Keefe, J.s.c. (temporarily assigned).
[178 NJSuper Page 76] The issue before the court is a matter of first impression. The case is presented in the context of an action brought by the Division of Youth and Family Services (hereinafter referred to
as the Division) for termination of parental rights. The specific question is whether, under 42 U.S.C.A. § 1988, a defendant is entitled to attorney fees and costs when the state agency fails to maintain its burden for termination of parental rights. Additionally, the court must determine whether defendants under these facts may recover attorney fees and costs under R. 4:42-9(a). The issues will be addressed in inverse order.
The Division's actions in this case were based upon two separate complaints which were later consolidated by the court. The first complaint for custody of the defendants' child was filed pursuant to N.J.S.A. 9:6-8.21 et seq. and N.J.S.A. 30:4C-12. The second complaint to terminate parental rights was filed four months later pursuant to N.J.S.A. 30:4C-15. On July 15, 1980, these actions were dismissed without prejudice in accordance with a consent order. The order recognized that the Division intervention was justified, but that the evidence was not sufficient to warrant termination of parental rights. It was agreed, however, that the child's interests would be best safeguarded by leaving custody to the Division while the family was in therapy. The child would be returned to the family when it was determined to be in his best interests. The order preserved the defendants' right to move for counsel fees.
R. 4:42-9(a)(1) provides for attorney fees in matrimonial actions as defined under R. 4:75:
"Matrimonial Actions" shall be construed broadly to include all actions brought under N.J.S. 2A:34-1 to 27, inclusive, and R.S. 9:2-1 to 11, inclusive; all actions brought under the inherent jurisdiction of the court for the nullity of marriage, for the protection of the status of marriage by injunction or otherwise, and for the confirmation or otherwise of the validity of marriage by declaratory judgment; all actions brought under the parens patriae jurisdiction for the custody of infants; all actions for the enforcement, modification or vacation of agreements for support and maintenance; and in general, all actions directly involving the status of marriage, awards to and support of spouses and former spouses, the custody and support of children; and claims between spouses and former spouses as to property claimed to be owned by them; and shall include all non-matrimonial actions joined with matrimonial actions. Matrimonial actions shall be cognizable in the Chancery Division and heard by any judge thereof assigned to hear matrimonial actions in the county where the venue may be laid under R. 4:76.
"Nullity of Marriage" means nullity under N.J.S.A. 2A:34-1 and annulment of marriage under the general equity jurisdiction of the Superior Court.
Custody proceedings referred to in the above rule arise under two specifically defined actions; 1) actions brought under the parens patriae jurisdiction for the custody of infants and 2) actions directly involving the status of marriage. Neither situation is present here.
The instant complaint is not premised on the inherent parens patriae jurisdiction of the court, but rather upon a statutory cause of action, N.J.S.A. 9:6-8.21 et seq. and N.J.S.A. 30:4C-12. Thus, while the court may assume parens patriae jurisdiction during the proceedings, such power is only ancillary to its original jurisdiction. Cf. Sorentino v. Family & Children's Society of Elizabeth , 72 N.J. 127 (1976).
R. 4:75 emphasizes that, except in the case of parens patriae jurisdiction, references to child custody proceedings are derivative of "actions directly involving the status of marriage". Grammatically, items in a series separated by semi-colons have equal and independent status. Each individual item may itself have subordinate, parenthetical information which can be set off by commas. Information which appears within commas serves to modify, clarify or augment the main thought. Comma phrases have no independent relevance and cannot stand alone. The rule in question is broken into seven semi-coloned phrases. In the fifth phrase the "child custody" reference enclosed by commas does not stand alone but rather modifies the dominant phrase concerning actions directly involving the status of marriage.
Defendants fail to satisfy the requirements defined in R. 4:75. Accordingly, they are not entitled to attorney fees under R. 4:42-9(a)(1).
The second theory raised by defendants to support an award of counsel fees arises under R. 4:42-9(a)(8), which provides for the award where permitted by statute. The word statute has been interpreted ...