On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Burlington County, FV-03-664-00-Y.
Before Judges Newman, Fall and Axelrad.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 4, 2002
In a per curiam opinion dated January 2, 2002, we upheld the final restraining order entered in favor of plaintiff, Lisa M. Grandovic, against defendant, Lawrence W. Labrie, Jr., her former boyfriend and the father of her child. Plaintiff prevailed on every issue of the appeal.
On January 14, 2002, plaintiff filed a notice of motion (M- 2441-01) seeking an order compelling defendant to pay her attorney's fees and costs incurred as a result of her successful defense of defendant's appeal. The issue before us is whether attorney's fees may be awarded on appeal to a prevailing victim in a matter filed under the Prevention of Domestic Violence Act of l990 ("Act"), N.J.S.A. 2C:25-1 to -35. We conclude in the affirmative.
Pursuant to Rule 2:11-4(a), attorney's fees may be allowed by the appellate court in its discretion, "[i]n all actions in which an award of counsel fee is permitted by R. 4:42-9(a) . . . ." Rule 4:42-9(a) provides that attorney's fees are permitted in several situations including:
(1) In a family action, a fee allowance both pendente lite and on final determination may be made pursuant to R. 5:3-5(c).
(8) In all cases where counsel fees are permitted by statute.
Rule 5:3-5(c) permits the award of attorney's fees in a family action as follows:
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, parenting time, equitable distribution, separate maintenance, enforcement of inter-spousal agreements relating to family type matters and claims relating to family type matters in actions between unmarried persons.
In M.W. v. R.L., 286 N.J. Super. 408, 411 (App. Div. l995), we were confronted with the issue of whether a defendant in a domestic violence complaint which was reversed and remanded was entitled to an award of attorney's fees on appeal. Defendant claimed that he was entitled to attorney's fees both under Rule 4:42-9(a)(1), because his case was a "family type matter," and under Rule 4:42- 9(a)(8), because plaintiff's complaint was frivolous and subject to an award of attorney's fees under New Jersey's frivolous litigation statute, N.J.S.A. 2A:15-59.1. M.W., supra, 286 N.J. Super. at 410. We held that "even if a domestic violence complaint could be conceived of as a family type matter for purposes of R. 4:42-9, the rule cannot be invoked to award counsel fees [on appeal] to a prevailing non-victim in a domestic violence case" because the prevailing non-victim would obtain by indirection a benefit intentionally made unavailable by the Act. M.W., supra, 286 N.J. Super. at 411. We permitted the trial judge to determine whether to award attorney's fees to defendant under the frivolous litigation statute. Id. at 412.
In the present case we also need not reach the issue of whether plaintiff's domestic violence complaint constitutes a claim "relating to family type matters in actions between unmarried persons" because we are satisfied that attorney's fees incurred in successfully defending defendant's appeal of the final restraining order are "permitted by statute" under Rule 4:42-9(a)(8). In addition, costs on appeal are recoverable by law in favor of the prevailing party. R. 2:11-5.
The Act expressly includes "reasonable attorney's fees" as compensatory damages, providing that in proceedings where restraining orders have been filed, the ...