Law Lessons from Bove v. Bove, App. Div. (A-5545-07T2; Decided April 15, 2009):

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In awarding attorney’s fees, N.J.S.A. 2A:34-23 requires a court “to consider 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.” Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999). Rule 5:3-5(1)(c) requires that 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.” Mani v. Mani, 183 N.J. 70, 94-95 (2005). After considering these factors, the trial court may, in its discretion, award counsel fees to any party. R. 5:3-5(1)(c); Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).

As Rule 5:3-5 makes clear, the trial judge must consider the parties’ financial circumstances in making an award of counsel fees. The responsibility to provide this information, however, rests solely on the parties. See Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (holding that the parties must provide the court with financial information when counsel fees are to be awarded based upon the parties economic positions). This is illustrated by Rule 5:5-2, which states the duty of the parties to provide a case information statement is so crucial in all contested family actions regarding custody, support, alimony or equitable distribution, that the court may dismiss a party’s pleadings when it is not provided.

Rule 5:3-5(c) states that a court should consider “the reasonableness and good faith of the positions advanced by the parties” when considering a request for counsel fees. In the first instance, if both parties litigate in good faith, fees are not awarded unless the parties economic positions are unequal. Kelly, supra, 262 N.J. Super. at 307. However, where 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).

Rule 5:3-5 does not require a finding of “bad faith,” but instead calls upon the court to consider the “good faith” of the parties’ positions. Good faith is defined a “a state of mind consisting in . . . honesty in belief and purpose. . . .” Black’s Law Dictionary 701 (7th ed. 1999). Bad faith is the opposite, defined as “[d]ishonesty of belief or purpose.” Id. at 134; Kelly, supra, 262 N.J. Super. at 308.

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