Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Are Allocation of Attorney Fees Decided By A New Jersey Divorce Judge?

Below, please find a theoretical sample of an Order that would be prepared by a Judge of the Family Part of The Superior Court of New Jersey.  First, at the end of a divorce trial (or motion) each respective lawyer in the divorce case must provide a Certification of Services.  Then the judge who presided over the divorce matter must closely analyze certain factors pursuant to the relevant court rules along with the facts presented in the divorce case in order to decide if each party should pay their own lawyers, respectively, or should one party have to contribute to the other’s attorneys fees.  Following is a great example of how New Jersey Family Court judges examines the issue and renders a final decision.  

SUPERIOR COURT OF NEW JERSEY

CHAMBERS OF COURTHOUSE

ANTONIO SCALIA, JSC TOMS RIVER, NJ 07728

LETTER OPINION

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE COMMITTEE ON OPINIONS

April 15, 2013

Marla Maples, Esq.

100 Calvin Street

Matawan, NJ 07747

William Clinton, Esq.

427 George Avenue

Hazlet, NJ 07730

Re: Brian Smith vs. Leslie Smith

Docket No. FM-13-0101-13

Dear Counsel:

This matter came before this Court by way of consent of the parties. The parties entered into a Marital Settlement Agreement on May 13, 2012, however, they agreed that the share of counsel fees would be determined by the Court. A Final Judgment of Divorce was entered on March 2, 2013. Plaintiff, Brian Smith (“Plaintiff”), represented by Marla Maples, Esq., filed a Brief and Certification of Attorney Services on March 30, 2012. Defendant, Leslie Smith (“Defendant”), represented by William Clinton, filed a Certification of Attorney Services on April 1, 2012.

The parties married on December 31, 1999. There are two (2) children born of the marriage: Justine Smith, born January 16, 2001 and Benjamin Smith, born January 16, 2001.

I. Counsel Fees

The Court has authority to award counsel fees in family actions, pursuant to R. 4:42-9 (a)(1), N.J.S.A 2A:34-23, and R. 5:3-5. Under the laws of New Jersey, the award of counsel fees and costs in matrimonial case rests in the discretion of the Court. Salch v. Salch 240 N.J. Super. 441, 443 (App. Div. 1990). An application for counsel fees must be supported by an affidavit of services. R.4:42-9(b). The affidavit of services must state that the fee is reasonable and support the assertion by providing the information set for in R.P.C. 1.5(a).

In determining the amount of the fee award, the Court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the factors as enumerated in R. 5:3-5(c).

In addition, the New Jersey Supreme Court pronounced in Mani vs. Mani, 183 N.J. 70,94 (2005) that 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. Id. At 94-95 (emphasis removed) (citing Williams vs. Williams, 59 N.J. 229, 233 (1971).

In any request for counsel fees, the Court must evaluate the factors set forth in R. 5:3-5(c):

Factors 1 and 2: The Financial Circumstances of the Parties and Ability to Pay

Plaintiff is employed as a Dermatologist with his own private practice. He reported earned income of $210,000.00 on his 2012 income tax return. Id. Defendant is employed as an accountant with her own private practice. She reported earned income of $180,000.00 on her 2012 income tax return. Id.

Defendant argues that Plaintiff earns approximately $30,000.00 more than the Defendant, and is in a superior financial position after the effects of equitable distribution. Pl.’s Cert. of Services ¶ 30. Plaintiff contents that he has been burdened with the mortgage of the marital home, as well as additional counsel fees and expert fees as a result of filing applications to address “Defendant’s damaging behavior to the children.” Def.’s Cert. at 12.

Neither party receives spousal support nor alimony from the other, and each has waived their rights to same. Pl’s Cert. of Services Ex D.

Factor 3: The Reasonableness and Good Faith of the Parties

Each party alleges that the other acted in bad faith. The parties agree this is the crux of this application. Defendant states that the parties engaged in extensive settlement negotiations since the commencement of the litigation, however the parties were unable to reach a settlement agreement because the Plaintiff’s requests were “excessive and without legal justification.” Pl.’s Cert. of Services ¶ 33. For example, Defendant contents that Plaintiff did not even raise the issues of custody and parenting time until ten days before trial began, without any prior notice to Defendant’s counsel of same. Id. At ¶¶ 40,43. He was apparently “relentless” in his request for primary physical custody of the children and supervised visitation with Defendant, and the only resolution he was willing to discuss was reconciliation with Defendant and reconsideration of his position six months thereafter. Id. At ¶ 33. Defendant asserts that Plaintiff is “unconcerned with the children, but rather is motivated by his own selfish agenda.” Id. At ¶ 40. Furthermore, she alleges that Defendant caused her to incur nearly another $20,000 in fees to professionals to contest Plaintiff’s claim that she was alienating the children from him. Defendant argues that her positions were “fair and reasonable” and offered in good faith. Id at ¶ 33.

Plaintiff argues that it was Defendant’s behavior that lead the parties to extensive litigation. Pl.’s Br. At 10. He alleges that since Defendant unilaterally vacated the marital home in August 2013, she unilaterally made all decisions regarding the children, including moving the children to different residences and enrolling the children in a different school without consulting Plaintiff. Id. At 3. He contends that throughout the litigation, there were significant periods of time where there was no communication from Plaintiff to Defendant regarding the children. Id. At 4. Defendant’s behavior was  a clear attempt to alienate him against the children and “use the children as pawns to carry out her contention for Plaintiff” in the litigation, he argues. Id. At 5.

Plaintiff states that in September 2014, Defendant filed a “frivolous and fraudulent” application for a Temporary Restraining Order “on the eve of the then scheduled trial dates,       

“ which, he argues, was a “direct effort to gain a ‘leg-up’” in the potential custody issue of the case and pressure Plaintiff into accepting a settlement agreement. Id. At 6, 7. He alleges that in her TRO application, Defendant relied upon emails that she received 9 days prior to filing the TRO, during which Plaintiff was permitted by Defendant to have parenting time per the parties’ normal parenting time schedule, which occurred without issue. Id. at 7. He states that this “deceptive maneuver” only punished the children because they were “undoubtedly confused as to why they [were] not seeing their father.” Id. at 8. Accordingly, Plaintiff sought emergent relief by way of modification of the TRO to allow him to exercise his regularly scheduled parenting time until the return date of the TRO, however the emergent application was denied and Defendant was unwilling to agree on a modification. Id at 7. “Plaintiff felt as though he had no choice but to enter into [a Consent Order with] Civil Restraints” because “Defendant would stop at nothing to continue to lie and manipulate the facts,” he states. Id. at 9. He contends that thereafter, he felt as if he had no other option but to proceed to trial under the FM docket, especially in light of the Risk Assessment report from Dr. Felton, Ph.D. which apparently corroborated Plaintiff’s assertion that Defendant had employed alienating tactics toward the children. Id. at 9,10.

From the certifications of the parties, given the case ultimately settled, it is difficult to allocate the parties’ “reasonableness and good faith.”

Factors 4,5 and 6: Counsel Fees Incurred, Paid, and Previously Awarded

Defendant paid an initial retainer of $5,000.00. Def’s Cert. of Services ¶ 2; Def’s Cert. of Services Ex. A. Her attorney, William Clineton, Esq., certifies that Defendant has incurred counsel fees and costs in the amount of $93,706.05 through April 15, 2013. Def’s Cert. of Services at ¶21. As of April 15, 2013, Defendant has paid the sum of $55,330.13. id. at ¶ 22. She allegedly borrowed monies from her parents to remit payment to counsel in this amount. Id. Defendant has total outstanding counsel fees and costs of $38,375.92. Id. at ¶ 23.

Plaintiff paid an initial retainer of $5,000.00. Pl.’s Cert. of Services Ex. A. His attorney, Marla Maples, Esq., states that he has incurred a total of $91,589.43 in counsel fees and costs. Id.

The Temporary Restraining Order was settled by way of Civil Consent Order. Moreover, there were two failed mediation sessions with Joseph Lovello, Esq., a Risk Assessment with a psychologist, a psychiatric evaluation, an reunification therapy with the parties’ daughter. Defendant’s attorney, William Clienton, Esq. contends that the number of hours expended on the matter “increased precipitously” in January and February 2013, during which counsel reviewed additional updated documents provided by Ms. Smith, had discussions with the reunification therapist with respect to the preparation of a revised Property Settlement Agreement for trial, and reviewed the reports rendered by the three professions who evaluated Mr. Smith. Def.’s Cert. of Services ¶ 11. Mr. Clinton states that after reviewing eight subpoenas issued to third parties on behalf of Mr. Smith in late February 2013, Ms. Karen Willis, the associate assigned to the matter, began preparing a pre-trial brief. Id. at ¶ 12. This consisted of performing legal research and analysis and meeting with Mr. Clinton on several occasions to discuss the brief, particularly custody and parenting time issues, Mr. Clinton maintains. Id. at ¶ 12. She states that counsel then began to prepare the parties’ financial stipulations. Id. 

In early February 2013, Mr. Smith allegedly initiated for the first time a request for primary custody and Ms. Smith to have supervised visitation with the children. Id. at ¶ 13. Mr. Clinton certifies that she and Ms. Willis “tried desperately to resolve that issue and warned Mr. Smith and his counsel of the vagaries of his case; nonetheless, instead of taking heed that his criminal behavior with soliciting sexual favors would be brought to the Court’s attention, he chose to proceed to trial.” Id. Mr. Clinton certifies that in early March 2013, she and Ms. Willis began more intensive trial preparation, including drafting direct examination questions for Ms. Smith’s testimony, revising and completing the trial brief, organizing the file, identifying and organizing exhibits for trial, discuss expert reports and settlement proposals, and discuss the use of witnesses at trial, discuss expert reports and settlement proposals, and discuss the use of witnesses at trial with Mr. Smith’s counsel. Id. at ¶ 14. Thereafter Defendant’s counsel concluded their trial preparation by preparing exhibit lists, review Mr. Smith’s trial brief, and reviewing Ms. Smith’s comments and emails for use at trial. Id. at ¶ 15.

Plaintiff’s attorney, Marla Maples, on the other hand contends that Plaintiff felt that he had no other option but to proceed with trial after receiving the Risk Assessment report from Dr. Felton, psychiatric evaluation with Dr. Bannon, and recommendation from Dr. Shah, the reunification therapist, on whether Plaintiff presents any risk of harm to the children. Pl’s Br. At 10. Ms. Maples stats that the reports were unequivocally unanimous in concluding that Plaintiff presents no risk of harm to the children and identifying Defendant’s inappropriate behavior and alienating tactics toward the children. See id. at 9-10. Ms. Maples argues that the corroboration of these reports, in addition to Defendant’s “consistent damaging behavior”, formed the basis of Plaintiff’s position to proceed with trial to see the Court’s determination of what was truly in the best interests of the children. Id. at 10. Furthermore, Ms. Maples contends, it was Defendant’s “unrelenting and ongoing behavior” that lead the parties to extensive litigation in the matter. Id.

Despite these allegations and procedural wrangling, no fees were previously awarded to either party.

Factor 7: The Results Obtained

The parties entered into a Marital Settlement Agreement on May 15, 2013, however, they agreed that the allocation of each party’s counsel fees would be determined by the Court after counsel for both parties submitted Certifications of Counsel Fees to the Court. An Amended Final Judgment of Divorce was entered on March 23, 2013.

Defendant argues that she made “significant concessions ‘ to end the trial and then had to incur an additional $20,000 in counsel fees to “defend Mr. Smith’s baseless claims for primary residential custody and to assert alienation where none existed.” Def.’s Cert. of Services ¶ 37. Meanwhile, Plaintiff argues that he had to proceed to trial, given the three professional reports, which concluded that Plaintiff presents no risk to the children and Defendant had employed alienating tactics toward the children Id. at 9,10. (See summary of proceedings set forth above).

Since the case was ultimately settled, the Court cannot find that either party obtained a more successful result. Both parties have alleged “bad faith” throughout the course of the matrimonial litigation. Sadly, divorce lawsuits are often “used” as a sword, as was the case here. But the Court cannot conclude based on the result obtained, a settled case with a signed “Matrimonial Settlement Agreement, “ where the parties income is close to equipoise, that counsel fees should be awarded. There was no clear “winner” nor “loser” here. Fortunately, the parties ultimately settled and spared themselves and their family from even more lengthy matrimonial litigation.

Factor 8: To Enforce Existing Orders or Compel Discovery

The instant application did not pertain to enforcement or discovery issues.

The Court notes that both parties have incurred substantial legal fees in excess of over  $200,000.00 each. However, the Court finds that neither party is in a significantly superior financial position to pay for the other’s counsel fees. Although Plaintiff earns approximately $33,000.00 per year more than Defendant, he also pays child support to Defendant for their two children. Additionally, although each party alleged that the other acted in bad faith, the Court finds that both parties’ positions were sometimes reasonable and sometimes unreasonable. Accordingly, the Court denies both parties’ requests for counsel fees. 


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ANTONIO SCALIA, J.S.C