BARBARA WEINRIB VS. MAXWELL BROTHERS(FM-11-0501-09, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1730-15T4

BARBARA WEINRIB, f/k/a
BARBARA BROTHERS,

Plaintiff-Respondent,

v.

MAXWELL BROTHERS,

Defendant-Appellant.
__________________________

Submitted March 29, 2017 – Decided September 5, 2017

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Mercer
County, Docket No. FM-11-0501-09.

Maxwell Brothers, appellant pro se.

Matthew B. Lun, attorney for respondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant Maxwell

Brothers appeals from the November 5, 2015 order, which compelled

him to pay fifty percent of the unreimbursed medical expenses for
his son, B.B.,1 and the child's future educational and

extracurricular activities, and denied his requests for make-up

parenting time and counsel fees. We affirm in part, and remand

in part for further proceedings.

We derive the following facts from the record.2 Defendant

and plaintiff Barbara Weinrib were married in 1999 and divorced

in 2010. On July 6, 2010, the parties executed a consent judgment

of time sharing and custody (the consent judgment), which granted

them joint custody of B.B. and made plaintiff the parent of primary

residence, and defendant the parent of alternate residence. The

consent judgment also set the parties' parenting time schedule.

On July 15, 2010, the court entered an amended dual final

judgment of divorce (ADFJOD), which required each party to pay

fifty percent of B.B.'s unreimbursed medical expenses. The ADFJOD

also required each party to pay fifty percent of B.B.'s daycare

expenses, but was silent as to the child's future educational and

extracurricular expenses.

1
Pursuant to Rule 1:38-3, we use initials to identify the child
to protect his privacy.
2
The procedural history and statement of facts in defendant's
merit brief are not supported by citation to the appendix, in
violation of Rule 2:6-2(a)(4) and (5).

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 On August 24, 2015, plaintiff filed an emergent application

seeking temporary custody of B.B. based on the child's report of

defendant's inappropriate conduct. In an August 24, 2015 order,

the court granted plaintiff temporary sole residential custody of

B.B. and temporarily suspended defendant's parenting time.

On September 8, 2015, defendant filed an emergent application

to dissolve the restraints, reinstate his parenting time, and for

makeup parenting time for the time that he missed. Defendant also

sought counsel fees.

Following a hearing, in a September 16, 2015 order, the court

dissolved the restraints, reinstated defendant's parenting time,

ordered defendant to have two additional parenting time days, and

reserved decision on defendant's request for makeup parenting time

and counsel fees. The court made no finding that the issuance of

the restraints was inappropriate or unwarranted. The court

converted the remaining issues to a motion.

On October 5, 2015, plaintiff filed a motion to enforce the

provision of the consent judgment requiring the parties to pay

fifty percent of B.B.'s unreimbursed medical expenses. Plaintiff

also sought to compel defendant to pay fifty percent of B.B.'s

future educational and extracurricular activities, among other

things. In his certification in opposition to plaintiff's motion,

defendant acknowledged his responsibility to contribute to B.B.'s

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unreimbursed medical expenses. Defendant filed a cross-motion

seeking additional parenting time, makeup parenting time, and

counsel fees, among other things.

In a November 5, 2015 order and written statement of reasons,

the court granted plaintiff's motion and denied defendant's cross-

motion. The judge found the parties had entered into the consent

judgment, and defendant missed parenting time as the result of a

court order, not plaintiff's wrongful withholding of parenting

time. The court did not find that plaintiff's emergent application

seeking temporary custody of B.B. was made in bad faith or was

meritless. The judge made no finding regarding the grant of

plaintiff's request for an order compelling defendant to pay fifty

percent of B.B.'s future educational and extracurricular

activities.

On appeal, defendant argues the court erred in requiring him

to pay fifty percent of B.B.'s unreimbursed medical expenses and

future educational and extracurricular activities, and denying his

request for makeup parenting time and counsel fees.

"In our review of a Family Part judge's motion order, we

defer to factual findings 'supported by adequate, substantial,

credible evidence' in the record." Landers v. Landers, 444 N.J.

Super. 315, 319 (App. Div. 2016) (quoting Gnall v. Gnall, 222 N.J.

414, 428 (2015)). "Reversal is warranted when we conclude a

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mistake must have been made because the trial court's factual

findings are 'manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend

the interests of justice[.]'" Ibid. (quoting Rova Farms Resort,

Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

"However, when reviewing legal conclusions, our obligation is

different; '[t]o the extent that the trial court's decision

constitutes a legal determination, we review it de novo.'" Ibid.

(quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).

Applying these standards, we discern no reason to disturb the

court's ruling on defendant's obligation to pay fifty percent of

B.B.'s unreimbursed medical expenses, and the denial of his request

for makeup parenting time and counsel fees.

A consent judgment is both a contract and a judgment. Midland

Funding, L.L.C. v. Giambanco, 422 N.J. Super. 301, 310 (App. Div.

2011). A consent judgment is akin to a settlement agreement. In

the matrimonial context, a settlement agreement may be modified

upon a showing of changed circumstances. Heller-Loren v. Apuzzio,

371 N.J. Super. 518, 535 (App. Div. 2004).

Here, the consent judgment required defendant to pay fifty

percent of B.B.'s unreimbursed medical expenses. Defendant never

sought to modify the consent judgment and, in fact, acknowledged

this obligation in his certification. In addition, the record is

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devoid of any evidence of changed circumstances that would warrant

deviation from the consent judgment. Accordingly, we affirm the

court's decision to compel defendant to pay fifty percent of B.B.'s

unreimbursed medical expenses.

We affirm the court's denial of defendant's request for

counsel fees. An award of counsel fees in matrimonial matters is

discretionary. R. 5:3-5(c); Williams v. Williams, 59 N.J. 229,

233 (1971). We will not disturb a counsel fee award absent a

showing of "an abuse of discretion involving a clear error in

judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div.

2010), aff'd, 208 N.J. 409 (2011); Chestone v. Chestone, 322 N.J.

Super. 250, 258 (App. Div. 1999). There was no abuse of discretion

here, as the record is devoid of evidence warranting an award of

counsel fees to defendant.

We also affirm the court's denial of defendant's request for

makeup parenting time for the reasons expressed in the court's

written statement of reasons, and because when resolving the

restraints, the court gave defendant two additional parenting time

days.

We reach a different conclusion as to the court's decision

to compel defendant to pay fifty percent of B.B.'s future

educational and extracurricular activities. A trial court's

obligation to make findings of fact and conclusions of law is

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critical to an appellate court's "meaningful review." Ronan v.

Adely, 182 N.J. 103, 110-11 (2004). Judges must make findings of

fact and conclusions of law "in all actions tried without a jury,

on every motion decided by a written order that is appealable as

of right[.]" R. 1:7-4. This requires judges to articulate

"specific findings of fact and conclusions of law." Pressler &

Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2013).

"Naked conclusions are insufficient. A judge must fully and

specifically articulate findings of fact and conclusions of law."

Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). If

sufficiently clear factual findings are absent from the record,

we will reverse and remand to the trial court for additional

findings. Curtis v. Finneran, 83 N.J. 563, 571 (1980).

The ADFJOD is silent on the issue of apportionment of B.B.'s

future educational and extracurricular expenses. The court made

no findings with respect to this issue. We thus remand the matter

for the trial court to make specific findings on this issue. See

R. 1:7-4.

Affirmed in part and remanded in part. We do not retain

jurisdiction.

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