Before Judges Petrella, Braithwaite and Coburn.
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County.
The main thrust of this appeal, in a post-judgment matrimonial setting, is defendant Jean Yueh's challenge to the award of $131,442.45 in counsel fees to plaintiff Eric Yueh out of his requested fee of $174,319.64. The judge reduced defendant's attorney's request by $42,877.19, the amount the judge attributed to plaintiff's "avoidance of discovery." Nevertheless, the fee awarded is still troublesome not only because of its magnitude, but also because it deals only with post-judgment matters of discovery relating to interpretation and application of short provisions in the parties' Property Settlement Agreement (PSA), which were eventually resolved by summary judgment. Our analysis of the record makes clear that defendant's discovery request was resisted throughout by the plaintiff, resulting in unnecessary and unduly prolonged resolution of relatively simple legal issues.
Defendant's brief on appeal*fn1 argues that the Family Part Judge abused his discretion in assessing counsel fees against her; ignored plaintiff's bad faith; failed to consider plaintiff's ability to pay his own counsel fees; and erred in failing to order a plenary hearing because of fact issues on plaintiff's changed circumstances claim. At oral argument counsel asserted that defendant's position also included a challenge to the reasonableness of the fee award. Defendant's attorney represented that the reason that no opposition papers were submitted in the trial court to challenge the reasonableness of the fees requested was because the judge ordered simultaneous submissions with respect to the issues, including certifications as to counsel fees requested, and directed that no further papers be filed.
Defendant also argues on appeal that the Family Part Judge made no findings of fact and conclusions of law explaining his decision relieving plaintiff of his obligation to maintain medical insurance, pay unreimbursed medical expenses and maintain life insurance for defendant.
The thirty-two-year marriage of the parties ended by divorce on October 30, 1991. Plaintiff was then age fifty-eight. The divorce judgment incorporated a PSA by which plaintiff, former husband, agreed to pay defendant, former wife, $4,333.33 per month in alimony, and specifically provided:
The husband's bona fide retirement (age 62) is a basis for husband's application to modify alimony. If the husband's income from employment and the portion of his pension benefits not subject to distribution is $20,000.00 per year or less, alimony will terminate. Income, defined as salary plus the portion of his pension benefit earned after the filing of the Complaint, above $20,000.00 will be considered by the court on the quantum, if any, of alimony.
Under the PSA, plaintiff was also to pay defendant's medical insurance up to a maximum of $3,000 per year and unreimbursed medical expenses up to $1,000 per year. The PSA provided: "Husband may deduct one-half of monies expended for the insurance premium and unreimbursed medical expenses as alimony."
In 1992, plaintiff remarried. On August 1, 1996, he retired to Florida from his employment with IBM, apparently voluntarily, at age sixty-three. About two weeks thereafter he filed a post-judgment motion to eliminate or modify his alimony obligation and his medical insurance and reimbursement obligation under the PSA. Time records submitted in the trial court by plaintiff's attorney show that discussions between plaintiff and his attorney about the implications of retirement and a post-judgment modification motion started at least as early as January 1996.*fn2
In connection with his modification motion plaintiff certified that his monthly pension benefit was $3,268.50 or $39,222 per year. The difference between the pension plaintiff was entitled to at the time of his divorce and the amount he earned as a result of further service was $1,175.23 per month or $14,102.76 per year. Plaintiff claimed he had no other "income from employment"*fn3 and his "earned income" plus the "excess" pension payment was less than $20,000. Accordingly, he moved to terminate alimony.
In response to plaintiff's motion, defendant cross-moved for an order declaring plaintiff in violation of litigant's rights for failure to comply with the alimony provisions of the PSA, and directing plaintiff to provide copies of his federal and state tax returns for 1994 and 1995. On the return day of the motion, the judge ordered plaintiff to submit to a deposition to determine if he had any additional income. The order stated that if plaintiff had additional income he was to pay defendant's counsel fees, but if it was established that he did not then his ex-wife would pay his attorney's fees. It is unclear why such a provision was necessary when the judge could resolve any fee issues at the appropriate time, and it could serve to chill reasonable inquiry.*fn4 We note that the September 27, 1996 order did not even say "reasonable attorney's fees" although clearly that limitation should be implicit and would apply as a matter of law. The merits of the motion were not addressed and the hearing was adjourned.*fn5
Plaintiff's deposition was taken on October 29, 1996. He avoided or resisted answering many questions. He even filed a motion for a protective order concerning certain documents and information requested concerning the finances of Mary Strain, whom plaintiff had married in 1992, regarding a business plaintiff claimed his new wife owned. Defendant cross-moved to dismiss plaintiff's previous motion to terminate support based on his failure to produce documentation in response to her notice to produce.
The judge ordered that plaintiff's wife supply her 1994 and 1995 tax returns and other court-ordered documents for review in camera.*fn6 The judge also entered three orders on April 30, 1997: (1) he denied, without prejudice, plaintiff's request for a protective order; (2) he directed plaintiff to furnish the court with additional documents in thirteen categories concerning his current wife (Strain); and (3) he appointed Leonard Schwartz as the court's accounting expert to report only to the court by June 30, 1997. A trial date was scheduled for September 1997.
Plaintiff asserted he supplied the documentation to the court. However, defendant asserted the required discovery had not been supplied. Due to plaintiff's failure to provide all of the documentation a conference call with the attorneys and the court-appointed accountant was necessitated. As a result, apparently after requesting briefs, on September 22, 1997, the judge signed an order in which he defined "'salary' as contemplated by the parties" in their PSA (even though neither that term nor "income from employment" were defined therein) as meaning:
"an ongoing employment situation for compensation where monies are received by a person on a fixed and continuous basis, i.e., normally paid in regular periodic intervals in specific regular amounts or as commission."
The judge also directed plaintiff to "fully comply" with his April 30 order requiring production of documents and that plaintiff produce Strain for depositions. In an attached statement to his October 2, 1997 order denying plaintiff's request for a stay of the September 22 order, the judge said that plaintiff claimed in his deposition answers "that he could not produce relevant information requested by the defendant about his finances" and that his wife possessed the information. Plaintiff's application for a stay of the September 22, 1997 order was denied. The judge indicated that Strain's deposition was "necessary to discover whether the Plaintiff is using his current wife as a vehicle for hiding income from domestic and foreign sources."*fn7 Plaintiff's motion for leave to appeal to this court was denied.
Notwithstanding the court's April 30, 1997 order appointing an accounting expert, plaintiff moved on November 19, 1997, for the appointment of an "independent" fact finder (hired by plaintiff) to determine whether plaintiff was employed and drawing a "salary," and to hold defendant in violation of litigant's rights for failure to appear at a scheduled settlement conference for which defendant's attorney had already apologized for a calendaring error. Defendant cross-moved for an order (1) holding plaintiff in violation of litigant's rights for noncompliance with the prior order, and (2) denying plaintiff's original motion to terminate alimony. This resulted in a January 23, 1998 order compelling plaintiff to produce the documents previously ordered and to produce Strain for deposition within ten days. Failure to do so would result in denial of his motion to terminate alimony.
Plaintiff filed another motion on February 17, 1998, for a protective order to establish parameters for Strain's deposition. Defendant cross-moved on short notice to enforce the judge's January 23, 1998 order and obtain judgment against plaintiff for alimony arrears. In response, plaintiff filed three certifications. Defendant's reply certification generated a March 31, 1998 motion to compel defendant's deposition and to obtain a response to plaintiff's notice to produce. Plaintiff apparently felt it necessary to again respond to defendant's March 27 certification. After oral argument on April 9, the judge entered an April 22, 1998 order denying plaintiff's application for defendant's deposition and documents. The order again directed that Strain appear for her deposition and once again denied plaintiff's motion for a protective order concerning the deposition. It reaffirmed prior orders concerning the production of documents. It is clear that plaintiff in no event should have been allowed fees in connection with this type of motion or any protective order motion he initiated which was denied.
Not content with the rulings to date, plaintiff moved for reconsideration on May 4 of the April 22, 1998 order. Defendant filed a cross-motion for counsel fees. The judge's resultant May 29, 1998 order directed that plaintiff provide defendant with certain discovery, denied plaintiff's motion for reconsideration and reserved on "all fee applications."
After Strain's deposition was taken on June 1 and 2, 1998, a case management conference was held on June 24. After objection to some of its proposed terms, a case management order prepared by plaintiff's attorney was executed on August 7, 1998, which somewhat incongruously required defendant to provide plaintiff with a letter specifically setting forth each document that defendant claimed she had not received from plaintiff or as a result of a subpoena to third parties. For documents not received, defendant was to prepare an ...