The New Jersey civil court system serves the people of this great state by offering justice and equity, in an increasingly unfair world. It allows litigants and their lawyers to the opportunity to seek the redress and remedy of perceived wrongs. While one of the great parts of this system is how easily people can file motion after motion, this also leads to many people abusing the New Jersey Family Court system in an effort to harass other parties with a constant barrage of potentially harassing and humiliating motions and orders to show cause. The cost of litigating such matters can be quite high, and so it puts those with financial means and professional connections in positions of power over those who do not have the same financial advantages. However, New Jersey courts provide for sanctions against parties to remedy this in the form of counsel fees.
Rule 4:42-9(a)(1), allows a Family Part court to award counsel fees in family actions according to its discretion on the consideration of the factors enumerated in Rule 5:3-5(c). These factors may include, the financial positions of the parties involved, and if the other party acted in bad faith. In K.J. v. T.A.F., the New Jersey Appellate Division reviewed an order granting counsel fees, awarded by the Superior Court of New Jersey, Family Part of Bergen County, resulting from T.A.F.’s motion in which he sought custody of his child.
T.A.F. and K.J. had one child together. K.J. was awarded with primary custody, while T.A.F. had a right to visitation under a parenting plan. However, in May of 2011, the Family Part entered a Final Restraining Order against T.A.F. under the Prevention of Domestic Violence Act, officially known as New Jersey Statute 2C:25-17, on behalf of T.A.F. The trial court had found that he committed harassment and assault against K.J.
After the Final Restraining Order was issued against him, T.A.F. filed numerous motions and orders to show cause in which he sought custody. All of his motions were denied. In addition to the motions and orders to show cause, he also filed many complaints with the Division of Child Protection and Permanency, in which he alleged that K.J. had abused and neglected their child. However, all these accusation were found to be unsubstantiated.
The counsel fee at issue in this appeal was awarded to K.J. after T.A.F. filed yet another motion in which he sought full custody of their child. In his motion he claimed that K.J. had mental health and substance abuse problems, and through these problems the child was subjected to an unsafe living environment. In response, K.J. filed a cross-motion and further sought an award of counsel fees against T.A.F. Judge Thurber amended the Final Restraining Order in which he ordered T.A.F. to pay $ 7,000 in counsel fees to K.J.
The New Jersey Appellate Division reviews awards for counsel fees for abuses of discretion. If a Family Part judge follows the letter of the law, and makes appropriate findings of fact, an award of counsel fees is given substantial deference by the New Jersey Appellate Division, and the award will be disturbed only in case of the clearest case of abuse of discretion. An abuse of discretion happens when a decision is made without a rational explanation, clearly in opposition with established policies, or based upon an impermissible basis.
The Prevention of Domestic Violence Act, New Jersey Statute 2C:25-29(b)(4), gives a court the authority to award a domestic violence victim with “monetary compensation for losses suffered as a direct result of the act of domestic violence . . . [including] reasonable attorney’s fees . . . .” A counsel fee award of such a nature does not require any special showing, because an award of counsel fees is a form of monetary compensation under the Prevention of Domestic Violence Act. With that said, any award of counsel fees have to be a direct result of the same domestic violence; they have to be reasonable; and as per to Rule 4:42-9(b), they have to be submitted by an affidavit.
In Judge Thurber’s Statement of Reasons, she explained that the award of counsel fees to K.J. was awarded under the Prevention of Domestic Violence Act as a form of compensatory damages. The trial judge explained that as this award was a form of damages, and not merely a rule based fee award, the impact of the damages on T.A.F. was not a factor. Monetary damages that are reasonably determined to have been a result of the domestic violence are compensable. The trial court found that a counsel fee award of $ 7,000 was an appropriate award, because T.A.F. continued to use the judicial system and the legal process in an ongoing harassment of K.J., which forced her to retain legal counsel. Moreover, after a review of the factors enumerated in New Jersey Court Rules, Rules of Professional Conduct 1.5, the trial court further found that the amount of the counsel fee was reasonable.
Furthermore, Judge Thurber found additional reason to award counsel fees to K.J. under Rule 4:42-9(a)(1), a rule that allows a Family Part court to award counsel fees in family actions according to its discretion on the consideration of the factors enumerated in Rule 5:3-5(c). The trial judge found that T.A.F. was in a better financial position than K.J., because, as K.J. continued to struggle with making ends meet, T.A.F. bragged about his new career path as a consultant, speaker, and CEO/founder of a company, in addition to the possibilities of a book and movie deal. Moreover, he boasted that he had access to a plethora of attorneys through his professional network, that he could easily use to initiate lawsuit after lawsuit. However the fact that the trial court found to be most compelling was that T.A.F. acted in bad faith, because his several motions, complaints, and orders to show cause in seeking custody, were not supported by any factual or legal basis. In fact, the trial court judge found that T.A.F. utilized the court system in an effort to subject K.J. to insulting and offensive verbal attacks that he used to try to degrade and embarrass her. Specifically, the trial court judge made sure to note that T.A.F.’s applications for complete child custody were not made in good faith. Also telling was the fact that all of his motion applications were ultimately denied. In consideration of all these factors, and other factors, the trial court found that the award of $ 7,000 in counsel fees was warranted under Rule 4:42-9(a)(1) as well.
The New Jersey Appellate Division held that because Judge Thurber’s findings were appropriate, and were also supported by the factual record in the case, those findings are entitled to deference upon appellate review. The appellate panel found that the award of counsel fees did not constitute an abuse of discretion, and thus would not be disturbed. As such, the order of the Family Part was affirmed.