ASSEMBLY, No. 71
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblyman KAVANAUGH and Assemblywoman CRECCO
An Act concerning frivolous lawsuits and amending P.L.1988, c.46.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1988, c.46 (C.2A:15-59.1) is amended to read as follows:
1. a. (1) A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings,[or] upon judgment or following the judgment that a complaint, counterclaim, cross-claim, [or] defense, motion or cross-motion of the nonprevailing person was frivolous.
(2) When a public entity is required or authorized by law to provide for the defense of apresent or former employee, the public entity may be awarded all reasonable litigation costs and reasonable attorney's fees if the individual for whom defense was provided is the prevailing party in a civil action, and if there is a judicial determination at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim, or defense of the nonprevailing party was frivolous.
b. In order to find that a complaint, counterclaim, cross-claim, [or] defense, motion or cross-motion of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:
(1) The complaint, counterclaim, cross-claim, [or] defense, motion or cross-motion was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or
(2) The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim, [or] defense, motion or cross-motion was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
c. A party or public entity seeking an award under this section shall make application to the court which heard the matter. The application shall be supported by an affidavit stating in detail:
(1) The nature of the services rendered, the responsibility assumed, the results obtained, the amount of time spent by the attorney, any particular novelty or difficulty, the time spent and services rendered by secretaries and staff, other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, an itemization of the disbursements for which reimbursement is sought, and any other factors relevant in evaluating fees and costs; and
(2) How much has been paid to the attorney and what provision, if any, has been made for the payment of these fees in the future.
(cf: P.L.1995, c.13, s.1)
2. This act shall take effect immediately.
STATEMENT
This bill would allow judges to impose sanctions against parties who file frivolous family court motions.
Currently, a substantial amount of family court time and litigation costs are expended on matrimonial motions, many of which are without merit. The parties who defend themselves against such motions must incur the expense of hiring attorneys, and the courts' strained resources are wasted, yet there is little recourse against litigants who file such pleadings in bad faith, with no hope of winning but with the sole intent of harassing the other party.
Under current law, the "frivolous lawsuit" statute, N.J.S.A.2A:15-59.1, allows a prevailing party in a civil action to recover attorney fees and costs from the nonprevailing party when the judge determines that a complaint, counterclaim, cross-claim or defense filed by the nonprevailing party was frivolous.
However, the New Jersey Supreme Court, in McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 562 (1993) and Lewis v. Lewis, 132 N.J. 541, 545 (1993), held that by the terms of N.J.S.A.2A:15-59.1, the statute does not apply to motions. In Lewis v. Lewis, which involved post-judgment matrimonial motions, the family court awarded attorney fees to Joanne Lewis because it determined that a motion by her ex-husband to reduce his payment of alimony arrearages was frivolous under the standards set by N.J.S.A.2A:15-59.1. However, the attorney fee award was overturned by the New Jersey Supreme Court on the grounds that the statute only covers a frivolous "complaint, counterclaim, cross-claim or defense," and not a frivolous motion.
This bill would expand the statute to also allow recovery of attorney fees and court costs for a party who is forced to litigate against a frivolous motion or cross-motion.
The bill embodies Recommendation 14 of the report of the Commission to Study the Law of Divorce, issued April 18, 1995.
Expands frivolous lawsuit statute to allow recovery for frivolous motions in family court.