Morrison v. MorrisonMorrison v. Morrison
Pеnding the wife‘s contested suit for separate maintenance and immediately prior to the day fixed for the final hearing of the cause a reconciliation wаs effected, partly through the efforts of the wife‘s solicitor. He now applies for the allowance of costs and counsel fee against the defendant husband and (incidentally) for an order dismissing the bill.
The motion to dismiss is not opposed, and will be granted. The cause of action having ceased to exist because of the rеconciliation, the suit has been terminated. Byrne v. Byrne, 93 N.J. Eq. 5; Wilson v. Wilson, 14 N.J. Mis. R. 33, 47.
The services which have been rendered by the wife‘s solicitor entitle him, in my judgment, to a counsel fee of $100 besides costs, in addition to the pendente lite allowance heretofore paid. The circumstances warrant the imposition of these amounts as a charge upon the husband. The apрlication is timely. See Lief v. Lief, 14 N.J. Mis. R. 27, 29.
The defendant resists the application on the ground that
The authorities cited by the learned viсe-chancellor in support of the portion of his opinion above quoted go to the extent only of holding that reconciliation puts an end to the litigatiоn so far as the rights and interests of the parties are concerned. None of them involved the application of the wife‘s solicitor for payment for his serviсes, and I know of no precedent, other than the Kuntz Case itself, which holds that the reconciliation of the parties can defeat her solicitor‘s claim for comрensation. Evidently, the attention of the court in the Kuntz Case was not directed to two earlier decisions in this court bearing upon the solicitor‘s right to payment as distinguished from the rights оf the parties toward each other. One of these cases is reported (without naming the parties) in 9 N.J.L.J. 274 (July 12th 1886). There the wife filed a bill for separate maintenancе, charging that she had been driven from the matrimonial home by her husband. He filed a verified answer alleging that he was ready to take his wife
The other case, not cited in the Kuntz decision is Conlin v. Conlin (1888), 11 N.J.L.J. 174. There the chancellor in a separate maintenance suit awarded maintenance to the wife by final decree, including costs and counsel fee as against the defendant. After entry of decree reconciliation was effected. The wife agreed with her husband to abandon her claim for alimony and verbally released him from payment of costs and counsel fee. Thereafter he again abandoned his wife, whereupon application was made to adjudge him in cоntempt for failure to pay the maintenance allowance, costs and counsel fee as adjudged in the decree. The court held that by the reconсiliation the wife relinquished her right to maintenance installments under the decree and therefore must commence a new suit for that purpose, but that the provision for payment of counsel fee was for the benefit of the solicitor and could not be discharged by any agreement which the wife might make with her husband.
Very recently in this cоurt Advisory Master Grosman pointed out that costs and counsel fees, while allowed in right of the litigant, are payable to the solicitor, and that an unpaid solicitor is а proper party in his own right to an action in this court entitling him to petition the chancellor for relief in respect to compensation. Flavell v. Flavell, 15 N.J. Mis. R. 167.
Any fear that the allоwance of costs and counsel fee might tend to disrupt the reconciliation is not, in my judgment, well founded in fact. If the reconciliation be so insincere and impermаnent as to be jeopardized by so trivial a cause it is at best unworthy of consideration, and it may well be a
In the case at bar the wife‘s solicitor in good faith instituted and pressed the suit in her behalf. She has not, and never has had, the means to compensate him. He has acted from the first upon the knowledge that his compеnsation must come from the husband. As solicitor for the wife he has done his work well. He has gone further and has aided in bringing about a reconciliation. In this respect he has аcted in the interest of society and the public policy. Is he to be penalized for doing so, by being denied a fee honestly earned? In matrimonial cases we regard the wife as the favored suitor, and call upon the husband to pay her suit moneys; otherwise in many cases the wife would be powerless to assert her legal rights agаinst him. We encourage reputable counsel to represent wives in meritorious cases, upon the implied assurance that they will be compensated for the reasonable value of their services through orders against the husbands. We also applaud and encourage their efforts, as officers of the court, to еffect reconciliations where possible. Unless all this is mere platitude, how can we penalize them for doing what we preach to them is their duty? If we do so, how can we expect counsel to be willing to undertake a destitute wife‘s case against her husband, no matter how meritorious? Public policy requires that lack of meаns shall not deprive the wife of the services of a competent solicitor, and it follows that it is contrary to public policy to deny reasonable compensation to such solicitor in proper cases to be paid by the husband; a fortiori, where the suit has abated by reconciliation due to efforts of the wife‘s solicitor. It is true that the cause of action no
The order of dismissal will provide for the payment by the defendant to the wife‘s solicitor of a counsel fee of $100, and costs to be taxed.
(NOTE — The chancellor has authorized me to state that he approves and concurs in this opinion.)