On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-543-06B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Plaintiff Linda Sellitti appeals from a December 16, 2008 order of the Family Part denying her application for counsel fees against her former husband, defendant Patrick Sellitti. Although the motion judge found that the actions of defendant "can hardly be found as 'good faith,'" he, nevertheless concluded that "ordering him to pay counsel fees is a futile gesture" and denied the application. We now reverse and remand for a hearing. We conclude that while ability to pay is a factor to be considered in the award of counsel fees, here, it was afforded too much weight in the counsel fee analysis.
We need not restate the history of this extensive matrimonial litigation and briefly set forth the facts relevant to the counsel fee application. The parties were married on August 6, 1996 and two children, now twelve and nine, were born of the marriage. On October 11, 2005, plaintiff filed a complaint for divorce. While the matter was awaiting trial, defendant filed numerous, repetitive motions that were, in good measure, denied. During that same period, defendant was found in violation of litigant's rights approximately eighteen times.
Judgment for divorce was entered on August 19, 2008, and plaintiff was invited to apply for counsel fees. She did so, and by order of December 16, 2008, the judge denied the application.
In his statement of reasons, the judge correctly stated the basic principles that apply on applications for fees:
2. R. 4:42-9(a)(1) permits the Court, in its discretion, in a family action to make an allowance for counsel fees. Under R. 4:42-9(b), an application for counsel fees must be supported by an affidavit of services which addresses the factors enumerated by RPC 1.5(a). In considering whether to award counsel fees in a family action, the Court must consider the following factors: (1) The party requesting the award must be in financial need; (2) The party against whom the award is to be assessed must have the financial ability to pay; (3) Where the first two factors have been established, the good faith of the party seeking counsel fees in instituting or defending the action. Williams v. Williams[,] 59 N.J. 229, 233 (1971).
3. It should be noted that R. 4:42-9(a)(1) refers to R. 5:3-5(c) for guidance in determining the amount of the fee award. Those factors are: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own counsel fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which the fees were incurred to enforce existing orders; and (9) any other factor bearing on the issue of fairness of the award.
4. Fees in family actions are normally awarded to permit parties with unequal financial positions to litigate (in good faith) on an equal footing. Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992). Fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees. Id. Where both parties litigate in good faith, fees will not be awarded unless the parties' economic positions are disparate; the parties are required to provide financial information to the court to determine whether or not a party is in need. The party's economic status is irrelevant where a party acts in bad faith.
After identifying the legal principles, the judge found that plaintiff had retained counsel and paid over $53,000 of approximately $73,000 in incurred fees, primarily through the assistance of her father. During the marriage, plaintiff was a "stay at home mother" with no income and has recently obtained part-time minimum wage employment, while defendant, who is employable, has neither worked (or worked minimally) nor provided support.
The judge made specific findings as to the Rule 5:3-5(c) factors and said:
11. Applying the factors of R. 5:3-5(c) here: (1) W has no formal education beyond high school and no experience or training. She currently works at a minimum wage job. This Court at trial found that H has an actual earning capacity of $57,000 per year as an electrician. (2) W's parents currently pay attorney fees. W claims that she is obligated to pay them back. W currently earns minimum wage at her job. H has certified that he is no longer employed. (3) H has filed many repetitive motions, most of which have been denied by the Court. H has been found to be in violation of litigant's rights almost 20 times. H has failed to pendente lite alimony and maintenance payments, and is in arrears for alimony. (4) H has been representing himself since 2006. W has incurred more than $70,000 in attorney's fees, of which she and her parents have paid approximately $53,000. (5) W was previously awarded $2,830 pendente lite ...