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Mayer v. Mayer

Decided: July 14, 1981.

BETSY C. MAYER, PLAINTIFF-RESPONDENT,
v.
MARTIN C. MAYER, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Chancery Division, Essex County.

Allcorn, Pressler and Furman.

Per Curiam

[180 NJSuper Page 165] By the plain terms of R. 4:42-9(b), the allowance of counsel fees to the wife in a matrimonial action may be considered only where the application is supported "by an affidavit stating in detail [1] the nature of the services rendered, [2] the amount of the estate or fund, if any, [3] the responsibility assumed, [4] the results obtained, [5] the amount of time spent by the attorney,

[6] any particular novelty or difficulty, [7] the time spent and services rendered by paraprofessionals, [8] other factors pertinent in the evaluation of the services rendered, [9] . . . the amount of the allowance applied for, and [10] an itemization of disbursements for which reimbursement is sought." In making a determination as to whether an allowance should be granted, the court must "focus on several factors, including the wife's need, the husband's financial ability to pay and the wife's good faith in instituting or defending the action." Williams v. Williams , 59 N.J. 229, 233 (1971).

In the present case, the trial judge initially allowed plaintiff the sum of $12,317.50 as a counsel fee, the sum of $7,589.50 as an accountant's fee, and the sum of $2,000 as a real estate appraiser's fee. Mayer v. Mayer , 150 N.J. Super. 556, 568 (Ch.Div.1977). Although the aggregate of the sums allowed amounted to $21,907, the trial judge seemingly granted the allowances in the first instance simply upon the mere assertion of a claim by counsel contained in a written summation submitted at the request of the court at the close of the trial. It was there stated:

In addition, application is made on behalf of the wife for the husband to pay for the fees and expenses of the wife incurred by her in this matrimonial action. The wife retained the services of Skoloff & Wolfe, P.A., as her attorneys, of the J. H. Cohen & Company as her accountants, and of Bertram R. Brown as the real estate appraiser who appraised the various real estate items involved in this matter. The bill of Bertram R. Brown enclosed . . . is in the amount of $2,000.00. The bill of Gordon Asnis enclosed . . . is in the amount of $7,589.00. The bill of Skoloff & Wolfe, P.A., enclosed . . . for services rendered is in the amount of $12,317.50, no part of which has been paid to date. We enclose herein . . . a copy of our retainer agreement. . . .

From the record before us, it does not appear that this "application" was accompanied by any supporting affidavit or certification as required by R. 4:42-9(b) -- although counsel apparently did submit to the court copies of the office time records.

Be this as it may, when the omission was called to the attention of the trial judge, he executed an order, dated July 22, 1977, directing that the judgment of divorce "insofar as it provides for counsel fees and accountant's fees, shall not be a final judgment, and will be reconsidered unless Certifications or

Affidavits of Services had been filed prior to entry of the Judgment of Divorce and appropriately served upon counsel for the defendant." Subsequently, counsel for plaintiff served and filed a "certification of services rendered," dated November 1, 1977, covering the period "September 11, 1975 until June 1, 1977." In pertinent part, the certification set forth:

3. Attached . . . is a copy of the retainer agreement . . . indicating a retainer of $3,000 . . . against an hourly rate of $125 for myself and $75 for any associate . . . the minimal fee would be $3,000 in the event of an early settlement. . . .

8. Attached hereto . . . are photocopies of all time records maintained in the office from the date that I took over the file, September 11, 1975, until June 11, 1977, ...


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