On appeal from the Superior Court, Chancery Division, Family Part, Sussex County.
Pressler, Long and Gruccio. The opinion of the Court was delivered by Long, J.A.D.
Plaintiff Robert William Salch and defendant Nancy B. Salch were divorced in March, 1989. The judgment incorporated a property settlement agreement which resolved all of the outstanding financial issues between the parties with the exception of counsel fees, which were reserved for future disposition. In May 1989, defendant moved for counsel fees. Plaintiff defended against the motion and on June 23, 1989, the judge denied the motion for fees. In so doing, he concluded that the fees requested were "extremely reasonable" and resolved the issue of who would bear the fees this way:
It seems that the only rationale for Mrs. Salch asking for Dr. Salch to bear her fees is that he has a greater income on an annual basis than she does. When I look at the equitable distribution that was achieved, it does appear that the parties came away with almost a fifty/fifty split.
I also note that Mrs. Salch received a substantial amount of child support. I think it was, what was it, sixteen hundred dollars a month?
I started out thinking that perhaps the way to resolve this was to assess a sum against Dr. Salch less than the total amount of counsel fees. But when I apply the present law in New Jersey to the facts of this case, I have difficulty in justifying quite frankly an assessment of counsel fees in any amount against Dr. Salch. Granted, I don't think there's any question about it that he does have a greater income on an annual basis.
However, it does appear and I can't say that it's the fault of counsel, that's not what I'm saying, it does for whatever reason appear that the settlement that was proposed was not accepted by Mrs. Salch until -- or was not used for a
basis for ultimately resolving this matter until an extended period of time had passed.
Taking into consideration all of the circumstances as well as the case law, also taking into consideration the financial resolution that was achieved by the parties as part of the Judgment of Divorce, I do not find that there's any basis for the court to grant the request of Mrs. Salch. And therefore I'm going to deny the request for an award of counsel fees and costs.
But I want the record to reflect very clearly the denial is not based upon the hourly rate of counsel nor the total amount of fee. I think both are very reasonable. It's based solely upon the particular circumstances of this case as well as the case law in New Jersey.
The award of counsel fees in a matrimonial case rests in the sound discretion of the trial judge. R. 4:42-9. Brennan v. Brennan, 187 N.J. Super. 351, 454 A.2d 901 (App.Div.1982). However, that discretion is not unfettered. In deciding such an application, the standards set forth in our statutes and cases must be addressed by the judge. For example, the motion for fees must establish the applicant's need and the ability of the former spouse to pay. Williams v. Williams, 59 N.J. 229, 233, 281 A.2d 273 (1971). In addition to these financial considerations, the trial judge must take into account the good or bad faith of either party. N.J.S.A. 2A:34-23. The trial judge's rather cryptic opinion in this case addressed none of these issues in any meaningful way and fell far short of his obligation under R. 1:7-4. As we have often said, failure to perform the fact-finding duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 570, 417 A.2d 15 (1980) (citing Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4, 357 A.2d 55 (App.Div.1976)). Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion. In the absence of reasons, we are left to conjecture as to what the judge may have had in mind.
In defense of the judge, he was a virtual stranger to this case, which was filed in 1987. From 1987 until the divorce was entered in 1989, another trial judge was in charge of the case. He entered the pendente lite order on June 19, 1987; he ...