On appeal from the Superior Court of New Jersey, Sussex County, Chancery Division, Family Part, Docket No. FM-19-400-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2007
Before Judges Lisa and Lihotz.
This case returns to us after remand proceedings directed by our previous decision of January 25, 2006, Bassani v. Bassani, No. A-5290-04T5 (App. Div. January 25, 2006).
In the underlying matrimonial litigation, the parties had amicably resolved all collateral issues and entered into a Property Settlement Agreement (PSA), which was incorporated in the judgment of divorce. However they were unable to reach agreement regarding their respective obligations to pay counsel fees and expert fees. They left that issue for determination by the trial court. The judge decided the issue as follows: Plaintiff was ordered to pay defendant $6,787.50 in attorney's fees with respect to specific filings by plaintiff that the judge deemed unnecessary and unmeritorious. Otherwise, the parties' cross-applications for counsel fees were denied. We note that plaintiff's total counsel fees were $77,650.75, and defendant's were $80,997.43. With respect to experts: (a) Rufino Fernandez was jointly retained to evaluate defendant's business. He was initially paid $20,000 from marital funds. At defendant's request, he prepared two additional Goldman*fn1 reports. The total cost of Fernandez's services was $50,989.75. The judge ordered the parties to share equally the remaining balance of $30,986.75. (b) Defendant hired Steven Reiss as a lifestyle expert to contest plaintiff's assertions regarding the parties' marital lifestyle. The judge ordered the parties to share equally Reiss' bill for $18,365. (c) Defendant hired Carole Miller as an employability expert to contest plaintiff's assertion that she could earn no more than $6,000 to $7,000 per year. Dr. Miller set plaintiff's potential earnings in the range of $23,000 to $30,000 per year. In the PSA, the parties agreed to imputed income for plaintiff of $20,000 per year. The judge found that plaintiff's position was persistently unreasonable, thus necessitating Miller's services, and accordingly ordered that plaintiff pay Miller's entire bill of $2,081.
Plaintiff appealed. In our earlier decision, we affirmed the trial judge's order awarding attorney's fees to defendant in the amount of $6,787.50. However, with respect to the remaining issues pertaining to counsel and expert fees, we found that the trial judge's decision did not address the pertinent factors under Rule 5:3-5(c) and Rule 5:3-3(i), and failed to set forth adequate findings of fact, as required by Rule 1:7-4(a). As a result, we remanded for the trial judge to reconsider the allocation of counsel fees and expert costs and to make findings of fact to reflect what evidence supports the resultant conclusions, including, but not limited to, the ability of the parties to pay any award of fees and costs, taking into consideration their individual incomes and expenses; what portion, if any, of plaintiff's fees and expenses should be underwritten by defendant; and the effect of defendant's bad faith, if found. Moreover, the trial court must resolve the conflict, if any, presented by paragraph 58 of the Judgment in any allocation of the joint expert valuation fees. [Id., slip op. at 12 (citation omitted).]
Plaintiff filed a motion with this court for an award of counsel fees for legal services rendered on appeal. She sought $14,175. We entered an order on March 13, 2006 referring that issue to the trial court for disposition pursuant to Rule 2:11-4.
On February 14, 2006, the trial judge issued a comprehensive thirteen-page written decision disposing of the issues remanded in our earlier decision. The judge made detailed findings and set forth specific reasons in support of his conclusion that, after factoring in alimony and child support payments, tax consequences, defendant's responsibility to maintain life insurance for plaintiff's benefit, the incomes (actual or imputed) of the parties, the assets received in equitable distribution, and other financial considerations, the parties had approximately equal resources available to them to pay counsel and expert fees. The judge concluded that "[o]n balance . . . the financial circumstances of the parties are substantially equal, and the Court does not find that either is so disadvantaged after implementation of the [PSA], to require one to pay counsel fees or expert fees of the other."
The judge considered other applicable factors as well, including the reasonableness and good faith of the positions advanced by the parties throughout the litigation. The judge found that plaintiff took unreasonable positions on several issues, thus constituting bad faith and causing defendant to expend resources for attorneys and experts that were unnecessary. The judge also found that with respect to the valuation of defendant's business, defendant took an unreasonable position, though it did not rise to the level of bad faith, which also necessitated substantial additional expenditure of resources by plaintiff for attorneys and experts.
Overall, the judge concluded that, based on his more detailed analysis and findings, his original determination that, with the exception of the $6,787.50, each party should pay his or her own attorney's fees was the correct decision. As far as the experts, the judge adhered to his earlier ruling that plaintiff was required to pay the full amount of Miller's bill because an employability expert would not have been necessary but for plaintiff's unreasonable position. However, the judge modified his earlier ruling with respect to Fernandez and Reiss. The judge concluded that a provision in the PSA provided that defendant would pay the balance of Fernandez's bill, and that the judge had erred in initially ruling to the contrary. And, upon further analysis and reflection, the judge concluded that defendant should be solely responsible for the payment of his lifestyle expert, Reiss. The judge concluded that defendant did not need to retain an expert to rebut plaintiff's claims regarding the parties' marital lifestyle. Thus, rather than ordering the parties to share Reiss' bill, defendant was now required to pay the entire bill. The judge entered an order on February 14, 2006 accordingly.
The judge then received our remand order regarding appellate counsel fees. On May 18, 2006, the judge issued a written decision in which he concluded that the application should be denied. He noted that in most respects his initial order had been affirmed on appeal and, with respect to the remand issues, his February 14, 2006 order made only minor modifications in plaintiff's favor, but otherwise left his previous rulings intact. And, with respect to Fernandez's bill, the judge noted that defendant "only offered nominal resistance to the issue regarding Mr. Fernandez's fees, frankly acknowledging that he had never pressed contribution from the plaintiff. The error was made by this Court, and not because of any advocacy by defendant." We note that defendant did not appeal the portion of the order requiring him to pay the entirety of Fernandez's fee.
Under A-3776-05T5, plaintiff appeals from the February 14, 2006 order. She argues:
THE DENIAL OF COUNSEL AND EXPERT FEES TO PLAINTIFF WAS BASED ON THE COURT'S RELIANCE ON A MISTAKE OF FACT, A TYPOGRAPHICAL ERROR ON PLAINTIFF'S EARLY SETTLEMENT PANEL STATEMENT AND ITS FAILURE TO HOLD DEFENDANT ACCOUNTABLE FOR ...