On appeal from Superior Court, Chancery Division, Family Part, Essex County.
Brody, Gruccio and D'Annunzio. The opinion of the court was delivered by Gruccio, J.A.D.
The sole issue on this appeal concerns the right of a publicly funded legal services agency to be awarded counsel fees pursuant to R. 4:42-9(a)(1).
The facts are essentially uncontested. On March 30, 1989, defendant David McCarroll filed a domestic violence complaint against plaintiff Jacqueline Spoto, alleging criminal mischief and harassment. As a result of proceedings before the court, temporary restraints were issued against plaintiff and defendant was awarded custody of their child.
Plaintiff filed a pro se complaint for custody. Thereafter, she consulted Bergen County Legal Services (Legal Services) and withdrew the pro se complaint. Robert C. Rivas, a Legal Services attorney, filed a custody complaint on plaintiff's behalf.
Following a plenary hearing, the trial judge issued an oral opinion which awarded legal and physical custody to plaintiff and reasonable visitation to defendant. Rivas then requested that the trial judge allow him to submit a certification of services in support of an application for the award of counsel fees against defendant. The trial judge first simply denied the request and a colloquy followed in which Rivas again requested that he be allowed to file the certification and request and indicated to the judge that courts have allowed such applications. The trial judge first inquired as to Rivas' employment with Bergen County Legal Services and as to whether or not the fees would be payable to Rivas individually or to Legal Services. Rivas replied that they would be payable to Legal Services to help run the project. The trial judge expressed his satisfaction that Legal Services exists to provide services to indigents but denied the request. Rivas pressed his request to submit the certification and the trial judge replied:
[B]e aware that I'm going to deny your request and I feel very strongly that the defendant has his own legal services to pay for and I don't think it really does very much credit for any of us, to saddle him with the attorney's fees that would normally be paid by your client, if she could afford to pay them. That there's an agency like yours to help her -- I thank your agency, and I thank God. But we're not going to put the weight of that on the defendant. He's really got enough to worry about as it stands.
Anything else? You've asked, and I've denied it, Mr. Rivas.
Legal Services contends that it is entitled to have the fee application considered on the merits. They claim that defendant's case information statement and income statement clearly indicate defendant's ability to pay an award of fees and that the ruling thus was based solely on Rivas' employment by Legal Services.
The threshold inquiry in this case is whether the trial judge did, in fact, deny the request for counsel fees based solely upon the fact that Rivas was employed by Legal Services. It appears from the dialogue between the judge and Rivas that Rivas' employment by a non-profit, publicly-funded state agency was a significant factor in the judge's decision. However,
although not fully articulated, the judge also considered the burden the award would place on defendant. Further, the judge's statement that it would be unfair to "saddle defendant with the attorney's fees that would normally be paid by plaintiff, if she could afford to pay them" indicates that he was not likely to grant plaintiff's request even if she was represented by private counsel. Nevertheless, the trial ...