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

May a Judge Order Me To Pay Attorney’s Fees For My “Ex” If I Am Found To Be In “Bad Faith?”

Yes.  As a New Jersey divorce lawyer, I have had many clients return to deal with issues that arose after their divorce was finalized.  However, myself and the attorneys at my law firm always make it clear that if one desires to bring their “ex” back to a New Jersey Divorce Court due to their non-compliance with your Property Settlement Agreement, it is essential that they themselves are in compliance.  If a judge of the Superior Court of New Jersey finds that you brought your application in “bad faith,” she may order you to pay for reasonable attorneys fees for your “ex.”  In the following case, the court found the litigant in bad faith due to issues ranging from interference with parenting time to refusing to refinance the former marital home.  Let’s take a closer look.  

I.G. v. E.V.-G., former wife E.V.-G. appealed from an order of the Superior Court of New Jersey, Family Part of Morris County, dated October 7, 2014, that required her to pay her former husband, I.G., $ 8,665 in costs and attorney’s fees. The New Jersey Appellate Division reviewed the case, and reversed the Family Part’s decision to grant counsel fees.

I.G. and E.V.-G. got divorced in 2010. During their brief marriage, they had two children together, Grace and John, who were born in 2007 and 2009. The supplemental judgment of divorce entered on November 19, 2010 granted both parents joint legal custody of the two children. E.V.-G was designated the parent of primary residential custody, and the parenting time schedule granted I.G. one overnight visit every weekend, with the exception of six weekends, one two hour parenting time session during the week, and an extra six overnight visits per year. Each parent was further granted three weeks of vacation time with the kids every year as well, dependent on at least thirty days’ notice to the other parent. The supplemental judgment of divorce, also explicitly stated that E.V.-G. would that the kids to South Africa for vacation “from December 13, 2010 to January 3, 2011. 

The supplemental judgement of divorce also provided that I.G. would be responsible to pay $203 in child support every week. This amount was based on is annual income of $ 100,00, and $ 35,000 of income imputed on to E.V.-G. Each parent was further required to take out $ 200,000 worth of life insurance for the benefit of the children. Lastly, the supplemental judgement of divorce noted the existence of a home equity loan in the names of both I.G. and E.V.-G., on an apartment in New York City. E.V.-G. got to keep the apartment, but was obligated to keep the loan in her name alone. I.G. was obligated to pay $ 27,500 to E.V.-G. at a rate of $ 250 per month, toward the debt. 

Just as the divorce was finalized, an extensive post-divorce motion litigation quickly began. In May 2011, E.V.-G. was ordered by the court to provide evidence that she tried to refinance the home equity loan. She was further found to be in violation of litigant’s rights because she was four days late to return from South Africa with the children. Still, the court noted that she did notify I.G. in advance that she would not be able to come back from South Africa in the date specified in the supplemental judgement of divorce, and that he had not made a big issue about it. 

In an order dated August 5, 2011, E.V.-G. was found to be in violation of litigant’s rights because she failed to deliver the kids for parenting time according to the provisions of the supplemental judgment of divorce, and previous orders. The Family Part rejected her claim that she could not drop the kids off at the specified spot because she could not attain transportation. 

On August 22, 2011, the Family Part entered another order that awarded I.G. power of attorney over E.V.-G, solely for the purpose of selling the former marital home. I.G. had filed a motion to compel E.V.-G to sign the paperwork need to place the house on the market. 

The parties were drawn into court again in September 2011, when E.V.-G accused her ex-husband of sexually abusing their four year old daughter, Grace. She filed a report with the New Jersey Department of Child Protection & Permanency, but the agency closed its investigation in November 2011, and concluded that E.V.-G.’s allegations were without merit. She then filed a complaint in a Family Court in New York and alleged the same facts. This complaint was dismissed in May 2013 because there was not enough evidence after trial. The family court judge strongly suggested that E.V.-G. had put forth false allegations of abuse in an effort to interfere with her ex-husband’s parenting time.

In the fall of 2013, the parents returned to New Jersey Superior Court.  I.G. had filed a motion for physical custody and sole legal custody of the children. The Family Part denied the motion in March 2014, but allowed him to hire an expert to conduct a custody and best interest evaluation. According to the order, E.V.-G was required to comply with this evaluation, and stated that shed would be subject to sanctions if she chose not to comply. 

In August 2014, I.G. filed another motion, and it is the fee sanction from this motion that E.V.-G appealed. In this motion, I.G. requested an order that found E.V.-G in violation of litigant’s rights for: (1) refusing to cooperate with the custody evaluation; (2) interfering with I.G.’s parenting time; (3) violating the supplemental judgment of divorce by taking the children out of daycare; (4) not paying her portion of the balance on a lease for a Volkswagen; (5) failing to take out life insurance, as required by the supplemental judgment of divorce; and (6) not refinancing the home equity loan as required by the supplemental judgment of divorce. 

October 7, 2014, I.G.’s motion was granted in part. The Family Part found that E.V.-G. was in violation of litigant’s rights when she failed to cooperate with the custody expert evaluator, and stated that she failed “to fully comply with Dr. Kohutis and with her requirements for the evaluation.” The Family Part further found her in violation of litigant’s right for interfering with her ex-husband’s visitation time from July 18-20 and August 1-10, 2014. She was also found in violation of litigant’s rights for taking the kids out of daycare. Because both parent’s shared joint legal custody, the court reasoned that she could not just unilaterally take the kids from their daycare provider without consulting I.G. She was also found in violation of litigant’s rights for not paying her share of the car lease, failing to buy life insurance, and refusing to refinance the home equity loan to make it only in her name. As a sanction, the Family Part ordered E.V.-G. to pay I.G.’s attorney’s fees.

E.V.-G. appealed the Family Part order and argued that trial court abused its discretion by finding that she was in violation of litigant’s rights and granting attorney’s fees because she did not willfully ignore the previous court orders. The New Jersey Appellate Division stated that an appeal of a fee sanction is reviewed for abuse of discretion. Rule 5:3-5(c) gives trial courts the discretion to award counsel fees in family actions. Generally, attorney’s fees in family actions are granted to parties in unequal financial position to litigate on the same footing. However, when one party in the case acts in bad faith, financial positions have little relevance because the purpose of the sanction is punishing the guilty party while protecting the innocent party from unnecessary costs. 

E.V.-G. argued that court was wrong and that she did not willfully violate the court orders. The New Jersey Appellate Division analyzed each finding of noncompliance and held that while the evidence supported the fact that she was in noncompliance many times, two of those times she was not. First, the appellate panel found that the Family Part incorrectly found E.V.-G. in violation of litigant’s rights regarding the custody evaluation. E.V.-G maintained that she fully cooperated, and merely wanted to record the sessions to protect her interests. Moreover, the appellate panel explained that she was completely entitled to record the sessions in the first place. 

The New Jersey Appellate Division further stated that there was not enough evidence to find that E.V.-G. was in violation of litigant’s rights when she took the kids out of daycare. The appellate panel explained that E.V.-G was the parent of primary residential custody, and as such, she was responsible for minor day to day decisions that include arranging alternative babysitting or daycare. The appellate panel affirmed the other findings of violating litigant’s rights. As such, the order of the Family Part was affirmed in part, and reversed in part. 

If you are having trouble with your ex-spouse, our law firm is here to help you.