On motion for counsel fee.
The question presented for decision is whether a final counsel fee may be awarded where, after pendente lite allowance and before final hearing, the parties have reconciled and are living together as husband and wife.
By her complaint filed April 23, 1953 plaintiff sought support and maintenance for herself and the children of the marriage, exclusive use of the marital home, and discovery of defendant's assets. Two non-matrimonial matters were included in her demand for judgment -- that a stock transfer and certain conveyances she had made be set aside because induced by defendant's fraud, and that defendant be restrained from disposing of his assets. Plaintiff then served a notice of motion for support and counsel fee pendente lite , discovery and a restraining order. This was accompanied by a number of supporting affidavits, including one by plaintiff which set out in some detail defendant's financial position as well as her and the children's needs. There were extensive answering affidavits and a reply affidavit. By order entered July 1, 1953 the court, among other things, directed defendant to pay $200 a week pendente lite for the support and maintenance of plaintiff and the children, a pendente lite counsel fee of $500, and taxed costs.
Defendant in due course filed his answer as well as a counterclaim for divorce on the ground of extreme cruelty and for custody. Plaintiff denied the charge. The action was then approved for trial. It had not yet been set down for hearing when plaintiff's attorney filed a notice of motion that he would on March 12, 1954 apply for a counsel fee for prosecuting the separate maintenance action and defending the counterclaim for divorce, and also for an order dismissing the complaint and counterclaim because the parties had
amicably adjusted their differences. His supporting affidavit revealed that shortly after Thanksgiving 1953 plaintiff informed him she had become reconciled with defendant; that he then advised defendant's attorney the action would have to be discontinued, and that although he had sought an amicable settlement of the counsel fee question he had been told that any application would be opposed. This affidavit set out at length the services rendered on plaintiff's behalf. The attorney had spent some 240 hours on the matter, appeared in court on three occasions and expended $283.64. Attached to the affidavit was a copy of a retainer agreement signed by plaintiff on March 9, 1953. By its terms she retained counsel to secure separate maintenance for herself and the children, an accounting of property jointly held, and the return of any property turned over to defendant. The attorney was to get $8,000 for his services; from this were to be deducted fees allowed pendente lite or by final order, plaintiff to pay the difference.
The counsel fee requested on the motion was $7,500. On April 5, 1954 the judge who had heard the argument filed an opinion, 30 N.J. Super. 276, upholding the right of plaintiff's attorney to a counsel fee despite the reconciliation before final hearing, and fixing the amount of the fee. Counsel for defendant promptly served a notice of motion for leave to reargue, on the ground that the judge had not decided the matter before retirement from judicial office because of age. (Constitution of 1947, Art. VI, Sec. VI, par. 3). I allowed reargument because the judge was without power to make the determination he did almost three weeks after leaving office.
Counsel for plaintiff relies on Morrison v. Morrison , 122 N.J. Eq. 233 (Ch. 1937), a decision by former Advisory Master Herr in which the Chancellor concurred. There, as here, the wife sought separate maintenance, a counsel fee pendente lite was allowed, and a reconciliation was effected just before the hearing, partly through the efforts of her attorney. He then applied for additional counsel fee and
for an order dismissing the bill. The application was granted, the advisory master holding that reconciliation did not defeat the claim of the wife's attorney for compensation.
Vice-Chancellor Howell had reached an opposite conclusion in Kuntz v. Kuntz , 80 N.J. Eq. 429 (Ch. 1912). In denying the requested allowance he said:
"* * * the reconciliation between the parties has abrogated the cause of action, and the suit as a legal proceeding no longer exists. It is true that it has not been formally ended by a dismissal of the bill, but it is likewise true that neither party can take any adverse step in the cause, for the reason that no cause of action exists. The present motion is by the counsel for the wife, but it is made in her behalf, because all proceedings of this nature must be in favor of the wife and all costs and counsel fees which are awarded in the suit must be awarded to her, and only she can proceed in her own name for costs and counsel fees or prosecute the husband for disobedience of an order in relation to the same. To permit a motion of this sort to be prosecuted on behalf of the wife against her husband after they have been reconciled to each other and have resumed cohabitation and are living together in a state ...