In a Decision – Meshulam v Meshulam - (an "Unreported Decision") >>
the Court Held:
Although we conclude that plaintiff engaged in bad faith motion practice, we do not agree with the trial court's view that the sole issue to be explored at the plenary hearing was plaintiff's alleged fraudulent concealment of her income. Plaintiff was entitled to raise the issue of whether defendant concealed or understated his income in advance of the PSA. . . . In assessing the parties' respective positions, the trial court should have considered whether defendant engaged in bad faith litigation of his own. . . . We leave it to the trial court, in the exercise of its discretion, to weigh these additional factors in determining whether to reduce the award of fees to defendant, and the amount of such reduction.
A party requesting fees must have acted in good faith in the litigation and have a financial need, and the party paying fees must be able to pay. Id. at 493. To assess financial need and ability to pay, the court requires current financial information. See Roberts v. Roberts, 388 N.J. Super. 442, 453 (Ch. Div. 2006).
However, "'where one party acts in bad faith, the relative economic position of the parties has little relevance' because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party." Yueh, supra, 329 N.J. Super. at 461 (quoting Kelly, supra, 262 N.J. Super. at 307). Bad faith may consist of a party's "constant disregard . . . of court orders and discovery rules," id. at 460; the use of motion practice as a form of intimidation, see Kozak v. Kozak, 280 N.J. Super. 272, 275-76, 279-80 (Ch. Div. 1994), 18 A-5751-13T2 certif. denied, 151 N.J. 73 (1997); "[t]he intentional misrepresentation of facts," Borzillo v. Borzillo, 259 N.J. Super. 286, 294 (Ch. Div. 1992); or unnecessarily prolonging litigation, Marx v. Marx, 265 N.J. Super. 418, 429 (Ch. Div. 1993).