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Crowe v. De Gioia

Decided: March 12, 1986.

ROSE K. CROWE, A/K/A ROSE K. DE GIOIA, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
SERGIO DE GIOIA, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 203 N.J. Super. 22 (1985).

For affirmance -- Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. Stein, Justice, concurring in part and dissenting in part.

Per Curiam

The judgment of the Appellate Division is affirmed, substantially for the reasons expressed in the opinion of Judge Long, reported at 203 N.J. Super. 22 (1985).

STEIN, Justice, concurring in part and dissenting in part.

I agree with the Court's disposition of all of the issues in this litigation, except for its affirmance of the Appellate Division's determination that the trial court was precluded from awarding a counsel fee to plaintiff.

As noted by the Appellate Division, the trial court found that defendant had agreed to support Mrs. Crowe for the remainder of her life in consideration of her performance of a variety of services during the twenty years that she lived with him. The trial court established an appropriate annual-support figure. The court then arrived at a one-time lump-sum judgment in an amount predicated upon the present value of the reasonable future support defendant promised to provide, computed by reference to plaintiff's life expectancy as shown by the tables referred to in Rule 1:13-5.

Plaintiff applied to the trial court for an award of counsel fees. At the conclusion of the trial, her counsel fees amounted to approximately $55,000 or about one-third of her lump-sum award. The trial court clearly expressed its regret over its perceived lack of discretion to award counsel fees:

In my heart I would love to give you a counsel fee * * * I really would. Because I feel that obviously Mr. * * * DeGoia [sic] did in fact make a promise. I think it's a promise he reneged upon. * * * I think it's his actions * * * his

inaction or lack of desire to stick by the express promise that caused the trial of this case.

I am very torn by the counsel fee. I can appreciate the fact the amount of money I've awarded Mrs. Crowe really doesn't consider a counsel fee in it.

If this was a marriage situation, he certainly would get a counsel fee in this particular case based on a number of factors, A, the fact that he was forced to try the case because Mr. DeGioia would not concede his position, and he won, at least he's won so far.

No. 2, the parties have a very unequal economic situation.

No. 3, I don't think Mrs. Crowe can afford to pay Mr. Goldin, but I don't see any authority for me to award a counsel fee in this case. The only thing I can possibly hang my hat on is that this is a Court of Equity and equity ...


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