On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, FM-13-1130-00-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Sabatino and Lyons.
Ralph Ciallella (Father) appeals from the December 23, 2003 order denying his cross-motion. We reverse and remand for consideration of the cross-motion.
The parties were married on August 28, 1976. They have one son, Jack, who is now age 21. On January 4, 2001, Father and Mother entered into the Property Settlement Agreement (PSA), which was incorporated into their Judgment of Divorce.
The PSA requires each party to make certain financial payments for the support of Jack. Specifically, at issue in this case, is the provision with regard to Jack's college education expenses and child support payments. The parties agreed to contribute to Jack's college education expenses, after deducting all loans, grants, scholarships and Jack's personal assets, in accordance with their respective abilities to pay at the time Jack enters college.
In Fall 2003, Jack enrolled as a freshman at the University of Delaware, a four-year, two-semester accredited university. In Winter 2004, Jack transferred to the Digital Media Arts College (DMAC), a non-accredited, year-round school in Boca Raton, Florida.
Mother filed a post-judgment motion seeking reimbursement of certain college education expenses incurred by Jack. In support of Mother's motion, her attorney, Susan Roberts, filed a certification, alleging facts that were not within the lawyer's personal knowledge. Father opposed the motion and filed a cross-motion, seeking various relief, including, a modification of his child support obligation and resolution of past and future college contributions. Mother submitted a certification adopting her attorney's certification, "to the best of [her] knowledge."
The judge heard oral argument and issued two orders. In one order, the judge denied Mother's motion without prejudice, reasoning that: 1) the certification was faulty; 2) Mother had not provided any itemized bills to Father prior to the filing of the motion; and 3) never provided itemized bills to the court. In the second order, the judge denied Father's motion with prejudice on some requests and without prejudice as to others. The judge deferred to order Mother to pay Father's counsel fees, until the conclusion of litigation.
On appeal, Father contends that the trial judge erred in failing to disqualify Roberts pursuant to Rules of Professional Conduct (RPC) 3.7, due to her violation of R. 1:6-6, because Roberts's certification has irreparably tainted the proceedings, and the judge must make him whole by awarding him counsel fees. He also contends that Roberts should be disqualified and that Mother's motion "should have been dismissed outright due to these transgressions." We disagree. Moreover, the issue is now moot, because Mother terminated Roberts and hired a new attorney, and further, her motion was denied.
Unlike the federal constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. Compare U.S. Const. art. 3, sec. 2, cl. 1, with N.J. Const. art. 6, sec. 1, par. 1; State v. Gartland, 149 N.J. 456, 464 (1997). However, reviewing courts usually will not exercise its jurisdiction or render abstract advisory opinions. Gartland, 149 N.J. at 464; see Zirger v. General Accident Ins. Co., 144 N.J. 327, 330 (1996)("Ordinarily, our interest in preserving judicial resources dictates that we not attempt to resolve legal issues in the abstract.") The issue in this case, however, is not an issue that is "of significant public importance and is capable of repetition." Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998).
Father argues on appeal that the judge abused his discretion by failing to award him counsel fees and costs. Specifically, he argues that he would not have incurred legal fees, but for Mother's faulty motion, and hence, he was entitled to "be made whole." However, the decision to award counsel fees is within the sound of the trial judge. R. 5:3-5(c); R. 4:42-9(a)(1); Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001); Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). This includes a judge's determination either to deny counsel fees altogether or to defer the award of counsel fees until the conclusion of litigation. The judge considers whether: "(1) the party requesting the award [is] in financial need; (2) the party against whom the award is to be assessed [has] the financial ability to pay;" and (3) where the first two factors have been established, the good faith or bad faith of either party in instituting or defending the action. Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999); Williams v. Williams, 59 N.J. 229, 233 (1971).
In this case, the litigation is not over. Moreover, we perceive no abuse of discretion here; we will not reverse the interlocutory denial of counsel fees. The judge deferred an award of counsel fees, reasoning that counsel fees can be assessed later on, after the ...