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  • 1.  Counsel fees awarded to enforce

    Posted 07-20-2016 09:57 AM

    I recall seeing a case recently where the court awarded counsel fee on an enforcement matter stating that it didn't need to perform a R. 5:3-5 or R.4:42-9, etc. analysis because the parties' agreement said that fees would be paid in the event of an enforcement application.  Can someone tell me what the case was?  

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    Carolyn Daly Esq.
    Morristown NJ
    (973)292-9222
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  • 2.  RE: Counsel fees awarded to enforce

    Posted 07-20-2016 10:41 AM
    Carylon -

    See below from recent letter brief. BTW, I always speak in terms of "reimbursement" to underline that the requested counsel fee award is making the client whole, it's not anything "extra."

    I've been told that this guarentee of fees on wilfull default isn't iron-clad -- many judges will not enforce.

    The issue of fees being awarded generally, and specifically on willful default, was recently discussed on another Family Law list I'm on. I think there's general consensus that the courts arent' awarding fees as quickly as they should in these cases. Maybe we should look at a rule change? (Although both the statute and rule are pretty strongly worded as it is...)

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
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    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

       I.<x-tab>   </x-tab>PLAINTIFF SHOULD BE ORDERED TO REIMBURSE DEFENDANT FOR THE COUNSEL FEES AND COSTS INCURRED IN ENFORCING THE COURT'S ORDER.
    <x-tab>        </x-tab>The facts relevant to a counsel fee award are uncontested and the law is well settled.  Although she is employed, she chose not to comply with the current child support order in spite of having the ability to do so. Plaintiff should be ordered to reimburse the counsel fees and costs defendant incurred in bringing this matter before the Court.
    <x-tab>        </x-tab>The law is clear that no party should have to incur counsel fees to enforce a court order.  When a party is found to be in violation of a court order, a presumption exists that he or she will be responsible for the reasonable counsel fees and costs incurred by the non-defaulting party.  See, e.g., R. 1:10-3 and commentary thereto, Kelly v. Kelly, 262 N.J. Super. 303 (Ch.Div. 1992); Williams v. Williams, 59 N.J. 229 (1971); Chestone v. Chestone, 322 N.J.Super. 250 (App. Div. 1999).

    <x-tab>        </x-tab>The legislature has made a specific provision for a counsel fees award when, as here, the enforcement issue concerns child support:

    If a party in any action to enforce and collect child support ordered by a court pursuant to the provisions of N.J.S.A. 2A:34-23 has incurred counsel fees, the court shall require the defaulting party to pay those counsel fees unless the court finds that the default was substantially justified or that other circumstances make an award of counsel fees unjust.  N.J.S.A. 2A:34-23a

    <x-tab>        </x-tab>Additionally, here the parties entered into an agreement that specifically provides for an award of fees in the event of a default (using the mandatory language "shall"). Contracts which permit the aggrieved party to recover fixed or reasonable attorney's fees as part of his or her damages are enforceable unless some larger public policy mandates a contrary result. Center Grove Assocs. v. Hoerr, 146 N.J.Super. 472, 474, (App.Div.1977). A claim for attorney's fees pursuant to a contractual agreement is not an award of fees under the otherwise applicable court rules (R. 4:42-9 nor R. 1:10-3). Jennings v. Cutler, 288 N.J.Super. 553, 567, (App.Div.1996). When a court enforces an agreement and awards the actual, reasonable, and necessary expenses of the aggrieved party in maintaining the action as part of his or her general damages, the court is merely adjudicating damages for breach of contract. Id. at 215.< ody="">



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  • 3.  RE: Counsel fees awarded to enforce

    Posted 07-20-2016 03:34 PM

    While an allowance for attorney's fees and costs remains discretionary, Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004), the court must nevertheless consider the factors listed in R. 5:3-5 (c) in making the award. Note that the factor of reasonableness and good faith should be evaluated in the light of both trial and pretrial conduct. See Fall & Romanowski, Current N.J. Family Law, Relationships Involving Children (GANN), Chapter 40.  

    Because this paragraph of the rule incorporates R. 4:42-9(b), (c), and (d)(1), the history, interpretation and construction of that rule remains relevant to family action fee allowance. Thus the affidavit requirements of R. 4:42-9(b) are fully applicable. See Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002). 

    The rule also makes it clear that, if "deemed just," an award of attorney's fees may be made in favor of any party, whether or not prevailing. See, e.g., Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002). Where both parties have financial means the court should enforce the provision of their prenuptial agreement requiring each to pay his or her own attorney's fees in the event of future matrimonial litigation. Strahan v. Strahan, 402 N.J. Super. 298, 316-318 (App. Div. 2008). See also Barr v. Barr, 418 N.J. Super. 18, 47 (App. Div. 2011) (remanding fee award when trial judge failed to take into consideration ex-wife's ability to pay her own attorney's fees).

    1. 4:42-9 (b) Affidavit of Service. Except in tax and mortgage foreclosure actions, all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a). The involvement of this ethics Rule, IMO, should preclude a contractual workaround.

    RPC 1.5 Fees (a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent.

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    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585

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