Kole, J.c.c. (temporarily assigned).
This matter originated on a complaint for a writ of habeas corpus by plaintiff mother to regain custody of her four children from their father, charging that he had unlawfully taken them from her home in North Carolina. Plaintiff and defendant are divorced. Defendant, who has remarried and resides in Glen Rock, New Jersey, filed an answer and counterclaim in which he sought custody of the children and such further relief as the court might grant. At the hearing of this matter he also raised the question of whether plaintiff's use of the habeas corpus procedure was proper.
After an emergency hearing held on September 2, 1966, I entered a judgment dated September 3, 1966, which did the following, among other things: (1) The writ of habeas corpus was discharged, since I was of the view that there was no need to determine whether or not the writ was the proper procedure for plaintiff to have used. Instead, I considered the complaint and the counterclaim as crossclaims for temporary and permanent custody of the children. (2) Temporary custody of the children was awarded to their mother forthwith, and the counterclaim was dismissed without prejudice to defendant's
right to seek custody of the children in the appropriate court in North Carolina. In effect, I held that since defendant had wrongfully taken the children out of the State of North Carolina without the consent of plaintiff, their then lawful custodian, and since all of the important contacts in the case were in that state, a New Jersey court, even though it had jurisdiction, should not exercise such jurisdiction over the matter of permanent custody in this case. (3) The judgment was stayed to permit defendant to apply to the Appellate Division for a stay pending appeal.
The Appellate Division denied a stay of judgment but the Chief Justice subsequently granted a temporary stay of judgment on September 7, 1966, until certain conditions were satisfied. (I assume they have been satisfied.) The latter order continued the award of temporary custody to plaintiff pending appeal and directed that the appeal be prosecuted in the Appellate Division.
Thereafter, on September 23, 1966 plaintiff filed an application in this court for costs and counsel fees. The application was made pursuant to a provision of the judgment entered by this court on September 3, 1966 to the effect that "plaintiff may apply for costs and expenses on 5 days' notice to defendant's attorneys, Clapp and Eisenberg." Since defendant has so represented, I will assume for the purpose of this opinion that a notice of appeal to the Appellate Division has been filed even though I have not been served with a copy of any such notice as required by R.R. 1:2-8(a).
Defendant first argues that the reservation in the judgment of plaintiff's right to apply for costs and expenses on notice is of no vitality since it violates R.R. 4:55-8. That rule provides that if, on the determination of a matter an allowance is made for legal services, the judgment stating that determination shall include the allowance. Defendant also argues that the term "costs and expenses" in the judgment does not include counsel fees.
My recollection is that defendant's counsel orally consented to the form of the judgment, including the reservation of the
right to move for costs and expenses. Since the issue of costs and expenses had never been passed on by the court and was set forth in the judgment as a subsequent procedural step, rather than a substantive finding, in the cause, it would appear that defendant, by his consent to the form thereof, has waived any objection to the incorporation of that provision in the order. Cf. State v. Farmer, 48 N.J. 145 (1966). In any event, R.R. 1:2-8(a) is not so restrictive as to prohibit the court from relaxing it in a proper case. Applestein v. United Board & Carton Corp., 35 N.J. 343, 355 (1961); Sarner v. Sarner, 38 N.J. 463, 470 (1962). Manifestly, this is a case where the rule should be relaxed, since the entire matter was heard on an emergency basis. The only issue before the court was whether the defendant properly could continue to have custody of the children he had spirited out of North Carolina from the custody of their mother. The only substantial and important question then to be determined was the one of their custody; the matter of costs, expenses and counsel fees was not even raised or of significance at that time, and was properly left to a later date for consideration. Again, it appears clear to me that the term "costs and expenses" was intended and does include counsel fees. See R.R. 4:55-7; Salvatore v. Salvatore, 73 N.J. Super. 373, 383 (App. Div. 1962). Cf. Pezzino v. Pezzino, 83 N.J. Super. 518, 525 (Ch. Div. 1964).
Defendant further contends that the court is without jurisdiction to award counsel fees or costs since the judgment is now on appeal in the Appellate Division and the appeal ousts the ...