Law Lessons from C.D., A.P., AND D.D. VS. N.D.M. AND A.L., App. Div., A-1944-11T4, January 8, 2013:
The court may award fees to any successful party in a family matter. R. 5:3-5(c). The decision is reviewable under the abuse of discretion standard. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). The Appellate Division should overturn the “trial court’s determination on counsel fees only on the ‘rarest occasion,’” and only for a clear abuse of discretion. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The 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 both during and prior to trial;
(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.
Even though the decision on fees is discretionary, the court must consider the above factors in making its determination. Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 5:3-5 (2013).
Bad faith and relative financial ability to fund the litigation are the two most significant factors in a determination of counsel fees. See Williams v. Williams, 59 N.J. 229, 233 (1971) (awarding legal fees in a matrimonial action requires “courts [to] focus on several factors, including the wife’s need, the husband’s financial ability to pay and the wife’s good faith in instituting or defending the action”).
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