.  This too was unreasonable.Continue Reading If I Win, Do I Get Counsel Fees? – Another Perspective

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. Continue Reading If I Win, Do I Get Counsel Fees?