On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.
In this matrimonial action, plaintiff-wife appeals from the denial of her application for an award of counsel fees and costs. We consider this denial to have been a mistaken exercise of the trial judge's discretion and reverse.
The parties were married September 6, 1975 and two children were born of the marriage. In August 1982 the parties separated and the following November plaintiff consulted her attorney with respect to the breakdown of the marriage. During the next few months the parties and their attorneys engaged in negotiations which culminated in the execution of a property settlement agreement on April 14, 1983. By this agreement the parties resolved all issues pertaining to custody of the children,
alimony and child support, distribution of marital assets and responsibility for debts incurred during the marriage.
Shortly thereafter plaintiff filed a domestic violence complaint because of threatening conduct of defendant and obtained an order prohibiting defendant from harassing or having any contact with plaintiff, the entry of which was unopposed by defendant. The complaint for divorce was filed on May 18, 1983 in which plaintiff sought a judgment dissolving the marriage, awarding her custody of the children, compelling payment by defendant of child support and alimony, effecting an equitable distribution of marital assets, permitting the resumption of her maiden name and directing defendant to pay her counsel fees and costs. The custody and financial issues having been resolved by the agreement, the case proceeded to a hearing on July 15, 1983 as an uncontested matter. As the settlement agreement provided for counsel fees to be fixed by the court, plaintiff applied for an award, indicating her fees and costs amounted to $2,975. The application was denied by the trial judge at that time and by order dated October 26, 1983 a rehearing requested by plaintiff was denied. Although the court did not clearly set forth the reasons for the denial, it appears from the following comments made by the judge during the course of the rehearing motion that his conclusions were predicated upon the limited extent of services rendered after the filing of the complaint and that those which had been rendered prior thereto related to nonmatrimonial issues:
In all due respect, all of the work was done prior to the commencement of the action and the only thing that was before the court was the one issue on the domestic violence matter and visitation which I assume was worked out.
But I can't award fees in non-matrimonial matters . . .
The authority for an award of counsel fees in a matrimonial proceeding is contained in R. 4:42-9(a)(1) which provided as follows when plaintiff's application was made:*fn1
In a matrimonial action, the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action; but no allowance shall be made as to nonmatrimonial issues merely because joined with matrimonial issues.
Matrimonial actions include ". . . 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 ...