Regarding Bob's comment and the appearance fee: Rule 5:4-3(a) provides "Except as otherwise provided by paragraph (b) hereof or by any other rule or statute, a defendant in a family action shall file an answer in accordance with R. 4:5-3
or a general appearance and, without filing an answer, be heard on issues of custody of children, parenting time or visitation, alimony, child support, equitable distribution, counsel fees and other issues incidental to the proceeding. A defendant may also file an acknowledgment of service in accordance with R. 4:4-6." Rule 5:3-4(b) states "(b) Appearances.
Where no answer is filed, attorneys representing any party to a proceeding shall e
nter their appearances promptly with the clerk of the court and, insofar as practicable, shall notify the clerk of the length of time it is anticipated the hearing or trial will take. In summary actions the attorneys, no later than 5 days prior to the date set for the hearing or trial, shall notify the clerk as to whether the matter is contested or uncontested. The parties and their counsel shall be afforded a reasonable time in which to prepare for the hearing or trial in all matters."
Obviously, the rules state you file either the answer or an appearance; you cannot be charged for both.
I think the real issue is that there are very few rules that address the unique nature of our post-judgment litigation. The obvious reason is because post judgment litigation is not a new matter; it is the continuation of a prior matter. The filing of a post judgment motion by new counsel within 45 days of the entry of the JOD should require the filing of a substitution of attorney and the motion fee. After 45 days, there is no attorney of record; there is no substitution required; the filing of the motion should suffice. Otherwise, under the current interpretation (after 45 days an appearance must be filed and paid for) should also apply to the divorce attorney who files a post judgment modification application 5 years down the line.
I wonder if a new attorney files for post conviction relief in a criminal matter, does that new attorney have to file and pay for a substitution of attorney as well as a motion filing fee if the motion is filed within 45 days? Or, does that new attorney have to file and pay for a notice of appearance as well as a motion filing fee if the motion is filed after the 45 days?
Answers, anyone?