Since the former decision in this case there have been decisions of the lower courts to the effect that there is a vested right to past due installments for maintenance. ( Hatch v. Hatch, 15 N.J. Misc. 461; 192 A. 241; Poeter v. Poeter, 15 N.J. Misc. 691; 194 A. 792; Flavell v. Flavell, 15 N.J. Misc. 167; 189 A. 639; Stewart v. White, 15 N.J. Misc. 542; 192 A. 839.) These decisions, while not compelling, "must be deemed persuasive."
Our cases recognize that while counsel fees and costs are awarded to the litigant, they properly "belong" to counsel and the allowances are to be held in trust for the attorneys who furnished the services. Kristeller v. First Nat. Bank, 119 N.J.L. 570 (E. A. 1938); Teaneck Township v. Mercer, 122 N.J.L. 546 (Sup.Ct. 1939), aff'd, 124 N.J.L. 120 (E. A. 1940); Klein v. Journal Square BankBldg. Co., 114 N.J. Eq. 510 (Ch. 1933); Columbia Ins. Co. v.Artale, 112 N.J. Eq. 505, aff'd, 114 N.J. Eq. 268 (E. A. 1933); Flavell v. Flavell, 15 N.J. Misc. 167 (Ch. 1937). Thus, the attorney is a party in interest to that extent.
Since the former decision in this case there have been decisions of the lower courts to the effect that there is a vested right to past due installments for maintenance. ( Hatch v. Hatch, 15 N.J. Misc. 461; 192 A. 241; Poeter v. Poeter, 15 N.J. Misc. 691; 194 A. 792; Flavell v. Flavell, 15 N.J. Misc. 167; 189 A. 639; Stewart v. White, 15 N.J. Misc. 542; 192 A. 839.) These decisions, while not compelling, `must be deemed persuasive.'
Returning to the source rule above, it is immediately observed that reference is made to payment to a "party." However, since 1937, in the matter of Flavell v. Flavell, 15 N.J. Misc. 167 (Ch. 1937), the interpretation of the denomination "party", in the limited context of a counsel fee application, has been stated to mean "attorney," for all practical purposes. The respondent's argument . . . that in respect to costs and counsel fees, he is accorded no standing in law because these items are payable not to the solicitor but to his client.
The cases and authorities relied on by appellant do not support its position. Flavell v. Flavell, 15 N.J. Misc. 167, 187 A. 639 (Ch. 1937), was decided before our present rules and our present views as to allowances by courts for counsel fees. As held in Cole v. Cole, 30 N.J. Super. 276 (Ch.Div. 1954), the authority previously vested in the Court of Chancery for granting of counsel fees in causes generally has been superseded.
The purpose of alimony is thus clearly and only the satiation of demonstrated need of support. See Lynde v. Lynde, 64 N.J. Eq. 736 ( E. A. 1902); Flavell v. Flavell, 15 N.J. Misc. 167, 189 A. 639 ( Ch. 1937); O'Hara v. O'Hara, 137 N.J. Eq. 369 ( E. A. 1945); Curley v. Curley, 37 N.J. Super. 351 ( App. Div. 1955); Herr, Marriage, Divorce and Separation (1938), ยง 372, p. 274; ยง 375, p. 481; 2 Nelson, Divorce and Annulment (1961 rev.), ยง 14.08, p. 13; Keezer, Marriage and Divorce (3 d ed.), ยง 576, p. 618. The record is clear that plaintiff did not need the alimony in the sum of $675 retained by her attorney.
Although there is some confusion in the language of the cases as to whether counsel fee and costs should be awarded to or belong to the attorney or the client (see Eufemiov. McKeown, 10 N.J. Misc. 549, 159 A. 796 ( Ch. Div. 1932); Flavell v. Flavell, 15 N.J. Misc. 167 ( Ch. Div. 1937); Armour v. Armour, 138 N.J. Eq. 145, 162 ( E. A. 1946); Merewood, Inc. v. Denshaw, 142 N.J. Eq. 138 ( Ch. Div. 1948); Lane v. Rushmore, 125 N.J. Eq. 310, 314 ( E. A. 1938); Columbia Ins. Co. v. Artale, 112 N.J. Eq. 505 ( Ch. 1933)), it seems clear that, at least, where the attorney has been paid a fee and costs by or on behalf of his client, the basic purpose of allowing costs and counsel fees is to reimburse or indemnify the client for some of the expenses of the litigation. In re Katz, 40 N.J. Super. 103, 106 ( Ch. Div. 1956).
As already indicated hereinabove the allowance of a counsel fee to Mr. Lane was in fact an adjudication that he acted in good faith and that his services merited reward. In Flavell v. Flavell, 189 A. 639, 640, 15 N.J.Misc. 167, we said: "The respondent's argument in support of her first contention is that the petitioner, in his capacity as solicitor, is obviously not a party to the suit in the same sense as the complainant or defendant; that, in respect to costs and counsel fees, he is accorded no standing by law because these items are payable not to the solicitor but to his client. Not so.
Annotation, 93 A.L.R. 689 and cases cited; 5 Am.Jur. 396, ยง 224. Since the Attorneys' Lien Act is not applicable, petitioners having neither instituted an action at law or in equity nor filed a counterclaim at law, the many cases cited by petitioners, including Grimm v. Franklin, 102 N.J.Eq. 198, 140 A. 236; Artale v. Columbia Insurance Company, 109 N.J.L. 463, 162 A. 585, and Flavell v. Flavell, 189 A. 639, 15 N.J.Misc. 167, likewise have no application; and petitioner's remedy, as suggested in McCarthy v. McCarthy, supra, is by suit. The application will be denied.
"the answer must be found in section 25 of the Divorce Act and the construction to be given to that section." And I note in this decision by Advisory Master Herr that the vested character of accrued "permanent" alimony, that is, alimony provided after a decree of divorce has been recognized by Advisory Master Child in an unreported decision (Spahn v. Spahn [Docket 56-57]), by Advisory Master Campbell in Williams v. Williams, 174 A. 423, 12 N.J.Misc. 641-644, and by Advisory Master Grosman in Flavell v. Flavell, 189 A. 639, 15 N.J.Misc. 167-176. It should be said here that Wilson v. Wilson, 181 A. 257, 14 N.J. Misc. 33, was a maintenance suit brought under section 26 of our Divorce Act (2 Comp. St. 1910, p. 2038), and that what Advisory Master Herr said in deciding that case concerning the inherent power of this court is not pertinent in the consideration of the order I am dealing with, which order was made under section 25 of our Divorce Act.