On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County.
Furman, Brody and Long. The opinion of the court was delivered by Brody, J.A.D.
The issue in this appeal is whether a court may award counsel fees to sanction the party assessed for failing to make a prima facie showing of changed circumstances on her motion for increased child support. We hold that counsel fees may not be assessed in a family action as a sanction for asserting an unsuccessful claim or raising an unsuccessful defense.
Defendant (the wife) moved for an increase in support payments for the two children of the marriage based on changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). The court refused to order discovery into the finances of plaintiff (the husband) because the wife's certification fell short of the prima facie showing required by Lepis. Id. at 157.
The wife relied on an increase in the consumer price index, on the level of expenses of her present household which since the divorce has included her mother, and on the fact that the children have become older since the parties had agreed upon the level of the children's support in April 1981. The trial judge held that a prima facie showing required that the wife submit evidence of current expenses specifically attributable to the children and their expenses in 1981*fn1 so that he could make the necessary comparison. The judge denied the request of the wife's attorney to continue the motion to give him time to supplement the wife's certification, but he denied her motion without prejudice so that she could immediately renew it.
Upon denying the wife's motion, the judge granted the husband's motion for counsel fees for the following reasons:
But I'm also going to, because I think the defendant -- the plaintiff in this case was put to expenses of defending this action, I think it's equitable under the circumstances to award the plaintiff attorney's fees because they were put to the expense of coming here and defending against this thing, and so, so that's my determination.
The judge made no findings regarding the need of the husband or the ability of the wife to pay the husband's counsel fees. In the course of argument on the wife's motion, the judge had acknowledged that the husband's annual earnings were $51,144 and the wife's $20,000. The judge was unable to make the award at the time because the husband's attorney had not prepared an affidavit of services.
The judge thereafter ordered the wife to pay $916.65 of the $1,765.40 counsel fees and costs that the husband had incurred in opposing her motion. The matter of counsel fees was again before the trial judge on the wife's motion to reconsider the award. In denying that motion the judge enlarged somewhat upon his reasoning:
One thing that should be made clear is when I denied the Lepis application I did not deny it with prejudice, but I sensed that it would be in the interests of the parties if the matter could be resubmitted again upon a proper showing. I did not find that the inadequacies of the showing made lay in the factual situation but rather in the presentation and the submission of the certifications.
I found [at the prior hearing] that the award of counsel fees here was equitable. I also believe that the financial burden of defending against an application made under Lepis, which I found was not warranted, when cast upon the moving party should deter the moving party from exercising the option given to her again under the without prejudice denial unless there has indeed been an adequate showing the next time around. In this way the denial without prejudice was given ...