Schettino, Hall and Gaulkin.
Appeal is from a Chancery Division order allowing counsel fees at final hearing.
Plaintiff instituted a suit for separate maintenance. Defendant filed an answer and a counterclaim for divorce on the grounds of extreme cruelty and desertion.
There was an application for support pendente lite , counsel fees and costs. Support was denied but a counsel fee of $1,000 was allowed. The granting of this allowance was reversed by this court. Wheeler v. Wheeler , 48 N.J. Super. 184 (App. Div. 1957). Plaintiff pro se almost immediately thereafter withdrew her complaint, did not file an answer to defendant's counterclaim and did not contest the defendant's suit. Plaintiff's attorney made an application
to withdraw from the case, reserving the right to apply for fees, to be paid by defendant at the final hearing of defendant's counterclaim, for services rendered to plaintiff in the trial court and on the appeal. The application was granted. The court entered an order dismissing the complaint, a default as to the counterclaim and directed that the defendant's action proceed uncontested.
Upon the conclusion of the hearing on defendant's counterclaim, a judgment nisi was entered in favor of defendant on the ground of desertion. By separate order, the court made an allowance to plaintiff's attorney of $1,200. It is from this latter order that the appeal has been taken.
On this appeal defendant contends that the allowance of a counsel fee to a wife or her attorney in any uncontested case is without authority or precedent and constituted an abuse of judicial discretion. As we view this appeal, we need not consider such a broad contention. We confine our determination to the particular circumstances here.
The claims and counterclaims of the parties were minutely set forth in the appellate opinion in the Wheeler case. It was there noted that plaintiff had taken assets of defendant totalling about $250,000 and that two years before the institution of the separate maintenance action she had between $100,000 and $150,000. Both the trial court and this court denied plaintiff pendente lite support.
Generally, there are several important elements which are considered when a wife applies for counsel fees and other suit monies -- the wife's necessity, the husband's financial ability, and the wife's good faith and probable success. What Judge Goldmann had to say in Wheeler concerning pendente lite allowance also applies here (48 N.J. Super. at page 193):
"* * * In the early days our courts made such allowances almost as a matter of course because, at common law, the husband by reason of the marriage contract acquired complete control over all property owned by his wife at the time of the marriage, or which she might acquire during coverture. That being the case, unless the court required the husband to support his wife and to furnish her with the means of prosecuting her suit or defending his,
she would be left destitute and defenseless during the litigation. Accordingly, in almost all cases she was regarded as a privileged suitor, who had a right to call upon her husband for both support ...