Divorce -- Attorney's Fees

1. Law Lessons on Counsel Fees, from Cunningham v. Cunningham (Appellate Division, A-3176-03T3, October 11, 2005, not approved for publication):
   
   "The award of counsel fees . . . in matrimonial actions rests [within the sound] discretion of the [trial] court." Williams v. Williams, 59 N.J. 229, 233 (1971). In determining whether a party is entitled to a fee award, the court focuses on several factors, including, among other things, "(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees, . . .; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; . . . (7) the results obtained; . . . and (9) any other factor bearing on the fairness of an award." R. 5:3-5(c); Williams, 59 N.J. at 233.
   
   "A spouse's need is determined by his or her income and available capital assets." Argila v. Argila, 256 N.J. Super. 484, 494 (App. Div. 1992). As to the latter, however, a court is not precluded from making a fee award simply because the party seeking the award has received his or her fair share of the marital property. Shaffer v. Shaffer, 154 N.J. Super. 491, 495 (App. Div. 1977). And as to the former, a disparity in income alone suggests some entitlement on the part of the lower income spouse to a fee allowance. Lavene v. Lavene, 148 N.J. Super. 267, 277 (App. Div. 1977).



2. Law Lessons from Husain v. Husain, (App. Div., Docket No. A-1003-04T3, Decided November 18, 2005, not approved for publication):
   
   "An award of counsel fees is within the discretion of the trial court." Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998). "In determining whether a counsel fee should be imposed, the court must look at the requesting party's need, the other party's ability to pay, and the good and bad faith of each party." Ibid. (citing N.J.S.A. 2A:34-23). A trial judge must also address the pertinent factors under R. 5:3-5(c) when considering to award counsel fees in a matrimonial action. Clarke v. Clarke, 359 N.J. Super. 562, 572 (App. Div. 2003). In doing so, the court is required to make findings of fact. R. 1:7-4.



3. Law Lessons from Weimer v. Weimer (App. Div., A-5065-02T5, November 28, 2005, not approved for publication):
   
   Pursuant to N.J.S.A. 2A:34-23, the trial court may "order one party to pay a retainer on behalf of the other for expert and legal services when the respective financial circumstances of the parties make the award reasonable and just." In considering such an application, the court is required to "review the financial capacity of each party to conduct the litigation and the criteria for [an] award of counsel fees that are then pertinent as set forth by court rule." N.J.S.A. 2A:34- 23. Further, the court shall consider the "good or bad faith of either party." Ibid. The award of counsel and expert fees in a matrimonial matter rests in the discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233 (1971); Heinl v. Heinl, 287 N.J. Super. 337, 349-50 (App. Div. 1996); Fellerman v. Bradley, 191 N.J. Super. 73, 77 (Ch. Div.), aff'd, 192 N.J. Super. 556 (App. Div. 1983), aff'd, 99 N.J. 493 (1985).
   
   Bad faith includes the following: (1) unwillingness or intransigence during litigation to negotiate equitable distribution of marital property, (2) pursuit of relief that one knows or should know he or she is not reasonably entitled to under the facts or the law, (3) intentional misrepresentation of facts or law to avoid or unfairly limit equitable distribution, and (4) vexatious or wanton acts initiated to oppress one's opponent. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992).



4. Law Lessons from WOODRUFF v. FALCONE (App. Div., A-4541-03T1, January 12, 2006, not approved for publication):
   
   Rule 5:3-5(c), which governs the award of attorneys' fees in family matters and incorporates the requirements of Rule 4:42-9 therein, expressly enumerates the factors a court is to consider in determining the amount of the fee award:
   (1) the financial circumstances of the parties;
   (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party;
   (3) the reasonableness and good faith of the positions advanced by the parties;
   (4) the extent of the fees incurred by both parties;
   (5) any fees previously awarded;
   (6) the amount of fees previously paid to counsel by each party;
   (7) the results obtained;
   (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and
   (9) any other factor bearing on the fairness of an award.
   [R. 5:3-5(c).]
   
   Services rendered to defendant in the defense of complaints in the municipal court instituted by plaintiff may not be "services rendered within the framework of proceedings addressed in Rule 4:42-9(a)(1)." Heinl v. Heinl, 287 N.J. Super. 337, 350 (App. Div. 1996).



5. Law Lessons from BASSANI v. BASSANI (App. Div., A-5290-04T5, January 25, 2006, not approved for publication):
   
   The authority to enter an award of attorney's fees is found in N.J.S.A. 2A:34-23, which provides in pertinent part:
   Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a decision is rendered on the other issue then before the court and shall 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.
   [N.J.S.A. 2A:34-23]
   
   Fees in family actions are normally awarded to achieve parity between the spouses so as to level the litigation playing field. Anzalone v. Anzalole Bros., Inc., 185 N.J. Super. 481, 486-87 (App. Div. 1982); Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992). “With the addition of bad faith as a consideration, it is also apparent that fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees.” Kelly, supra, 262 N.J. Super. at 307.
   
   In reviewing any request for counsel fees in family matters, reference must be made to R. 5:3-5(c), which incorporates the requirements of R. 4:42-9 in the presentation of the application.
   
   Similarly, the trial court’s discretion to "direct who shall pay the cost of [an expert] examination, appraisal, or report” is found in R. 5:3-3(i).
   
   Concisely stated: "in awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees." Mani v. Mani, 183 N.J. 70, 94-95 (2005).
   
   This balance requires a trial court to engage a critical review of all applicable factors; conclusory determinations without a factual basis or merely reciting the language of the Rules, cannot sustain scrutiny. Rendine v. Pantzer, 141 N.J. 292, 317 (1995); Loro, supra, 354 N.J. Super. at 227-228.
   
   Where "the judge makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, supra, 329 N.J. Super. at 466 (quoting Rendine, supra, 141 N.J. at 317).
   
   A trial judge must be explicit in his recital of the evidence in his factual findings and must so correlate them to his legal conclusions to support entry of a judgment for payment. Grayer v. Grayer, 147 N.J. Super. 513, 516 (App. Div. 1977); Reiser v. Simon, 63 N.J. Super. 297, 300-301 (App. Div. 1960). Each factor of the Rule is relevant, significant and should not be omitted. See Gordon v. Rozenwald, 380 N.J. Super. 55, 79 (App. Div. 2005).



6. Law Lessons from TARANTINO v. TARANTINO (App. Div., A-952-04T1, March 10, 2006, not approved for publication):
   
   N.J.S.A. 2A:34-23 expressly authorizes an award of counsel fees in matrimonial actions; the determination rests within the sound discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).
   
   To determine an appropriate fee award in a matrimonial action, the trial court must consider the following factors: "(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award." R. 5:3-5(c); Pressler, Current N.J. Court Rules, comment 4 to R. 5:3-5 (2006).
   
   Trial judge's decision to award counsel fees must address pertinent factors of Rule 5:3-5(c) and include required findings of fact; Lavene v. Lavene, 148 N.J. Super. 267, 277 (App. Div.), certif. denied, 75 N.J. 28 (1977).
   
   Pascarella v. Pascarella, 165 N.J. Super. 558, 565 (App. Div. 1979) (equitable distribution of marital assets should be taken into consideration in determining award of counsel fees); Shaffer v. Shaffer, 154 N.J. Super. 491, 495-96 (App. Div. 1977).
   
   While plaintiff earns significantly more money than defendant, this fact alone does not automatically entitle defendant to a counsel fee award.



7. Law Lessons from CAREY v. CAREY (App. Div., A-6246-03T2, March 21, 2006, not approved for publication): Parties may stipulate in an agreement as to the payment of counsel fees. Jobe v. Jobe, 197 N.J. Super. 396 (App. Div. 1984).



8. Law Lessons from PLATT v. PLATT (App. Div., A-1555-04T2, approved for publication April 11, 2006): The good faith of a party and the extent of fees incurred by both parties are factors to be considered in determining the allocation of fees between parties in matrimonial actions. R. 5:3-5(c). See also Williams v. Williams, 59 N.J. 229, 233 (1971).



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