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

How Does My Lawyer Defend A Pendente Lite Motion Filed Against Me?

As a divorce attorney, motions for pendente lite relief are very common.  These motions are filed while a New Jersey divorce is still occurring.  The law of pendente lite mandates that the parties must maintain the status quo of the marriage while the divorce is still pending.  However, times occur in which the lawyer for the other spouse files such a motion that we believe is unfair.

Following is an example of a legal brief (a hypothetical) that provides certain defenses to a pendent lite relief.  First, we argue that the party seeking relief from a New Jersey Family Court must make full financial disclosure.  Second, we argue that, as our client was already maintaining the “status quo of the marriage,” this motion is frivolous and unnecessary.  Finally, we argue that our client’s attorneys fees should be paid by the defendant.  

Our divorce law firm stands prepared to help you or a loved one who may be facing a divorce.  

May 5, 2016

Via Hand Delivery

The Honorable Benjamin Cardozo, J.S.C.

Middlesex County Courthouse

Family Part, Superior Court of New Jersey

120 New Street

New Brunswick, New Jersey 08903

Re: David Jones advs. Choon Jones

Docket No.: FM-12-3054-13

Our File No.: 5000-16

Dear Judge Cardozo:

This office represents the Defendant, David Jones, in connection with the above referenced matter.  This office is in receipt of an Order to Show Cause filed by the Plaintiff, Choon Jones, which was denied by Your Honor, and now the pending Notice of Motion for Pendente Lite Support that was also filed by the Plaintiff.  Please accept this letter brief in lieu of a more formal brief as part the Defendant’s opposition to the Plaintiff’s Notice of Motion and in support of the Defendant’s Cross-Motion for various relief.  

To avoid repetition, Your Honor is respectfully referred to and the Defendant respectfully relies upon the relevant facts of this proceeding which are set forth in detail in the accompanying Certification of the Defendant, David Jones.

Unfortunately, the Plaintiff has filed an overblown Notice of Motion, which is actually the spinoff of the frivolous Order to Show Cause she recently filed, which appears to have been a calculated attempt to ambush the Defendant in this matter by way of seeking relief from this court that was not emergent, and the bulk of which does not even need to be determined pendente lite as it can be fully heard and decided in the pending divorce proceedings.  All of this has caused Plaintiff herself to incur a ridiculous amount of over $13,000 in counsel fees to date.  

In sum, there is no basis for the relief requested in the Plaintiff’s Motion nor has the Plaintiff provided proofs to enable the Court to accurately decide this matter and therefore her Motion must be denied.

LEGAL ARGUMENT

POINT I

THE PLAINTIFF’S MOTION FOR PENDENTE LITE SUPPORT 

MUST BE DENIED AS SAME IS PROCEDURALLY DEFICIENT

The Plaintiff’s Motion for pendente lite relief must be dismissed on procedural grounds.  The Plaintiff filed a Motion for Pendente Lite Support yet she failed to provide the Court with a complete Case Information Statement including the appropriate financial documents.  This is fatal to Plaintiff’s motion and same compels the court to dismiss her application in its entirety.  Court Rule 5:7-2 (a) states as follows:

“(a) Support Pendente Lite: Applications for support, counsel fees and costs pendente lite, whether made with the complaint or by notice of motion thereafter, shall be accompanied by a completed case information statement in the form set forth in Appendix V to these rules pursuant to R. 5:5-2.”  

Furthermore, the court, on either its own or a party’s motion, may, on notice to all parties, dismiss a party’s pleadings for failure to have filed a Case Information Statement.  R. 5:5-2(b).   Thus, according to R. 5:7-2(a) and R. 5:5-2(b), the Plaintiff was required to file a completed Case Information Statement with her Motion for Pendente Lite Support.  Along with the Case Information Statement the Plaintiff should have attached her 2012 tax return, 2012 W-2's and/or 1099's and a copy of her last three (3) pay stubs, none of which were included with her Motion or incomplete Case Information Statement.  Furthermore, the incomplete CIS the Plaintiff did submit, did not have any values or specific names of any assets, it had no information of any savings the Plaintiff may have and there were NO liabilities listed.  The Plaintiff has a rental property in Brooklyn and does not list any rent as income.  The Plaintiff has not been forthcoming with her income and expenses, and yet she expects the court to grant her relief.  The Plaintiff is clearly in violation of R. 5:5-2(b) and R. 5:7-2, and therefore her Motion should be dismissed.

Applications for pendente lite relief must make out a prima facie case.  WJonesler v. WJonesler, 48 N.J.Super. 184, 192 (App. Div. 1957).  When bona fides of an application for pendente lite relief are questionable, preliminary relief will be denied.  Suydam v. Suydam, 79 N.J.Eq. 144 (Ch. 1911).  The court looks into the merits of the application as disclosed by the pleadings and affidavits and is thereby guided in the exercise of its discretion.  Schiff v. Schiff, 116 N.J.Super. 546, 562 (App. Div. 1971).  The Plaintiff has not made out a prima facie case for pendente lite support and the merits of her pleadings without a complete Case Information Statement do not even provide a glimmer of what the Plaintiff is in need of, or whether she is entitled to any pendente lite support at this time.  

The truth of the matter is that the parties, including the Defendant, have been maintaining the status quo of the marriage thru to the time the Plaintiff herself unilaterally decided to deviate from same and stopped paying the mortgage.  The Defendant has not threatened to cease paying any expenses and up until the Plaintiff failed to hold up her end of the bargain, he was maintaining the status quo and he has no objections to both parties being ordered to do so.  The Plaintiff is not in need of any direct pendente lite support at this time as the parties have been separated for almost five (5) years and the Defendant will continue to pay the marital expenses consistent with the status quo as long as the Plaintiff does same.

In sum, the Plaintiff’s Notice of Motion must be dismissed for the procedural deficiencies and lack of disclosure stated above.  No award of pendente lite support or counsel fees should be awarded to the Plaintiff at this time.

POINT II

THE PLAINTIFF’S MOTION FOR PENDENTE LITE 

SUPPORT MUST BE DENIED AS THE DEFENDANT IS 

MAINTAINING THE STATUS QUO

The general purpose of pendente lite support is to maintain the parties in the same or similar situation they were in prior to the inception of the litigation; to preserve the status quo through the device of awarding temporary financial support pending a full investigation of the case.  Mallamo vs. Mallamo, 280 N.J.Super 8, 11-12 (App. Div. 1995).  “Maintenance of the status quo involves payment of the marital bills and expenses necessary to maintain the dependant spouse at the standard of living enjoyed during the course of the marriage.”  Rose v. Csapo, 359 N.J.Super. 53, 60 (Ch. Div. 2002).  

Pursuant to N.J.S.A. 2A:34-23 a court may award interim relief in the form of financial support in matrimonial actions during the pendency of the case.  Motions for pendente lite support may be maintained in cases where, for example, as a result of the parties' separation or general hostilities, one party is either not being maintained according to the pre-action status quo or the other is paying too much either by way of direct or indirect support, and a fixed determination of the parties' respective temporary support obligations is sought. 

An application for pendente lite alimony is based on necessity. Nebel v. Nebel, 99 N.J.Super. 256 (Ch. Div. 1968) aff’d 103 N.J.Super. 216 (App. Div. 1968). Its purpose is to provide a dependent spouse with a means of support while the parties are living separately pending the final outcome of the underlying action. N.J.S.A. 2A:34-23.  The objective of pendente lite alimony is to secure for the payee the “financial means whereby to live and to retain counsel until the court shall have opportunity to hear and determine the controversy.  It is a mere temporary expedient.” Monica v. Monica, 25 N.J.Super. 274, 277 (App. Div. 1953).  Pendente lite alimony is not to be used to provide a windfall for the payee.  The payor is not to be made the golden target of an application of support, suit money and counsel fees, pendente lite, except in a situation of demonstrable need.  WJonesler v. WJonesler, 48 N.J.Super. 184, 195 (App. Div. 1957).

The Plaintiff in this case clearly has not shown any necessity entitling her to pendente lite alimony support at this time since the parties have been living separate and apart for almost five (5) years.  The Plaintiff even purchased her own property located in Brooklyn, New York without the Defendant’s knowledge or consent and may either be living there or collecting rental income from there.  The Plaintiff has allegedly been living in the same home she did during the marriage and is living the same or substantially similar lifestyle she lived during the marriage, except for the recent issues which have arisen since she refused to contribute towards the expenses associated with the marital home even though she had been since 2008.  

As outlined in his Certification, the Defendant was clearly maintaining the status quo of the marriage and that which existed during their almost five (5) year separation, and he has been providing support to the Plaintiff until she unilaterally decided to breach her end of the bargain.  The Plaintiff never once elaborates on what she may need as spousal support, only vaguely asserting that now she is now in need of same.  She has failed to specify exactly what her needs are, as she has not provided a full and complete Case Information Statement in this matter nor has she provided evidence of her current finances.  The Plaintiff also fails to advise the court of her breach of the status quo which inevitably led to the Defendant not being able to pay for all of the expenses he was previously paying.  The Defendant was doing and will continue to do all that the law asks and requires of him; he will maintain the status quo that exists for over the past five (5) years and during the marriage voluntarily, provided that the Plaintiff do the same.

The spouse seeking pendente lite relief must prove necessity and has the burden of making a prima facie showing that her case is such that, if proved at final hearing, will entitle her to the relief sought.  Shindel v. Shindel, 77 N.J.Super. 345, 347-48 (App. Div. 1962).  If the proof presented by the pleadings and affidavits make the complainant’s right to support doubtful, or the bona fides of the application is questionable, the court should deny the application.  WJonesler at 192. This is exactly the case we have here and why the Plaintiff’s application, which is now being made almost five (5) years after the parties separated, should be denied.

In determining the amount of temporary support, the court will consider the financial circumstances of the parties and make an award consistent with the dependent spouse's needs, the supporting spouse's means, and the standard of living to which they have become accustomed.  Gross v. Gross, 22 N.J.Super. 407, 413 (App. Div. 1952).  The Plaintiff has not proven a necessity for the support she is seeking, nor does the Defendant have the means to give her further support at this time as he is already attempting to maintain the parties at the same standard of living they were at before the Complaint was filed.  The Plaintiff deviated from same herself, thus causing her any financial distress she may now be alleging. 

The burden is on the Plaintiff to prove she is in need of spousal support and to show the parties marital lifestyle. She clearly has not, nor has she provided a complete Case Information Statement as required by the Court Rules that would even attempt to support her claim for same.  The Plaintiff’s Motion does not meet the burden bestowed upon the Plaintiff to prove the status quo and her need for support from the Defendant to maintain same.

In reviewing the criteria for making a pendente lite award consistent with the dependent spouse's needs, the supporting spouse's means, and the standard of living to which they have become accustomed, the equities clearly weigh in favor of no pendente lite award of spousal support being entered at this time.  Furthermore, the Defendant will voluntarily maintain the status quo that has existed for almost the past five (5) years during the marriage provided that the Plaintiff does as well.  Therefore, the Plaintiff’s Motion should be denied.

POINT III:

THE PLAINTIFF’S REQUEST FOR COUNSEL FEES

MUST BE DENIED AND THE DEFENDANT SHOULD BE

AWARDED COUNSEL FEES AND COSTS PURSUANT TO 

COURT RULES 4:42‑9, 5:3‑5 AND NEW JERSEY CASE LAW

The Defendant's Notice of Cross-Motion to have the Plaintiff pay his counsel fees in this matter is justified in light of the Plaintiff's and her counsel’s conduct in this matter.  Counsel fees may be awarded in a matrimonial case.  R. 5:3‑5(c) sets forth the factors a court is to consider when determining whether counsel fees should be awarded.  This rule states:

(c) Award of Attorney's Fees.  Subject to the provisions of R. 4:42‑9(b), (c), and (d), the Court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of inter‑spousal agreements relating to family type matters and claims relating to family type matters and actions between unmarried persons.  A pendente lite allowance may include a fee based on an evaluation of prospective services likely to be performed and the respective financial circumstances of the parties.  The Court may also, on good cause shown, direct the parties to sell, mortgage or otherwise encumber or pledge marital assets to the extent the Court deems necessary to permit both parties to fund the litigation.  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 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.  

Furthermore, in Kelly v. Kelly, 262 N.J. Super. 303 (Ch.Div.1992), the Court outlined the effect of bad faith and unreasonableness in considering an award of counsel fees:  

…where one party acts in bad faith, the relative economic position of the parties has little relevance.  The purpose of the award is to protect the "innocent" party from unnecessary costs and to punish the "guilty" party.  The court should afford protection and impose punishment regardless of the assets available to the innocent party.  Accordingly, the need to produce economic information lessens as the "bad faith" of the party against whom fees are sought increases; conversely, the court may not award fees in the absence of disclosure demonstrating economic disparity unless the moving party shows "bad faith".  Id. at 307.

Furthermore, the court in Borzillo v. Borzillo, 259 N.J. Super. 286, 293‑94 (Ch.Div.1992) listed specific conduct that should be considered bad faith.  This includes an unwillingness during the litigation process to fairly negotiate an equitable distribution of property acquired during the marriage, intentional noncompliance with Court Orders and voluntary agreements, abusing process or intentionally misrepresenting facts to evade such obligations, or seeking relief which one knows or should know that no reasonable argument could be advanced in fact or law in support of thereof.  

In addressing the factors as laid out in R. 5:3‑5, the Defendant respectfully directs the Court's attention to the Certification of Attorneys Services which is being filed simultaneously herewith.  Based upon the above, and based upon the facts of this matter, an award of counsel fees and costs to the Defendant is clearly warranted.

The Defendant’s position throughout this matter has been reasonable and in good faith.  The Plaintiff insisted on filing a frivolous Order to Show Cause and subsequent Motion for Pendente Lite Support without even first contacting or trying to resolve the matter with the Defendant.  Even after the Plaintiff’s counsel received a telephone call and letter seeking to resolve the matter in good faith without the necessity of a motion, the Plaintiff continued to pursue same and file a frivolous and overblown Notice of Motion seeking seventeen (17) claims for relief along with a twenty-two (22) page Memorandum of Law.  The Plaintiff’s counsel has spent a whapping fifty-six (56) hours and over $13,700 in counsel fees and the Complaint for Divorce has only recently been filed.  All of this time and money has been spent without even one (1) attempt to try and resolve this matter first and then refusing to negotiate or discuss a resolution to same when approached by the Defendant.  The Plaintiff’s Motion and positions in this matter reek of utter bad faith.

As a result, the Defendant has exhausted much time, expense and effort in defending against the Plaintiff’s baseless and overblown attempt to seek the Court’s involvement to maintain a status quo that she herself has deviated from nearly five (5) years after the parties have been separated, which is causing him to deplete his valuable resources needed in this matter due to the Plaintiff’s unreasonable positions.  The Plaintiff's Notice of Motion, to which Defendant has now been compelled to respond to, is lacking any merit whatsoever in the spirit of Borzillo.  Simply put, but for the Plaintiff's bad faith, the Defendant would not have had to incur counsel fees in defending this matter and in responding to Plaintiff's meritless and premature Notice of Motion.  The Court must be abhor this behavior and sanction it, not condone it.

CONCLUSION  

For the foregoing reasons it is respectfully requested that the Court dismiss the Plaintiff’s Notice of Motion for Pendente Lite Support in its entirety for the procedural and substantive reasons detailed above and grant the Defendant the relief sought in his Notice of Cross-Motion, including an award of counsel fees.

Respectfully submitted,

LAW OFFICES OF EDWARD R. WEINSTEIN, LLC

EDWARD R. WEINSTEIN, ESQ.

EAW/lala

cc: Donald Trump, Esq. (via hand delivery)

David Jones (via e-mail)