Law Lessons from Sheinbaum v. Campbell, App. Div. (A-5174-06T3; Decided March 31, 2009):

Picture by †猫Dion猫†

An award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). An exercise of discretion will not be disturbed in the absence of a showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).

When reviewing an application for counsel fees, a court is guided by “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. In a family action, Rule 4:42-9(a)(1) authorizes the award of counsel fees and refers to Rule 5:3-5(c), which provides that a court should 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).]

For a court to award counsel fees based on a party’s bad faith, there must be evidence of something more than a showing of an unreasonable, mistaken or frivolous position. Kelly v. Kelly, 262 N.J. Super. 303, 308 (Ch. Div. 1992). There must be evidence that a party had malicious motives, was unfair, desired to destroy the opposing party, or used the court system improperly to force a concession which was not otherwise available. Ibid. “‘[W]here one party acts in bad faith, the relative economic position of the parties has little relevance’ because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party.” Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000) (quoting Kelly, supra, 262 N.J. Super. at 307).

Proof that a party receives periodic or routine loans or gifts of relatives, or receives a large lump sum gift that generates income, may be relative in determining the party’s “need” under a counsel fee analysis. See Argila v. Argila, 256 N.J. Super. 484, 494-95 (App. Div. 1992) (stating that a court should consider “income and available capital assets” in determining a counsel fee application).

See related Blog Post, published in the New Jersey Family Law blog.

 Print This Post

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Technorati Tags: , and easy technorati tags for wordpress plugin