Restraining Order Opinion and Counsel Fees

R.T. v. Z.S.

Docket No. A-3738-18T3

Decided June 23, 2020

Submitted by the New Jersey Domestic Violence Law Firm, Hark and Hark.

In a recent unpublished decision the Appellate Division reviewed a trial judge’s decision to award counsel fees to a defendant after a plaintiff failed to obtain a Final Restraining Order (FRO).

In R.T., The parties dated for five years. During the last two years of their relationship, both parties filed multiple complaints alleging acts of domestic violence against each other, many of which were found to be meritless and dismissed. On July 24, 2018, plaintiff filed his fourth domestic violence complaint against defendant alleging three predicate acts under N.J.S.A. 2C:25- 19, to wit: harassment, N.J.S.A. 2C:33-4; stalking, N.J.S.A. 2C:12-10; and criminal mischief, N.J.S.A. 2C:17-3. Plaintiff obtained a temporary restraining order (TRO) against defendant, with a return date of September 11, 2018 for the FRO hearing.

After considering the testimony from both parties and defendant’s witnesses, the Family Part judge issued an oral decision in which he dismissed plaintiff’s complaint and vacated the TRO against defendant as a matter of 3 A-3738-18T3 credibility. In the judge’s own words: “frankly . . . I don’t find [plaintiff] to be credible.”

On October 24, 2018, defendant’s counsel filed a certification in support of an application for attorney’s fees pursuant to Rule 5:3-5. In an order dated November 16, 2018, the Family Part judge awarded defendant $2800 in counsel fees without opposition from plaintiff.  Plaintiff filed for reconsideration, and the motion was denied, as the trial judge found that he had the ability to award fees, even without a finding of bad faith. Plaintiff appealed.

The Appellate Division reversed, ruling that in order for a prevailing defendant to be awarded counsel fees after a Final Restraining Order (FRO) hearing, there must be a finding of bad faith, or frivolous application on account of the Plaintiff.

If you are involved in domestic violence, either as a plaintiff or defendant, an award of counsel fees is a common issue. If the plaintiff prevails in a domestic violence action, the plaintiff make seek reasonable fees from the defendant as a result of the domestic violence.  However, as found above, the only way a defendant can get attorney’s fees from a plaintiff is if the plaintiff files a frivolous Temporary Restraining Order (TRO) against the defendant and attempts to seek a Final Restraining Order (FRO) as well.  If you are in this situation make sure you hire an experienced family lawyer to ensure you are adequately represented in an FRO hearing.

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Stay safe.

Michael J. Collis, Esquire

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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