LESTRINO C. BAQUIRAN v. AURORA C. BAIRAN

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0533-04T5

LESTRINO C. BAQUIRAN,

Plaintiff-Respondent,

v.

AURORA C. BAIRAN,

Defendant-Appellant.
________________________________________________

Text Box
 
July 25, 2006

Argued October 19, 2005 - Decided

Before Judges Weissbard and Francis.

On appeal from Superior Court of New
Jersey, Chancery Division, Family Part,
Bergen County, FM-02-1191-02.

Kenneth W. Herbert argued the cause for appellant.

Gregory E. Lake argued the cause for respondent
(Lake Pennachio, attorneys; Mr. Lake, on the brief).

PER CURIAM

In this matrimonial matter, defendant Dr. Aurora C. Bairan appeals from an award of counsel fees to her ex-husband, plaintiff Dr. Lestrino C. Baquiran resulting from defendant's aborted application to overturn a property settlement agreement (PSA). We reverse.
The parties separated in 1998 and plaintiff filed a complaint for divorce on November 26, 2001; defendant filed her answer and counterclaim on January 3, 2002. On February 28, 2003, following a two-day settlement conference, an agreement was reached and placed on the record. A dual judgment of divorce was entered on May 8, 2003 incorporating the terms of the fifteen-page PSA which was attached to the Judgment. The Judgment found that the PSA "was entered into freely and voluntarily by the parties . . . that both parties were mentally competent, were not under any duress or coercion and . . . the parties agreed that the settlement is fair, equitable and just." Those findings were consistent with the sworn representations of the parties on February 28, 2003.
On July 3, 2003, only two months after the Final Judgment was entered, defendant moved to vacate the PSA. By that time, she had discharged her original attorneys and retained new counsel who filed the motion to vacate. In her certification in support of the motion, defendant asserted that she had been ill-served and ill-advised by her original attorneys. She claimed that, "I didn't speak up and object in court because I was afraid of [the Judge], was afraid to speak up against my lawyer, and believed that what my attorney was probably doing was just obtaining a proposal that still had to be refined to a writing that I had to sign before it became binding." See footnote 1 The certification went through each aspect of the PSA explaining how it was unfair and inequitable. Plaintiff filed a lengthy certification in opposition.
On August 29, 2003, the court heard oral argument on defendant's motion, as well as plaintiff's cross-motion to enforce certain terms of the Final Judgment. Focusing on whether the PSA was "unconscionable," the judge asked for additional discovery including deposition of defendant's former attorneys and a jointly retained accounting expert. Although declining to make any finding as to whether defendant made a prima facie showing any part of the PSA was invalid, because of the need for further information, the judge did schedule a plenary hearing.
On October 8, 2003, the parties appeared again. Defendant argued that the court had erred in ordering the depositions of her former attorneys when the only issue was whether the PSA was unconscionable. While recognizing that it could not force either party to take depositions, the judge expressed the view that testimony from the former attorneys would be necessary to resolve issues of fraud, duress, misrepresentation and general lack of understanding raised by defendant. After conferring with his client, defendant's attorney announced that in order to preserve defendant's claims of malpractice against her former attorneys and to keep those allegations separate from the motion to vacate, defendant would voluntarily dismiss her claims sounding in malpractice or fraud from the pending matter, leaving the issue to be resolved whether "the net result of this settlement is a one-sided totally unfair, unreasonable result[]." Plaintiff argued that the judge had never decided whether defendant had made a prima facie case sufficient to require a plenary hearing. The judge, however, felt that he could not make any determination before seeing the accounting expert's report on whether the parties' assets had, in fact, been divided equally.
As a result, an order was entered that same date, October 8, 2003, vacating the prior order directing depositions of former counsel, and further stating that "defendant voluntarily removes from this case, without prejudice to asserting said claims in a malpractice action, all allegations of fraud, misrepresentations, misleadings, misunderstandings, and miscommunications by defendant's former attorneys." On October 22, 2003, a case management order was entered which required that depositon of the forensic accountant be completed by November 30. On November 19, 2003, defendant's attorney wrote to plaintiff's attorney objecting to any testimony at the plenary hearing from defendant's former attorneys in light of the narrowing of the issues as provided in the October 8, 2003 order.
The plenary hearing began on January 27, 2004, with opening statements, testimony from a real estate appraiser and the beginning of defendant's direct testimony. On January 29, defendant continued her direct testimony. On January 30, defendant's direct continued and testimony was taken from the jointly retained accounting expert. At the outset of that day's proceedings, plaintiff's counsel made reference to a request from the judge at the end of the prior day's testimony that both sides submit a sealed settlement proposal to him. At the same time, plaintiff's attorney noted that he intended to seek attorney fees for the motion to vacate, stating that, "[w]e already gave a fair settlement, but we're prepared to offer more" and would "like the court to take that into consideration." Defendant's counsel responded that his settlement proposal was forthcoming but stated his understanding that the judge would ultimately review the proposals to determine if either party had acted in "bad faith," which the judge corrected as being a determination of "whether someone has taken an unreasonable settlement position." The following colloquy then occurred:
So you will then determine has been -- has happened beforehand because as -- to my knowledge the fact that we filed a motion and we've convinced the Court that there was sufficient basis for a plenary hearing would negate any claim for counsel fees, at least to this point. So I must object to what [plaintiff's counsel] said that he's going to seek counsel fees for everything from the point from the time we filed the motion --

THE COURT: No. I don't think that necessarily follows. You made a motion and I found that there was a sufficient prima facie showing warranting a plenary hearing, but I could very well find at the final hearing that there is no basis to vacate the judgment and that, in fact, it was without merit -- the claim was without merit.

[PLAINTIFF'S COUNSEL]: Oh, yes, I agree Your Honor could find, but well we'll deal with the issue of attorney fees when --

THE COURT: There is an exposure here and I must say that for the record. There's an exposure here for the payment of counsel fees. If I hear the case and I ultimately find there's no merit to the defendant's application, I could very well find that she's taking an unreasonable position. I just want her to know that. I'm not prejudging it. I haven't made that decision, and I wouldn't make my decision until I hear all the testimony, but there's an exposure here. I'm sure she knows that.
The hearing continued on February 2 with more direct of defendant and the start of cross-examination, which continued on February 3, ending apparently because, according to defendant's attorney, "she suffered a type of breakdown in the courtroom." The hearing was scheduled to continue on March 3. However, on February 17, defendant's attorney wrote to the court as follows:
Prior to the plenary hearing, the Court entered an Order at the undersigned's request which excluded any testimony of alleged misstatements or false statements between Dr. Bairan and her attorneys at the time. This Order was specifically premised on Dr. Bairan's request that any evidence bearing on her former attorneys' alleged malpractice be precluded from the plenary hearing so as to preserve Dr. Bairan's legal malpractice case and to assure that this Court would not be called upon to make any factual findings that would carry over and be admissible in the forthcoming legal malpractice case.

During the course of the plenary hearing, on several occasions, the Trial Court expressed its tentative opinion that it did not believe the testimony of Dr. Bairan and that counsel fees would likely be assessed if the Court did not conclude that a reasonable basis existed for the hearing or if either party's final, sealed settlement offer was not reasonable under the circumstances. It should be noted for the record that the undersigned neither asserts nor implies any judicial impropriety regarding the Court's expressions of its tentative conclusions. Just the opposite is true: The Court's expressions of its tentative conclusions assisted the undersigned in evaluating its legal position.
On the last day of the hearing, February 3, 2004, the Court advised counsel in chambers that it no longer intended to abide by the aforementioned Order precluding testimony of conversations between Dr. Bairan and her former counsel.

The Court stated in no uncertain terms that it wanted testimony elicited from both Mr. Morrison (the joint accountant) and Mr. Baime (Dr. Bairan's former attorney) about their meetings and conversations with Dr. Bairan, and that if the attorneys did not ask these questions, the Court would.

After intense deliberation these past several days, Dr. Bairan has concluded, based on the facts aforestated, that it would not be in her best interest to proceed any further with the plenary hearing.

Defendant, Aurora C. Bairan, therefore, hereby voluntarily withdraws her motion to vacate the Property Settlement Agreement and voluntarily dismisses the pending plenary hearing.
 
On March 3, the parties appeared in court again. Plaintiff's counsel acknowledged the receipt of defendant's February 17 letter and noted his response of February 19 agreeing and disagreeing with certain things in that letter (the record does not contain this February 19 response). Counsel and the court then proceeded to discuss a certification in support of his request for counsel fees. The judge then summarized the matter as follows:
THE COURT: Well, let me just make a few statements for the record, also. I did receive the letter from [Defendant's counsel] dated February 17, 2004, on behalf of Dr. Bairan, which voluntarily withdrew her motion to vacate the property settlement agreement and voluntarily dismiss the pending plenary hearing.

As pointed out, however, by [Plaintiff's counsel] in his answering letter dated February 19, [Defendant's counsel]'s letter made no reference to the October 8, 2003, order concerning Dr. Bairan's former attorney, is Paragraph 2 or it didn't make reference. [Defendant's counsel]'s letter didn't make reference to that order.

Paragraph 2 of that order specifically states that the defendant voluntarily removes from this case without prejudice to asserting said claims in a malpractice action all allegations of fraud, misrepresentation, misleadings, misunderstandings, and miscommunications by defendant's former attorneys.

That was premised upon the wife's choice to pursue a malpractice claim against her former attorneys and not to call them or Mr. William Morrison as witnesses in support of her claim in this plenary hearing to set aside the settlement agreement.

However, the order dated October 8th of '03 did not preclude the plaintiff from offering testimony of Mr. Baime, Ms. Schlery (phonetic), Mr. Morrison or others from testifying to the discussions between them and Dr. Bairan regarding the terms of settlement and the negotiations, statements, or reasons for entering into the agreement.

[Plaintiff's counsel] made it very clear from the outset that he intended to call such witnesses on behalf of Dr. Baquiran to prove the validity and enforceability of the agreement and to controvert the defendant's credibility.

There was no order precluding such testimony. I know of no court rule or rule of evidence under which such testimony could have been barred if offered by the plaintiff. It's true that Dr. Bairan herself testified to several discussions with her attorneys about the settlement on February 27, 2003.

Some of these are pointed out by [plaintiff's counsel] in his letter. For example, that there were no discussions with her attorneys about the details of the settlement until February 27, 2003, when there was a settlement conference; (b) that Mr. Baime, after an alleged conference with the Court told Dr. Bairan that he got her $12,500 per month in alimony; (c) that there was no discussion of a settlement on February 27, '03, other than the issues of alimony and the West New York and Haworth real estate distribution; (d) that she provided Mr. Baime with information concerning her alleged inheritances, loans, and funds forwarded to the Philippines; (e) that Mr. Baime or Ms. Schlery did not explain LEPIS AGAINST LEPIS, CREWS AGAINST CREWS to her and that he never -- that is, Mr. Baime, never discussed the offset of the $144,000 against $200,000 previously granted by the Court pendente lite to Dr. Baquiran toward his share of equitable distribution; (f) a tax basis for real estate assets was never discussed; (g) the settlement discussions regarding the different appraisals of property at 50 Central Park West, New York, were never discussed; (h) there were numerous other references by Dr. Bairan during her testimony as to discussions or lack of discussions between her and her attorneys.

It would only be realistic to expect that plaintiff would produce witnesses to controvert Dr. Bairan's testimony. There were several settlement conferences between Counsel and the Court in chambers during this plenary hearing. While I gave no tentative opinion or tentative conclusions, I did discuss with Counsel some of my impressions relating to the testimony and the cross-examination of witnesses and Dr. Bairan.

I by no means pre-decided the case. My decision could, obviously, not be rendered until all the testimony is heard and after summations of Counsel. My decision would have been based on the testimony at the hearing, as well as the issue of credibility of the parties and witnesses and not upon the representations of the attorneys made to the Court during settlement conferences in chambers.

In the interest of fairness, I did try to guide the attorneys and persuade them to reach a settlement. Specific terms of the settlement were discussed and offered by [Plaintiff's counsel] in chambers. I emphasize the importance of trying to reach a settlement before the close of the case.

I also reminded the attorneys that the parties have raised a continuing issue of an award of Counsel fees. We discussed in chambers the provisions of the court rule, which requires the Court to consider as a factor in awarding Counsel fees the reasonableness and good faith of the positions advanced by the parties.

Now, that takes me to your request for
Counsel fees, [plaintiff's counsel]. Now, how do you propose --

[Plaintiff's counsel]: I have an attorney certification.
THE COURT: How do you want me to address
that issue?

[Plaintiff's counsel]: Your Honor, I thank the defendant for withdrawing the motion that she made and terminating the plenary hearing that occurred. However, in furtherance of her action, my client incurred about $81,000 in attorney fees.

We're also asking that incorporated in this final order that the parties are directed already, Your Honor, by the settlement that was put on the record to pay the expert fees. I'd like to -- I have all the expert fees. I believe I have them all, and I'd like to incorporate them in the final order, so it's clear what's owed and what portion my client has to pay. We're also --

THE COURT: In other words, that's pursuant to the final judgment of divorce.

[Plaintiff's counsel]: Yes, sir. But we're also asking that whatever expert fees were incurred during the course of this new action to vacate the judgment, that the defendant be totally responsible for those. That breakdown, I do not have from the experts. I will be responsible for -

THE COURT: All right. So you're going to make an application via an attorney certification of services.

[Plaintiff's counsel]: Yes, sir.

THE COURT: And a three or four-page letter memorandum addressing the issues of -- or the criteria set forth in the court rule.

[Plaintiff's counsel]: Yes, sir.

THE COURT: That's Rule 5:3-5C, as well as WILLIAMS AGAINST WILLIAMS, and then I'll have to -- I'll give [Defendant's counsel] a chance to respond to that. Now, can you get your papers to me in ten days?

[Plaintiff's counsel]: Yes.

THE COURT: And then [Defendant's counsel] will have another ten days to respond.

. . . .

THE COURT: And that the only issue that has to be decided by the Court is the Counsel fee issue, and that will be decided by the papers -- or on the papers after you make your submissions to me. Now, when you make your submissions, don't forget, I have to know the financial circumstances of the parties in order to determine whether there is a need for Counsel fees, and whether there is an ability to pay. So I need CIS', case information statements. I think there are some recent ones.

[Plaintiff's counsel]: Yes.

THE COURT: Attach them to your papers, so that I can address that issue. And if any part of your claim is based upon unreasonable settlement positions, that should be pointed out. If you want to rely upon those final settlement offers that were submitted, direct my attention to that, I think I have them in the file here.

[Plaintiff's counsel]: You do, sir.

THE COURT: I never opened them.

[Plaintiff's counsel]: They're sealed and to you.

THE COURT: Right. As I understand the law, the issue of bad faith may still be a requirement of WILLIAMS AGAINST WILLIAMS, but the Court ruled lessen the burden upon the person seeking Counsel fees by now indicating that Counsel fees can be awarded if one party or the other takes an unreasonable position. So that's as I see it something less than bad faith. So point those issues out, and then I'll give my final decision to you. But, the order you submitted will be called a final order.

[Plaintiff's counsel]: Yes, sir.
 
Plaintiff's attorney's certification in support of his application for counsel fees was filed on March 5, 2004. In part, counsel certified as follows:
7. The plenary hearing commenced on January 26, 2004. After numerous days of testimony by Michael Saponara of "Kroll" (court appointed forensic accountants) and the defendant/wife, the Court found the defendant/wife's testimony to be not credible. The Court also found Michael Saponara's testimony to be believable and credible and much of his testimony contradicted the defendant/wife's testimony. The defendant/wife's testimony and proofs on cross examination were also found to be contradictory. The Court found her testimony to be so outrageous, it informed defendant/wife's counsel to inform her that although the Court was not making its ultimate decision as to the outcome of the matter, to date it found her testimony not be to credible.
 
[Emphasis added.]
 
Counsel certified that fees incurred post-final judgment, which were attributable to defendant's motion to vacate, amounted to $80,550 plus an additional $1199.55 in disbursements, for a total of $81,749.55. The certification argued that defendant made unreasonable settlement demands, setting out a number of examples. In response, defendant filed a lengthy certification, most of which was devoted to arguing that she had a good-faith basis to bring the motion to vacate, including, again, discussion of how her former attorneys had provided her with ineffective and unprofessional representation. In explanation of why she chose to abandon the hearing, defendant certified:
14. Not long after the testimony had commenced, and continuing right up to the time of my withdrawal, every time my attorney would report back to me after conferring with the Judge, I was told by him, in ever-increasing stronger terms, that the Judge has expressed his tentative conclusions that he was not persuaded to the slightest extent that the agreement was unfair or that I did not understand and agree to all the terms.

15. My attorney made clear to me that the Judge was acting properly in expressing his tentative thoughts, as that information would aid the parties in assessing their respective positions. It should not be surprising, therefore, as the days passed, and the Judge's tentative thoughts were regularly conveyed to me, that I was losing confidence in the likelihood of success, notwithstanding the absolutely firm and unshakeable belief in my position held by my attorney and myself.

16. Approximately mid-way through my testimony (which continued in half-day sessions over several days), I recall Judge Torack stating from the bench that he considered me a very bright woman, a meticulous person, one who understood the English language and one who is aware of everything that is going on in the courtroom.

17. The inference to be drawn from the Judge's remarks is undeniable: He was leaning heavily towards a conclusion in my husband's favor. I never had an opportunity to respond to the Judge by stating that now I am meticulous and very much aware of what is going on, for the good reason that I was so burned by my first attorneys whom I trusted. I learned my lesson. This was my first divorce; I hired attorneys who were specialists in divorce law and in return I expected their loyalty and good faith. I didn't get it. I certainly was a changed woman at the plenary hearing. Nevertheless, I had to realize that the hearing was not going well for me.

18. Also, at about the mid-way point of the hearing, my attorney discussed with me his growing concern (based on his discussions with the Judge in chambers) that fees were likely to be assessed against me at the end of the hearing, if the case was not settled. In fact, the Court ordered both parties to submit sealed offers of settlement which the Court declared it would open at the end of the hearing and, based on the Court's analysis of the reasonableness of the respective offers, attorneys fees would be assessed.

19. The fear was growing rapidly within me that the Court's threat of sanctions if I continued the hearing would only cause me further economic devastation which I could not afford.

20. With the threat of sanctions being held over my head, I simply could no longer run the risk of being ordered to pay my husband's counsel fees and expert fees on top of my own counsel's fees.

21. In order to avoid the imposition of sanctions, I caved in and withdrew my motion, assuming that I would at least save myself from the obligation of paying my husband's fees and costs. Ironically, my husband is now trying to use my withdrawal as evidence of some improper motive or bad faith on my part.
 
In reply, plaintiff's counsel took defendant to task for once again attacking her former attorneys in the face of the October 8, 2003 order which withdrew the malpractice allegations from the motion to vacate. In part, he stated:
F. As to the defendant's contention in her certification, paragraph 21, that she thought that by abandoning her position and withdrawing her motion to vacate the Property Settlement Agreement after almost an entire year of meetings, retaining of experts, depositions, motions, court room hearings, etc., that she could now walk away at the very end, with no responsibilities for her actions is absurd. What the defendant did accomplish is not incurring the additional legal fees she would have incurred had she continued her course of action.

G. The defendant's supplemental certification has no connection to reality and makes no sense to me, therefore I cannot make any further comment regarding it.
 
On August 16, 2004, the judge issued a written opinion on the counsel fee issue, stating in part:
In preparation for the plenary hearing, Plaintiff's attorneys needed to perform duplicative discovery to a great extent, including subpoenaing numerous witnesses and producing documents that had already been produced during the divorce litigation. During the hearing, which commenced January 26, 2004, the Court found Defendant's testimony to be questionable. Defendant's statements conflicted with the testimony of the forensic accountant (whom this Court found to be credible), as well as with her own answers during cross-examination. After several days of testimony from both parties and their experts, the matter was adjourned due to defendant's ill health.

. . . .

In addition, based upon Defendant's unreasonable settlement positions and her abrupt withdrawal of her motion to vacate the Property Settlement Agreement, this Court found that Plaintiff is entitled to attorney's fees, the amount of which would be determined upon the written submissions by both sides.

Since the time Defendant filed her motion to vacate the Property Settlement Agreement, which she later arbitrarily withdrew, Plaintiff has incurred an additional $80,550.00 in legal fees and $606.40 in costs. Plaintiff seeks a total award in the amount of $81,156.40 (as of March 3, 2004).
 
The judge then referred to the criteria outlined in R. 5:3-5(c), see R. 4:4:42-9(a)(1), and proceeded to analyze each of the applicable factors. In pertinent part, the judge stated:
3. The Reasonableness and Good Faith of the Positions Advanced by the Parties.

Both parties consented to entry of the Property Settlement Agreement after receiving the counsel and advice of their attorneys and after conducting extensive negotiations. Both parties stated on the record in open court that they read, understood and agreed to be bound by the terms of the agreement. In addition, both parties testified that they believed the agreement was fair under all the circumstances. Essentially, the marital property was divided such that the parties were placed in relative equipoise; Defendant received approximately $3,076,970.00 worth of assets and property whereas Plaintiff received about $3,304,331.00 worth of assets and property.

Defendant filed a motion to vacate the Property Settlement Agreement returnable August 8, 2003. Initially, Defendant alleged that her consent to the Property Settlement Agreement was the result of fraud, misrepresentation and duress caused by her former attorney. However, Defendant withdrew those aspects of her argument because she refused to depose and/or allow her former attorney to testify. As the matter proceeded to trial, Plaintiff's attorney was required to perform duplicative discovery to a great extent, including subpoenaing witnesses and documents that had already been produced during the divorce litigation.

Defendant's unreasonable settlement positions resulted in extensive counsel fees and forced the matter to go to trial. At trial, Defendant basically requested a redistribution of the marital assets. However, Defendant's testimony at the plenary hearing was not credible and was contradictory in many respects. Defendant made unreasonable requests that conflicted with the testimony of the court-appointed accountant. Furthermore, Defendant's real estate expert admitted during cross examination that he valued the business property as if it were used as a residential property (instead of the property's current business use). Moreover, even if Defendant's expert's hypothetical residential use analysis were accepted by this Court, he still failed to consider any costs/losses Plaintiff would incur by having to relocate the business to another location. As a result of the testimony by the Defendant and her expert, this Court strongly advised the parties to settle this matter. However, Defendant steadfastly refused.

After several days of trial (and a two week delay due to Defendant's ill health), Defendant suddenly withdrew her motion to vacate the Property Settlement Agreement. Due to Defendant's inconsistent and unreasonable behavior, her unfounded allegations that she eventually withdrew, and her failure to settle this matter amicably, Plaintiff incurred extensive and unnecessary counsel fees. Under New Jersey Court Rule 5:3-5(c) and applicable case law, counsel fee awards may be imposed as sanctions for acts of bad faith if a party deliberately fails to comply with either a voluntary settlement or court order, or if the relief sought is supported by an unreasonable argument. Borzillo v. Borzillo, 239 N.J. Super 286 (App. Div. 1992). In the current matter, Defendant acted in bad faith by failing to comply with the Property Settlement Agreement and advancing unreasonable settlement positions. Defendant deliberately protracted this litigation simply to withdraw her claims.

4. The Extent of Fees Incurred by Both Parties.

As of March 3, 2004, Plaintiff has incurred counsel fees totaling $138,750.00 and $1,672,70 in costs. Of that amount, Plaintiff has incurred $80,550.00 in legal fees and $606.40 in costs since Defendant's motion to vacate the Property Settlement Agreement. Defendant has incurred legal and expert fees of approximately $197,645.00 (as of March 23, 2004).

5. Any Fees Previously Awarded.

Plaintiff was previously required in a June 2002 pendente lite order to pay $15,000.00 in counsel fees for Defendant's attorney, which he has done. Plaintiff was also ordered to pay $7,500.00 as the initial retainer for Kroll, the court-appointed forensic accountants, which he has done.

6. The Amount of Fees Previously Paid to Counsel by Each Party.

Plaintiff has paid counsel fees in the amount of $48,000.00 toward his total of
$80,550.00 in counsel fees incurred (as of attorney's certification dated March 3, 2004). Defendant fails to indicate the amount of legal fees paid to date, but indicates that she has outstanding amounts owed to both of her two attorneys.

7. The Results Obtained.

The attorneys and parties mutually settled the divorce issues on the record. A Balance Sheet detailing the financial circumstances of the parties was created at the time of settlement, setting forth the agreed upon distribution of property and assets. An Order was entered on Plaintiffs Cross-Motion on March 22, 2004. The issue of counsel fees was to be determined upon submission of letter briefs by both parties on the issue of incurred fees in this case.

8. The Degree to Which Fees Were Incurred to Enforce Existing Orders to Compel Discovery
At the time of the settlement, Plaintiff had incurred a total of $57,000.45 in legal fees and $593.15 in costs. Plaintiff was forced to respond to Defendant's applications and incurred an additional $80,550.00 in legal fees and $606.40 in costs.

9. Any Other Factors Bearing on the Fairness of the Award

Plaintiff refused to comply with the terms of the Property Settlement Agreement and filed a motion seeking to redistribute the marital assets. Thereafter, Plaintiff negotiated in bad faith and essentially attempted to protract the litigation by advancing unfounded claims. When this Court recommended that the parties settle this matter, Defendant refused.

CONCLUSION
 
Due to the excessive litigation caused by Defendant's advancement of unreasonable settlement positions, unwillingness to litigate in good faith, unsubstantiated claims and failure to comply with the terms of the Property Settlement Agreement, this Court finds that Defendant pursued her motion to vacate the Property Settlement Agreement in bad faith. Consequently, Defendant is hereby ordered to pay Plaintiff's counsel fees in the amount of $80,550.00 and $606.40 in costs, for a total award in the amount of $81,156.40.
 
An order conforming to the opinion was entered that same day.
Finally, the judge has also submitted a supplementary letter opinion pursuant to R. 2:5-1(b). Referring to the October 8, 2003 order withdrawing defendant's allegations concerning her former attorneys, the judge stated:
Dr. Bairan's decision to dismiss her motion was premised upon her choice to pursue a malpractice action against her former attorneys and not to call them or forensic expert, Mr. William Morrison as witnesses in support of her claim in this plenary hearing to set aside the settlement agreement. However, the order dated October 8, 2003 did not preclude Husband from offering testimony of Mr. Baime, Ms. Schilleri, Mr. Morrison or others from testifying as to the discussions between themselves and Dr. Bairan regarding the terms of settlement, and the negotiations, statements or reasons for entering the agreement. [Plaintiff's counsel] made it clear from the outset that he intended to call such witnesses on behalf of Dr. Baquiran to prove the validity and enforceability of the agreement, and to controvert the Wife's credibility. There was no order precluding such testimony. Additionally, there was no order barring such testimony if offered by the Husband.

Dr. Bairan testified at the partial hearing as to certain discussions with her attorneys about the settlement on February 27, 2003, including the following: (a) that there were no discussions with her attorneys about the details of the settlement until February 27, 2003 when there was a settlement conference, (b) Mr. Baime, after an alleged conference with the court, told Dr. Bairan that he got her $12,500 per month in alimony, (c) that there was no discussion of the settlement on February 27, 2003 other than the issues of alimony and the West New York and Haworth real estate distribution, (d) that Dr. Bairan provided Mr. Baime with information concerning her alleged inheritances, loans and funds forwarded to the Philippines, (e) that Mr. Baime or Ms. Shilleri did not explain the cases of Lepis v. Lepis or Crews v. Crews, and that Mr. Baime never explained the offset of the $144,000 against the $200,000 previously granted by the court pendente lite to Dr. Baquiran toward the share of equitable distribution, (f) a tax basis for real estate assets was never discussed, (g) the settlement discussion regarding the differing appraisals of property located at 50 Central Park West in New York were never discussed, (h) there were numerous other references by Dr. Bairan during her testimony as to discussions or lack thereof between her & her attorneys. It would only be realistic to expect that Husband would produce witnesses to controvert Wife's testimony.

There were several settlement conferences between counsel and the court in chambers during the plenary hearing. While I gave no opinions or conclusions, I did discuss with counsel some of my impressions relating to the testimony and the cross examination of witnesses and of Dr. Bairan. I did not pre-decide the case, as my decision could not be rendered until all the testimony had been heard and after summations of counsel. My decision would have been based on the testimony at the hearing as well as the credibility of the parties and witnesses, and not upon the representation of the attorneys made to the court during the settlement conferences in chambers.

In the interest of fairness I did try to guide the attorneys and persuade them to reach a settlement. Specific terms of a settlement were discussed and offered by [Plaintiff's counsel] in chambers. I emphasized the importance of trying to reach a settlement before the close of the case. I also reminded the attorneys that the parties had raised the continuing issue of an award of counsel fees. We discussed in chambers the provisions of R. 5:3-5(c), which requires the court to consider as a factor in awarding counsel fees "the reasonableness and good faith of the positions advanced by the parties".

For all of the aforementioned reasons I held that Dr. Bairan's withdrawal of her motion to vacate the Property Settlement Agreement was voluntary, that the agreement should be enforced, and that based on her conduct throughout the litigation, an award of counsel fees in favor of Husband was justified. A copy of the counsel fee decision is attached hereto. In enforcing the agreement, I rely upon Davidson v. Davidson, 194 N.J. Super 547 (Ch. Div. 1984), Harrington v. Harrington, 142 N.J. Eq. 648 (E.& A. 1948), and Brawer v. Brawer, 329 N.J. Super 273 (App. Div. 2000).
 
On appeal defendant argues that: (1) The trial court does not possess unbridled discretion to assess fees; (2) the trial court's continual threats of sanctions resulted in defendant's withdrawal of her plenary hearing under duress; and (3) defendant is entitled to a new plenary hearing because pre-trial orders prejudiced her right to a fair hearing.
Concerning defendant's first point, no one would argue that the trial court has "unbridled" discretion to assess counsel fees, or, for that matter, "unbridled" discretion to do anything. Discretion means "a 'sound discretion.' Judicial discretion is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 108-09 (App. Div. 2004) (citation omitted). In that case we explained "that judicial discretion means legal discretion in the exercise of which the court must take account of the law applicable to the particular circumstances of the case and be governed accordingly. Implicit is conscientious judgment directed by law and reason looking to a just result." Id. at 110 (quoting Wasserstein v. Severn & Co., 84 N.J. Super. 1, 6 (App. Div.), certif. denied, 43 N.J. 125 (1964)). Thus, the question is not whether the judge had unbridled discretion, clearly he did not, but whether he properly exercised his discretion or, as is often now stated, whether there was an abuse of discretion.
That said, we are troubled by several aspects of the judge's otherwise thoughtful exercise of discretion. First, in awarding plaintiff the full amount of all fees requested for work done post-final judgment, beginning with the first communication from defendant's new attorneys, we see no evidence that the judge attempted to separate out the work directly attributable to the motion to vacate and not, as defendant contends, to post-judgment matters of a more routine nature, such as clarifying parts of the PSA, or seeking enforcement of same, or opposing enforcement by the opposing party. Defendant contends, in part, that "the settlement itself was so incomplete that much legal and expert work was needed to be done post-judgment whether or not a motion to vacate was ever filed." Although a number of examples are provided, we cannot evaluate that argument on the present record. Rather, it is a painstaking task that should ordinarily be performed by the trial court. However, one thing is clear: the court's order of March 22, 2004 provides that counsel fees are to be assessed for the period after defendant filed her motion to vacate, which was July 3, 2003. However, plaintiff's invoices include a substantial amount of time before July 3, going back to March 17, 2004.
Our second cause for concern deals with the reason for defendant's withdrawal of her motion and the court's consideration of the fact of withdrawal in reaching its ultimate bad faith conclusion. At the outset, we agree with the trial judge that his decision to have a plenary hearing did not preclude a subsequent finding that defendant acted in bad faith. The decision to have the hearing merely reflected the judge's conclusion that defendant had, by means of her initial certification, made out a prima facie case of a manifestly unfair settlement. A full hearing, subject to cross-examination and resulting credibility determinations could, and in this case did, alter the judge's preliminary view.
That said, there is little doubt that the judge did consider defendant's withdrawal of her motion as a factor in his ultimate finding of bad faith. As a result, we are compelled to examine the reasons for the withdrawal. Defendant argues that her withdrawal was prompted by "the continual and severe judicial threats or warnings of the likelihood of an assessment of fees if [she] did not settle her claim [which] had the effect of taking away [her] free will to pursue her motion and coerced her into a withdrawal of the motion." Indeed, in her point heading, defendant refers to the trial court's "continual threat of sanctions." While we do not agree that the judge's statements were so "continual and severe" as to deprive defendant of her free will, we do conclude that the judge, in his laudable effort to effectuate a settlement of the dispute, strayed into a forbidden area.
It seems beyond dispute that the judge, in chambers, expressed the opinion that he did not find defendant's testimony credible. Indeed, as stated by defendant's attorney in the emphasized portion of his February 17, 2005 letter of withdrawal, quoted above, the judge's statements were more than tentative. In defendant's certification in opposition to plaintiff's request for counsel fees, she stated that the judge's in-chambers negative observations, along with his concurrent reference to counsel fees, were regularly conveyed to her. As a result, we are unable to conclude that defendant did not reasonably view these comments as an implicit threat of sanctions, albeit well-grounded. Indeed, in his R. 2:5-1(b) letter, the judge confirmed that he had discussed with counsel his "impressions relating to the testimony and the cross-examination of witnesses and [defendant]." Although stating that he had not "pre-decide[d] the case," and that his ultimate decision would be based on what was heard in court "and not upon the representations of the attorneys made to the court during the settlement conferences in chambers, "the judge candidly concluded that he had tried "to guide the attorneys and persuade them to reach a settlement," while reminding them of that portion of R. 5:3-5(c) "which requires the court to consider as a factor in awarding counsel fees 'the reasonableness and good faith of the positions advanced by the parties.'"
To repeat, there is no doubt that the judge acted in good faith throughout. He granted defendant a hearing when others might have rejected her application outright, as plaintiff urged at the outset. Once underway, the judge found himself in the difficult position of all judges hearing non-jury matters, in seeking to balance the laudable desire to seek a settlement without compromising his role as neutral fact-finder. We do not say that the judge acted improperly but only that his actions could reasonably have been perceived by defendant as a threat of sanctions if she went forward. As a result, we conclude that it was not fair to thereafter hold against her as evidence of her bad faith the withdrawal of the motion based on the judge's statements as conveyed to her by counsel. See footnote 2
Finally, we are also concerned that the judge may have accepted plaintiff's position, as reflected in his counsel's certification, that it was improper for defendant, in opposing the counsel fee application, to refer to the actions of her prior attorneys. In our view, defendant permissibly relied on her thinking in that regard to demonstrate that she filed the motion to vacate in good faith. As noted, it was only after the motion had been filed that defendant agreed to withdraw the malpractice/misrepresentation allegations. The withdrawal of those allegations from the motion did not bar defendant from relying upon them with respect to her good faith. From the judge's failure to comment on this aspect of the competing certifications, we conclude that he may well have accepted plaintiff's position.
Based on these conclusions, the order under review must be reversed. While we also have some concern about the judge's in limine ruling that precluded defendant from calling any new witnesses to demonstrate the unfairness of the PSA, we ultimately conclude that the judge properly exercised his discretion in that regard.
To remand this matter for a new assessment of counsel fees by the trial judge, would, in our view, be untenable in light of his extensive findings. The judge would be called on to perform a nearly impossible feat of "mental gymnastics." Luedtke v. Shobert, 342 N.J. Super. 202, 219 (App. Div. 2001). Rather, we will exercise our original jurisdiction to bring this matter to a conclusion. R. 2:10-3. We do not, however, start from scratch. We defer to the trial judge's findings of fact, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), which were thoroughly and articulately expressed in the opinion of August 16, 2004 as supplemented by the latter opinion of January 6, 2005. Specifically, we accept the judge's conclusion that defendant's application exhibited bad faith, at least in the sense of advancing a position without reasonable basis in fact or law, see Borzillo v. Borzillo, 259 N.J. Super. 286, 293 (Ch. Div. 1992), or as evidencing an unreasonable settlement position. Those findings can be sustained without reference to the improper factors we have identified. Making an independent review of the factors set out in R. 5:3-5(c), we conclude that the equitable result, given the parties equality of financial means, is to hold defendant responsible for one-half of plaintiff's counsel fees for services rendered after filing of the motion to withdraw, plus disbursements, for a total amount of $35,324.55. See footnote 3
Reversed and remanded for entry of an appropriate order. We do not retain jurisdiction.

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Footnote: 1 Defendant asserted that the terms of the settlement were never discussed with her in advance and she could not understand them "because they were spoken too quickly" and she did not have a "written document to which I could refer and follow." Defendant certified that she has "difficulty digesting complicated matters in English because I always think in terms of Chinese or Fillipino [sic]." She could understand matters in English easier if she had something in writing to which she could refer.
Footnote: 2 We have no need to address defendant's alternate argument that her withdrawal was prompted by what she (and her attorney) perceived as an unfair ruling by the judge that would have permitted plaintiff to call her former attorneys as witnesses notwithstanding the October 8, 2003 order.
Footnote: 3 Plaintiff's counsel's invoices of April 30 and August 7, 2003 reflect 41.8 hours prior to July 3, 2003, at $300 per hour, or $12,300. We subtract that amount from a total of $80,550, leaving $68,250 which we divide in half. Costs of $1199.55 are then added to $34,125 for a final total of $35,324.55

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