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DOCKET NO. A-1408-06T21408-06T2







Submitted October 30, 2007 - Decided

Before Judges Skillman and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-613-94.

Shirley Goodheart, appellant pro se.

Respondent did not file a brief.


Plaintiff Shirley Goodheart and defendant Ramesh Acharya were divorced by final judgment on December 16, 1996. Plaintiff appeals from paragraph three of a July 19, 2006 post-judgment order that requires her to pay defendant's counsel fees of $13,430. She also appeals from a September 22, 2006 order denying her motion for reconsideration. We reverse.

In 2005, plaintiff filed a motion for child care and summer camp expenses for the parties' two children. Defendant did not oppose the motion and on May 4, 2005, the court ordered him to pay her $9000 for daycare and $2000 for summer camp expenses, and approximately $5000 for her counsel fees. After defendant failed to comply with the court's order, on plaintiff's application, the court issued warrants for defendant's arrest. When he was arrested and appeared in court, he asserted a defense to plaintiff's claims; she owed him over $40,000 as a result of a post-judgment loan he made to her.

Defendant subsequently filed an application challenging the May 2005 order. Following a plenary hearing, the court found that defendant did loan money to plaintiff, who failed to repay it; the judge did not, however, decide how much plaintiff owed to defendant, but deferred that matter to the Law Division. The judge further found that plaintiff was not entitled to reimbursement for, or a credit for, the daycare or other child care expenses that she previously claimed, as she never incurred those expenses. Consequently, the court awarded counsel fees to defendant. Specifically, the judge made the following findings:

On the record before it, the Court cannot find that such conduct of the plaintiff, Ms. Goodheart, constitutes "fraud." As such, the claim for counsel fees based upon fraudulent conduct of the plaintiff, Ms. Goodheart, is denied.

That stated, R. 4:42-9(a)(1) allows a Court, in its discretion, to make an award of counsel fees in a Family action. When exercising its discretion, the Court is obliged to consider several factors, not only the good faith or bad faith of the parties. Williams v. Williams, 59 N.J. 229 (1971), as modified by N.J.S.A. 2A:34-23; Kothari v. Kothari, 255 N.J. Super. 500 (App. Div. 1992). . . . [T]he Court finds that while the plaintiff, Shirley Goodheart, did not engage in fraudulent conduct in seeking her relief by way of payment of day care expenses and summer camp expenses from the defendant . . . the relief she sought was either in complete disregard of the fact that she had not incurred such expense or a baseless belief that she was entitled to same based upon some inequity foisted upon her at the time she entered into the Judgment of Divorce. Neither of the above provides justification herein. While it is without doubt that Mr. Acharya could have and should have responded to the motion in 2005, there clearly became a point in time after Mr. Acharya retained counsel and through that counsel's efforts, that Ms. Goodheart knew or should have known her claim to reimbursement was demonstrably without basis in fact or in law.

Nonetheless, she continued to pursue her claims which caused the incurrence of counsel fees by the defendant . . . related to discovery and to the hearing. The Court provided the plaintiff with ample opportunity to produce evidence of the incurrence of day care expenses and summer camp expenses. Ms. Goodheart could not and did not present such evidence either prior to or during the Plenary Hearing. As a direct and proximate result, defendant . . . incurred counsel fees that were unnecessary and unwarranted. As such, Mr. Acharya is entitled to an award of counsel fees which were incurred from the date of his motion in January of 2006 up to and including the date of the Court's decision on the record providing him with the relief for which he sought. In reaching this determination, the Court has considered the quantum of the fees to be awarded by application of R. 5:3-(c) and the factors set forth therein, as well as R. 4:42-9.

In actions in the Family Part, the court may make an allowance of counsel fees to any party, subject to the provisions of Rule 4:42-9(b), (c) and (d). R. 5:3-5(c). In determining the amount of fees,

the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own 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 fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[Ibid.; see also Williams v. Williams, 59 N.J. 229, 233 (1971) (listing factors to be considered in family actions when awarding counsel fees); N.J.S.A. 2A:34-23 (in awarding counsel fees in Family action, court shall consider factors established by court rule, the financial circumstances of the parties, and the parties' good or bad faith).]

Here, though the trial judge discussed plaintiff's bad faith, he made no findings as to the parties' financial circumstances, their ability to pay their own fees or contribute to the fees of the other parties, or the extent of the fees incurred or any fees previously awarded.

The counsel fee award of $13,430 is substantial. Given the size of the award, and the failure of the court to engage in a complete analysis of the factors required by Rule 5:3-5(c), we vacate the counsel fee award and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.





November 19, 2007