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DOCKET NO. A-5290-04T55290-04T5








Submitted December 8, 2005 - Decided

Before Judges Stern and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-400-03.

Einhorn, Harris, Ascher, Barbarito, Frost & Ironson, attorneys for appellant (Bonnie C. Frost, on the brief).

Newman, McDonough, Schofel, Giger, attorneys for respondent (Laurence Desind, of counsel; JoAnne Juliano Giger, on the brief).


Plaintiff, Carol Bassani, appeals the final matrimonial order fixing the parties' obligations to pay the counsel fees and expert costs incurred in their divorce proceeding. She asserts the court abused its discretion in entering the order dated May 4, 2005, which imposed an obligation on her to pay a portion of defendant's fees and costs and awarded her no contribution to the expenses she incurred. From our careful review of the record, the trial judge for the most part failed to make adequate findings of fact so that the parties and the appellate court may be informed of the rationale underlying his conclusions. Esposito v. Esposito, 158 N.J. Super. 285, 291 (App. Div. 1978). This requirement is particularly applicable to matrimonial cases. Harmon v. Harmon, 161 N.J. Super. 206, 211 (App. Div. 1978). We reverse and remand for additional findings.

The parties were married on May 28, 1977, and adopted two sons during the marriage. Plaintiff filed her complaint for divorce on March 6, 2003. A settlement of all collateral issues was reached on the date the matter was scheduled for trial. Thereafter, the amended dual judgment of divorce, (Judgment), which incorporated the terms of the parties' settlement, was entered on February 8, 2005. Paragraph 57 of the Judgment provided the parties would submit additional documentation for the court's determination and decision on the final allocation of "professional fees, including lawyer and expert fees as well as costs and expenses incurred in the litigation." Paragraph 58 states defendant "shall pay any remaining fees due and owing to" the jointly retained business valuation expert.

Plaintiff asserts her attorney's fees totaled $77,650 and her forensic accounting costs were $17,472. The jointly retained business valuation expert charged $21,841.60 for his initial report and, plaintiff asserts, an additional $29,158 for two Goldman reports. Defendant's expenses were listed as: counsel fees totaling $80,997; forensic accountant costs of $19,317.50; a lifestyle expert who billed $18,905 and an employability expert who is owed $2,081.

The court's order, accompanied by a "Statement of Reasons" serving as the findings of fact and conclusions of law supporting the order, allocated a portion of defendant's attorney's fees to be paid by plaintiff. The court found plaintiff filed "unnecessary Orders to Show Cause in December of 2003 and then again a matter of days prior to a scheduled trial date" which were "pressed for nothing more than tactical advantage," and were denied. She filed a motion reiterating the requests included in the first emergent application, which "was viewed by the Court to have been unnecessary and was denied almost entirely." No prior fee awards were issued and defendant "substantially prevailed on those applications," so plaintiff was ordered to pay defendant $6,787.50 toward his outstanding legal fees.

The court denied the balance of each party's counsel fee request, suggesting plaintiff took a "consistently unreasonable" position with regard to alimony while defendant "expended enormous resources in attempts to minimize the value of his business." In this regard, the court found the parties "will maintain a solid financial position" after the implementation of the provisions of settlement and "[t]hey each have the ability to pay their own fees and to contribute to the fees of the other."

When addressing the payment of expert costs, the court found plaintiff's position as to her earning potential was "unreasonable," therefore, she was ordered to pay defendant's employability expert. The fees incurred for the jointly retained business valuation expert, not only the charge for his initial report, but also those incurred in preparing the two updated reports alleged to have been solicited solely by defendant to show a downturn in the value of the business, were allocated equally by the court because: "it was reasonable to get updates of [the expert] report because of the passage of time and change of circumstances with regard to the business." No mention was made by the court of defendant's agreement in paragraph 58 of the Judgment to pay a portion of these fees. Defendant's lifestyle analysis expert was found to have "assisted both parties in moving the case forward." Those costs were required to be paid equally. No mention was made of the responsibility for payment due to the forensic accountants retained by each party.

Plaintiff challenges the trial court's determination because it "ignor[ed] defendant's bad faith and lack of candor to the court (and plaintiff) throughout the litigation," . . . "failed to consider defendant's ability to pay his own fees," failed to require defendant to pay "expert fees he voluntarily assumed" and "ignored defendant's ability to contribute to plaintiff's fees."

The authority to enter an award of attorney's fees is found in N.J.S.A. 2A:34-23, which provides in pertinent part:

Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a decision is rendered on the other issue then before the court and shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.

[N.J.S.A. 2A:34-23]

Fees in family actions are normally awarded to achieve parity between the spouses so as to level the litigation playing field. Anzalone v. Anzalole Bros., Inc., 185 N.J. Super. 481, 486-87 (App. Div. 1982); Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992). "With the addition of bad faith as a consideration, it is also apparent that fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees." Kelly, supra, 262 N.J. Super. at 307.

The "trial judge has broad discretion as to when, where and under what circumstances" said fees and costs may be awarded. Enright v. Ludbow, 215 N.J. Super. 306, 313 (App. Div.), certif. denied, 108 N.J. 193 (1987). See also Williams v. Williams, 59 N.J. 229, 233 (1971); Loro v. Del Colliano, 354 N.J. Super. 212, 227 (App. Div.), certif. denied, 174 N.J. 544 (2002); Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000); Chestone v. Chestone, 322 N.J. Super 250, 256 (App. Div. 1999). "[J]udicial discretion is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case." Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952). The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Moreover, the exercise of judicial discretion must have factual underpinnings and legal basis. Id. at 110.

In reviewing any request for counsel fees in family matters, reference must be made to R. 5:3-5(c), which incorporates the requirements of R. 4:42-9 in the presentation of the application. The relevant provisions of R. 5:3-5(c) bear repeating:

(c) Award of Attorney Fees. Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce [.]... In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

Similarly, the trial court's discretion to "direct who shall pay the cost of [an expert] examination, appraisal, or report" is found in R. 5:3-3(i).

Concisely stated: "in awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees." Mani v. Mani, 183 N.J. 70, 94-95 (2005) (citations, emphasis and comments omitted). This balance requires a trial court to engage a critical review of all applicable factors; conclusory determinations without a factual basis or merely reciting the language of the Rules, cannot sustain scrutiny. Rendine v. Pantzer, 141 N.J. 292, 317 (1995); Loro, supra, 354 N.J. Super. at 227-228.

The trial court when assessing its finding of the lack of good faith exhibited by plaintiff in the orders to show cause and motion filings, adequately addressed the factual basis supporting that finding. In this regard, the trial judge listed the facts relied on to reach this conclusion and limited the amount awarded to very specific attorney services, in reasonable amounts, which were specifically related to the cited bad-faith applications. Where "the judge makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, supra, 329 N.J. Super. at 466 (quoting Rendine, supra, 141 N.J. at 317). The decision made on this issue, however, stands independent from the analysis of the balance of the court's findings.

Unfortunately, when denying the remainder of the cross-requests for payment of attorney's fees, as well as when requiring plaintiff to sustain the burden of payment of defendant's experts and half of the cost of the joint expert, the trial court provided no findings, stating only conclusions that plaintiff's position on alimony and defendant's position of the value of his business were unreasonable and the parties had the ability to pay. The specific factual underpinnings upon which a counsel fee or expert fee award under R. 5:3-3(c) and R. 5:3-3(i) is based is essential, particularly when the evidence shows the respective economic positions of the litigants are not in parity.

The Judgment stipulated the parties' level of income for the purposes of its provisions. It states defendant's earnings were $250,000 per year and plaintiff, who "is a part-time cafeteria worker, earning [$7,000] per year" was "imputed with earnings of $20,000 per year." Defendant agreed to pay alimony of $72,000 per year, which allowed each party to "maintain a lifestyle reasonably comparable to the marital lifestyle." Accepting these facts as the parties' gross incomes, defendant's income resources are twice that of plaintiff's.

The parties' liquid asset was limited to an Edward Jones account titled to defendant. A portion of plaintiff's share of this account was used as an offset the marital assets she retained. The parties also shared substantial non-liquid assets (marital home, retirement, and business) which, for the most part, were divided equally, except defendant received 65% of the business interest and plaintiff received 35%.

The court in its findings recited only the conclusion that the parties "will maintain a solid financial position" after the implementation of the provisions of the settlement. No consideration of each party's need to support himself, herself and the children, or the individual ability to pay was completed. This falls far short of the analysis required by the Rules to justify an award to defendant of his expert's costs and for the equal allocation of payment of expert costs and the satisfaction of counsel fees.

It is also unclear from the stated findings whether the trial judge, in making his award, considered the provision of the parties' Judgment, specifically the impact of paragraph 58.

A trial judge must be explicit in his recital of the evidence in his factual findings and must so correlate them to his legal conclusions to support entry of a judgment for payment. Grayer v. Grayer, 147 N.J. Super. 513, 516 (App. Div. 1977); Reiser v. Simon, 63 N.J. Super. 297, 300-301 (App. Div. 1960). Each factor of the Rule is relevant, significant and should not be omitted. See Gordon v. Rozenwald, 380 N.J. Super. 55, 79 (App. Div. 2005). Without findings referencing the supporting evidence, the determination is insufficient to permit review by this court and results in a disservice to the litigants, who are left to speculate about the basis for the discretionary decision. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

This matter has continued for a considerable time at a high level of contention. Unfortunately, the trial judge's decision to award expert costs and deny the requests for counsel fees did not address the pertinent factors under R. 5:3-5(c) and R. 5:3-3(i), and also, failed to make the required findings of fact. R. 1:7-4(a). Consequently, we remand 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. Clarke v. Clarke, 359 N.J. Super. 562, 572 (App. Div. 2003). 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.

Thus, the order awarding counsel fees to defendant of $6,787.50 is affirmed. The balance of the order allocating counsel fees and expert costs is reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

Goldman v. Goldman, 275 N.J. Super. 452 (App. Div.), certif. denied, 139 N.J. 185 (1994).

It is understood that from their respective incomes each parent will be paying for the support of the two unemancipated children of the parties. The Judgment reflects defendant's obligation to support the children is set at $21,112 per year.





January 25, 2006