Arnone, J.J.D.R.C. (temporarily assigned).
This matter is before this court to determine if a counsel fee should be awarded defendant-wife's attorney although a voluntary dismissal of the complaint was taken by plaintiff-husband and an alleged reconciliation took place.
On February 24, 1971, plaintiff, Robert Weiner, commenced a divorce action based on the ground of extreme cruelty, against defendant, Beatrice Weiner.
The matter proceeded with all the concomitant motions interspersed between the date of the filing of the complaint to the actual trial date scheduled for October 12, 1971. On that date, and in a conference in chambers, plaintiff's attorney disclosed that plaintiff desired to withdraw his complaint. The basis set forth by plaintiff for his voluntary dismissal was that the parties had reconciled. Defendant's attorney questioned the bona fide aspect of the reconciliation. Nonetheless, on October 19, 1971 an order was entered dismissing the complaint and granting leave to defendant's attorney to make application for counsel fees.
On January 4, 1972 defendant's attorney, Ira J. Katchen, Esq., by motion applied for counsel fee less credit for what plaintiff had already paid him pendente lite -- a total additional request of $3,500. A detailed affidavit of legal services rendered accompanied the motion.
On January 10, 1972 plaintiff responded that at the date of the hearing (October 12, 1971) he and his wife had reconciled and were still living together, and because of this reconciliation, the attorney for defendant was not entitled to any additional fee, and further, plaintiff argues that the pendente lite fee should be returned to him.
Defense attorney in his reply affidavit states that the order of dismissal reserved to him the right to apply for counsel fees upon the filing of his affidavit of services. In addition, he states that his client has informed him that there is presently no reconciliation between the parties and that plaintiff is living in Florida and defendant in New Jersey. This is supported by defendant's affidavit wherein she submits that although she is still plaintiff's wife, he has abandoned and deserted her and is refusing to live with her or to adequately maintain her.
Plaintiff claims that a reconciliation was effected but that defendant refused to accompany him to Florida. He alleges that a settlement agreement was informally reached without either attorney present, but that defendant would
not sign it because her attorney told her that if plaintiff did not pay his fees, he would sue her for the amount.
The court, in its discretion, may make an allowance to counsel in a matrimonial action. R. 4:42-9(a)(1). However, this rule was applied where the matrimonial action was terminated by the progress of the litigation to final judgment. Anything short of final judgment was deemed a bar to the fee. This strict limitation was applied accordingly.
Thus, the attorney for a wife who dropped her suit for separate maintenance and whose husband in turn dropped his counterclaim for divorce, was denied a final counsel fee. The final fee was denied even though the attorney for plaintiff-wife was responsible, by his efforts, for the reconciliation of the parties, and notwithstanding that he had a ...