October 21, 2009
LINDA SELLITTI, PLAINTIFF-APPELLANT,
PATRICK F. SELLITTI, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 6, 2009
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 counsel fees by the Court; H has failed to pay this fee. (6) W's attorneys have received approximately $53,000 and are still owned almost $20,000. (8) [sic] W has incurred substantial fees to enforce existing orders and compel discovery.
12. It appears that neither party is in any financial position to pay counsel fees. H has certified that he is in arrears in excess of over $40,000 for alimony. H is in debt and is currently unemployed. W was forced to move to Staten Island to receive the support of her parents while she works earning minimum wage. H filed for bankruptcy. He has no assets and no current income. The marital home was lost in foreclosure. H has been making repetitive and unnecessary motions.
Finally, as to the good faith of the parties, the judge concluded:
8. There have been 37 pendente lite and post-trial denials of H's applications for various requests for relief. H has been found in violation of litigant's right for failure to pay court ordered support and maintenance obligations approximately 18 times. A civil restraint was entered by consent to resolve W's claims of domestic violence on October 15, 2005.
These motions have been brought primarily in bad faith. At trial, the only issue where H obtained some relief was a credit of $75 per week in his favor for the combined alimony and child support from the pendente lite support. See, Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995). W has continually, in good faith, filed motions to enforce her rights to support.
15. H had his counsel fees to Marguerite Maggs discharged in bankruptcy. Each motion he made caused W to incur additional fees. Since the marital home was being lost in foreclosure, W rightfully sought and was granted removal of the children to nearby Staten Island, initially to reside with her parents. H repeatedly and without any success continued to dispute this ruling. H claimed he couldn't work, but when W subpoenaed the union records, H had not registered with the union for at least one year and during that year never sought work at the union hall. H repeatedly without success sought to dissipate the marital asset of his pension to pay his rent. These requests for relief were consistently denied. H filed at least 26 requests for relief, all of which were denied and all of which caused W to incur counsel fees. At least 18 findings were made that H, during the course of this litigation, violated W's rights as a litigant. These actions of H can hardly be found as "good faith" claims, but ordering him to pay counsel fees is a futile gesture in view of the substantial arrears for spousal support. Whatever meager financial resources that H can accumulate should be paid for spousal and child support.
As noted, counsel fees may be awarded in family actions pursuant to Rule 5:3-5(c). R. 4:42-9(a)(1). Our review of fee applications, is governed by a standard of a clear abuse of discretion. Englewood v. Exxon Mobile Corp., 406 N.J. Super. 110, 123 (App. Div.), certif. denied, 199 N.J. 515 (2009). A relevant factor to be considered by the motion judge on an application for counsel fees is whether a litigant has acted in "bad faith."
Critical to a consideration of bad faith is the recognition that an award of fees against a "bad faith" litigant is not a sanction, see Darmanin v Darmanin, 224 N.J. Super. 427, 430 (App. Div. 1988), or punitive, see Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999), but reflects the additional and unnecessary costs imposed on the innocent party. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000); Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992); see also Welch v. Welch, 401 N.J. Super. 438, 448 (Ch. Div. 2008).
Considering the judge's specific findings of bad faith and defendant's use of motion practice to unduly burden plaintiff, the "bad faith" factor is particularly compelling. Here, defendant is either unemployed or minimally employed and representing himself. His "cost" of prosecuting frivolous motions is minimal compared to the relative cost, both real and psychic, of defending these applications.
While we recognize the judge's altruistic motive for denying counsel fees suggesting that whatever financial resources may be available should be allocated to marital and child support, the impact of such a determination is contraindicated. The denial of fees here enables the frivolity rather than stemming its tide and does little to foster payments to plaintiff or the children. Defendant is in significant arrears on all of his court-ordered obligations; we are skeptical that the denial of counsel fees will alter that conduct.
We do not deem the award of counsel fees here to be a "futile gesture." Ultimate payment may never be accomplished; however, at the least, there must be a recognition that defendant's conduct has a cost attached to it. We reverse the denial of fees and remand for further consideration of fees consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
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