On appeal from Superior Court, Chancery Division, Family Part, Middlesex County. Motion for counsel fees argued November 15, 1995 - Decided December 4, 1995.
Approved for Publication December 4, 1995. As Corrected March 6, 1996.
Before Judges Long, Muir, Jr. and Brochin. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by LONG, P.J.A.D.
Plaintiff, M. W., filed a domestic violence complaint against her lover of two years, defendant, R.L., claiming that he told her over the telephone that he would never allow her to leave him alive. The complaint alleged that this supposed conversation constituted "terroristic threats" and "harassment."
At trial, defendant produced recordings of his conversations with plaintiff and her brother which appeared to show that the threatening conversation never took place, and that in fact, plaintiff had fabricated the entire incident. The family court Judge thus was unable to conclude that terroristic threats occurred. Nevertheless, the Judge amended the complaint sua sponte to charge harassment based not on the fabricated phone call but on other phone calls defendant had made in an attempt to secure some missing handguns which he believed plaintiff had taken. The Judge proceeded to make a finding that defendant had committed harassment based on these phone calls. Defendant appealed, and we reversed and remanded, holding that he hadbeen denied an opportunity to defend himself as to the amended harassment charge because of the procedure utilized by the trial Judge.
Defendant has since made a motion to this court for counsel fees, and notwithstanding the pendency of further proceedings in the trial court, we agreed to consider this motion. Defendant bases his application for fees on R. 2:11-4 which provides in pertinent part:
Fees may be allowed by the appellate court in its discretion:
(a) In all actions in which an award of counsel fee is permitted by R. 4:42-9(a), . . . .
Rule 4:42-9(a), in turn, provides that counsel fees are permitted in several situations, including:
(1) In a family action, the court in its discretion may make an allowance both pendente lite and on final determination to be paid by any party to the action, including if deemed to be just any party successful in the action, on any claim for divorce, nullity, support, alimony, custody, visitation, equitable distribution, separate maintenance, enforcement of interspousal agreements relating to family type matters and claims relating to family type matters in actions between unmarried persons (second emphasis added).
(8) In all cases where counsel fees are permitted by statute.
Defendant argues that he is entitled to counsel fees under R. 4:42-9(a)(1) because this is a family type matter and under R. 4:42-9(a)(8) because plaintiff's complaint was frivolous and thus subject to the award of counsel fees under New Jersey's frivolous litigation statute, N.J.S.A. 2A:15-59.l.
Plaintiff counters that the Prevention of Domestic Violence Act only allows the award of counsel fees to plaintiffs in domestic violence actions. ...