Law Lessons from LINDA SELLITTI V. PATRICK F. SELLITTI, App. Div., A-2412-08T1, October 21, 2009:

Counsel fees may be awarded in family actions pursuant to Rule 5:3-5(c). R. 4:42-9(a)(1). A relevant factor to be considered by the motion judge on an application for counsel fees is whether a litigant has acted in “bad faith.”

Critical to a consideration of bad faith is the recognition that an award of fees against a “bad faith” litigant is not a sanction, see Darmanin v Darmanin, 224 N.J. Super. 427, 430 (App. Div. 1988), or punitive, see Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999), but reflects the additional and unnecessary costs imposed on the innocent party. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000); Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992); see also Welch v. Welch, 401 N.J. Super. 438, 448 (Ch. Div. 2008).

In this case, the appellate court did not deem the award of counsel fees to be a “futile gesture.” Ultimate payment may never be accomplished; however, at the least, the court held that there must be a recognition that defendant’s conduct has a cost attached to it.

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

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