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Kelly v. Kelly

Decided: June 18, 1992.

BARBARA KELLY, PLAINTIFF,
v.
JOHN C. KELLY, DEFENDANT



Seltzer, P.J.F.P.

Seltzer

[262 NJSuper Page 304] Plaintiff's application for counsel fees requires a determination of the propriety of an award of fees against a party who has taken a clearly mistaken -- even frivolous -- position but who is not motivated by malice. The result is dictated by an analysis of the statutory language permitting an award of fees after consideration of "the financial circumstances of the parties

and the good or bad faith of either party". N.J.S.A. 2A:34-23.

In the present case, Defendant, against whom a default was ultimately entered, rejected a recommendation of the Matrimonial Early Settlement Panel that was close to the advice of his then attorney. Defendant continued to refuse to accept his attorney's recommendations to the point that I determined the attorney-client relationship had so deteriorated that counsel should be relieved. Thereafter, the court entered default against Defendant and a Notice of Equitable Distribution was filed. Defendant appeared on the date set for the hearing and was permitted to participate fully. A decision was rendered on the economic issues that closely approximated the recommendations of both the Matrimonial Early Settlement Panel and Defendant's former attorney.

After the decision was rendered, Plaintiff sought fees, in part based upon her belief "that a substantial portion of the fees involved were as the direct result of Defendant's actions in rejecting the Matrimonial Early Settlement Panel's recommendation . . .". Plaintiff also complains that during the course of this litigation, Defendant behaved in such a way that she was required to obtain restraining orders. Finally, Plaintiff asserts that Defendant failed to appear for one scheduled court appearance although this matter had been adjourned on various other occasions.

Because I am satisfied that Plaintiff is not economically disadvantaged and because I do not believe Defendant acted in bad faith, I deny the application. That denial is grounded in a historical analysis of the statute governing fees.

Prior to the 1988 amendment of the statute, counsel fees were awarded in accordance with the criteria expounded by the Supreme Court in Williams v. Williams, 59 N.J. 229, 281 A.2d 273 (1971). Those criteria related to the applicant's needs, the parties' relative financial ability to bear the costs of litigation

and the applicant's good faith in instituting or defending the action.

In 1988, the Appellate Division ruled that fees may not be awarded because a party has acted in bad faith. Darmanin v. Darmanin, 224 N.J. Super. 427, 540 A.2d 913 (App.Div.1988). Thereafter, in a move widely regarded as a legislative reversal of Darmanin, the legislature, as part of the comprehensive revisions incorporated in Chapter 153 of the Laws of 1988, specifically provided that bad faith was an element to be considered when awarding fees. N.J.S.A. 2A:34-23. That statute provides in pertinent part that when considering a fee application, the court "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." The court rule to which reference is made is R. 4:42-9. All of the conditions of that rule are satisfied here and accordingly, I turn to the statutory criteria.

Initially, I note that any statute which attempts to impose sanctions in the form of fees is subject to attack on the grounds that it impermissibly intrudes upon the Supreme Court's constitutional right to regulate the practice of law in violation of the principles set out in Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406 (1950). See Somerset Trust Co. v. Sternberg, 238 N.J. Super. 279, 285, 569 A.2d 849 (Ch.Div.1989); Evans v. Prudential Property, 233 N.J. Super. 652, 658, 559 A.2d 888 (Law Div.1989); Haines, Court v. Legislature: Who Will AdJudge Frivolity, 130 N.J.L.J. 997 (March 23, 1992). I am nevertheless satisfied that the fee provisions of N.J.S.A. 2A:34-23 are constitutionally permissible for two reasons. The only challenge to a similar statute has been rejected persuasively. Fagas v. Scott, 251 N.J. Super. 169, 597 A.2d 571 (Law Div.1991). Moreover, the Supreme Court permits fees to be awarded when authorized by law. R. 4:42-9(a)(8). The Courts announced and consistent policy of according respect and comity to co-equal branches, See e.g. Passaic County Probation

Officers Ass'n v. County of Passaic, 73 N.J. 247, 374 A.2d 449 (1977), coupled with a failure to amend the rules since 1988 all suggest that the fee provisions of N.J.S.A. 2A:34-23 are constitutional. Accordingly, I turn to ...


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