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Cohen v. Cohen

Decided: January 28, 1977.

MARY D. COHEN, PLAINTIFF-RESPONDENT,
v.
MURRAY L. COHEN, DEFENDANT



Matthews, Seidman and Horn.

Per Curiam

This is an appeal by the law firm which formerly represented plaintiff wife in her matrimonial action. The trial judge is alleged to have erred essentially in denying appellant's application for approval of the amount of counsel fee that she should pay for its legal services over and above the amount awarded to it as counsel fee to the wife against the husband, and in denying the application to award judgment in its favor and against plaintiff wife for said amount less credit for such sums as may be paid by defendant husband under the award of counsel fee made against him.

Appellant law firm represented Mrs. Cohen from the inception of the matrimonial action until its conclusion when the final judgment was entered on March 24, 1975. This judgment contained an order (judgment) "allowing to appellant against defendant, Murray L. Cohen [husband-defendant in said matrimonial action], for counsel fees in the amount of $8,500 together with taxed costs."

Thereafter, on August 1, 1975 appellant law firm moved before the matrimonial judge who had entered the final judgment for an order "[a]djudicating as fair and reasonable the fee charged by [said firm] to plaintiff ($15,177.85 which includes costs) and entering judgment against plaintiff for said amount" less credit for all monies paid by Murray L. Cohen "when and if same are collected," and providing for the manner, method and time of payment of the fee "found to be due and owing from plaintiff to her attorney."

Attached to the notice were certifications of a member of the law firm setting forth an itemization of the services allegedly performed and a statement that he understood Mrs. Cohen was willing to acknowledge

Said attorney further stated that without some instruction from the court the course suggested by Mrs. Cohen would "place me in a race with my former client for the collection of Mr. Cohen's assets." Accordingly, he requested the judge to adjudicate the reasonableness of the fee charged to Mrs. Cohen and the manner and method of collection.

At oral argument Mr. Slavitt for his law firm, appellant, expressed his solicitude for Mrs. Cohen and the predicament in which she might find herself if his firm attempted to recover from her former husband the $8,500 allowance out of assets of his that might otherwise be subjected to satisfying the terms of the final judgment, which also provided for alimony, child support and equitable distribution.

Mrs. Cohen was represented by other counsel, who contested appellant's right to the relief sought. She filed an affidavit below in opposition to appellant's motion, in which she denied any agreement to pay a fee of $15,000. She asserted, instead, that when she engaged appellant's firm she was told the fee would approximate $7,500. When she explained she had no assets "[h]e told me that he would take a $500 retainer and that I would not have to pay the balance of $7,000 until the case was finished," and that he would credit upon said approximate fee whatever was received by way of allowance by the court from her husband.

The parties waived oral argument and submitted the determination of the motion to the trial judge on the pleadings,

affidavits, certifications and memorandums of law. The judge denied appellant's application. Hence this appeal.

According to the agreed statement of proceedings in lieu of transcript pursuant to R. 2:5-3(e), the trial judge indicated that he did not dispute that the work performed by appellant was done or that appellant was entitled to its fee, but that he did not believe that his court had the jurisdiction or authority to grant to petitioner an award against its own client or the balance of the relief requested by appellant. He expressed an opinion that a separate suit should be instituted in the Law Division to collect the balance of the fee ...


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