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Schmidt v. Schmidt

Decided: November 19, 1992.

ANGELA SCHMIDT, PLAINTIFF,
v.
CARL SCHMIDT, DEFENDANT



Healy, J.s.c.

Healy

[262 NJSuper Page 452] At the final hearing, the attorney for the victim (plaintiff) sought an award of attorney's fees. At that time, the court ruled that although attorney's fees may be an appropriate form

of damages under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 et seq., it would require the attorney for the plaintiff to submit the appropriate affidavit of service pursuant to R. 4:42-9(b).

In accordance with the court's instructions, plaintiff's attorney filed a motion seeking attorney's fees after the final restraining order was entered in this domestic violence case. Oral argument was heard on November 19, 1992.

Plaintiff's attorney argued that attorney's fees are punitive in nature. Defendant was found to have perpetrated an act of domestic violence against the plaintiff. Therefore, attorney's fees should be assessed in favor of the plaintiff and against the defendant.

Defendant's attorney contended that, before an award of attorney's fees, the court must first conduct an analysis following N.J.S.A. 2A:34-23 and Williams v. Williams, 59 N.J. 229, 281 A.2d 273 (1971). Actual need, the ability to pay, and the good faith of the parties are to be examined, under the traditional analysis, in order to determine whether attorney's fees should be awarded.

Attorney's fees may be awarded in cases where they are permitted by statute. R. 4:42-9(a)(8). Under the Prevention of Domestic Violence Act of 1990, a Family Court Judge may issue

An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. The order may require the defendant to pay the victim directly, to reimburse the Violent Crimes Compensation Board for any and all compensation paid by the Violent Crimes Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine. Compensatory losses shall include, but not be limited to, loss of earnings or other support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken, cost of counseling for the victim, moving or other travel expenses, reasonable attorney's fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages. [ N.J.S.A. 2C:25-29 b(4)]

"The allowance of reasonable counsel fees is permitted where they are a traditional element of damages in a particular cause of action." Enright v. Lubow, 202 N.J. Super. 58, 85, 493 A.2d 1288 (App.Div.1985).

N.J.S.A. 2C:25-29 b(4) expressly includes "reasonable attorney's fees" as compensatory damages. "Statutory language should be given its ordinary meaning absent specific intent to the contrary." Calabro v. Campbell Soup Co., 244 N.J. Super. 149, 163, 581 A.2d 1318 (App.Div.1990); Town of Morristown v. Woman's Club, 124 N.J. 605, 592 A.2d 216 (1991). Because they are viewed as compensatory damages, attorney's fees are not subject to the traditional analysis contained in N.J.S.A. 2A:34-23 and Williams v. Williams, 59 N.J. 229, 281 A.2d 273 (1971).

In determining whether to require defendant to pay plaintiff's attorney's fees under the Prevention of Domestic Violence Act of 1990, this court believes that there are three requirements to be examined. The fees must be a direct result of the domestic violence; they must be reasonable; and pursuant to R. 4:42-9 (b), they must be presented by affidavit.

In this case, defendant committed an act of domestic violence against the plaintiff as a result of contact between the parties during visitation of the parties' minor child. The act resulted in plaintiff bringing an action against the defendant. Plaintiff incurred ...


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