NOT FOR PUBLICATION WITHOUT THE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-0715-16T4
H.S.,
Plaintiff-Respondent,
v.
D.S.,
Defendant-Appellant.
_________________________
Submitted September 12, 2017 — Decided September 29, 2017
Before Judges Hoffman, Gilson and Mayer.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Middlesex County, Docket No. FM-12-1381-13.
Weinberger Law Group, LLC, attorneys for
appellant (Gregory A. Pasler, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant D.S. (Dawn)1 appeals from certain provisions of a
September 19, 2016 order issued by the family court on her post-
1
We use initials and pseudonyms to protect the privacy of the
parties and their child.
judgment motion seeking relief against her ex-husband, H.S. (Hal).
Dawn argues that the judge failed to issue written or oral findings
of fact and conclusions of law in support of his rulings in
accordance with Rule 1:7-4(a). She further contends that the
judge failed to conduct a plenary hearing prior to ordering the
parties to undergo a psychological evaluation and altering
parenting time. We agree with Dawn's contentions and therefore
reverse and remand this motion to the family court.
Dawn and Hal married in 1993 and had a daughter in 2008. The
parties divorced in 2014. An amended judgment of divorce (AJOD)
incorporated the parties' agreement regarding custody of their
daughter and established a parenting time schedule. Hal moved to
California. Dawn remained in New Jersey with the child and
remarried in 2015.
In 2015, Hal filed a motion to terminate alimony based on
Dawn's remarriage. Dawn cross-moved for various relief including
modification of child support. A different family court judge
granted Hal's motion terminating alimony and granted Dawn's motion
modifying child support in an order dated September 4, 2015. That
judge also established that Hal would be responsible for paying
seventy-six percent of all work-related child care.
About one year later, Dawn filed a post-judgment motion to
enforce litigant's rights based upon Hal's non-compliance with the
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September 4, 2015 order and requested attorneys' fees. Hal cross-
moved for increased parenting time, including Skype time, and for
a mental health evaluation for the parties, their daughter, and
Dawn's new husband. On September 19, 2016, the family court judge
issued a thirty-six paragraph order denying Dawn's application to
enforce litigant's rights and attorneys' fees, compelling Dawn to
pay 100 percent of the work-related child care expenses and seek
reimbursement from Hal, and granting Hal's motions for a
psychological evaluation and for extra parenting and Skype time
with the parties' child.
The judge who issued the September 19, 2016 order failed to
set forth specific findings of fact and conclusions of law as to
his denial of Dawn's enforcement motion. While the judge
determined Hal failed to comply with the court's prior order
concerning proof of life insurance for the benefit of the
daughter,2 the judge denied Dawn's motion to enforce litigant's
rights because Hal obtained an alternate life insurance policy
naming Dawn as beneficiary. The judge, without conducting a
hearing, determined that Hal's alternate life insurance policy
satisfied the prior court order. Hal also failed to comply with
2
The prior order required Hal to provide annual proof of life
insurance expressly naming Dawn as trustee and the child as
irrevocable beneficiary.
3 A-0715-16T4
the AJOD because he did not provide the required proof of life
insurance until Dawn filed her enforcement motion. The judge
failed to explain the denial of Dawn's enforcement motion in light
of Hal's non-compliance with the AJOD and prior court order.
Additionally, in denying Dawn's enforcement motion compelling
Hal's payment of work-related child care, the judge found disputed
facts pertaining to the necessity of such expenses. Instead of
conducting a hearing to resolve the disputes, the judge ordered
Dawn to pay 100 percent of the expenses and pursue reimbursement
from Hal. The judge modified the prior court order governing
payment of work-related child care notwithstanding that neither
party requested such relief. Given that Hal earns four times more
than Dawn, requiring Dawn to pay 100 percent of those expenses was
financially burdensome, as well as contrary to the prior court
order. Moreover, the judge failed to resolve the parties' disputes
concerning the necessity and legitimacy of the work-related child
care expenses.
Pursuant to Rule 1:10-3, litigants in any action are permitted
to seek relief if they are denied "what is due" to them under a
court order. Dep't of Health v. Roselle, 34 N.J. 331, 337-38
(1961). Here, Dawn sought to enforce litigant's rights based upon
Hal's failure to pay work-related child care expenses and his
failure to provide annual proof of a compliant life insurance
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policy. While the judge found Hal had not complied with the prior
court order and AJOD, he denied Dawn's enforcement motion without
providing findings of facts and conclusions of law in support of
his determination.
Further, the judge ordered a psychological evaluation of the
parties, their child, and Dawn's new husband without explaining
his reasons in support of such relief. Dawn vehemently contested
Hal's allegation that their daughter was experiencing conflict due
to interfamily dynamics. The certifications filed by Hal and Dawn
on the alleged interfamily conflict suffered by their daughter
were diametrically opposite. Each parent accused the other of
dishonesty on this issue. Nevertheless the judge did not conduct
a plenary hearing to resolve the disputed contentions concerning
the psychological evaluation. When the issues "hinge on factual
determinations, credibility and diverse contentions, a plenary
hearing is required." Dunne v. Dunne, 209 N.J. Super. 559, 571
(App. Div. 1986); see also Hand v. Hand, 391 N.J. Super. 102, 105
(App. Div. 2007).
The judge also modified the prior court order establishing
Hal's parenting time with his daughter. Hal requested one extra
week of parenting time during the summer vacation. The judge
granted Hal's request without providing a statement of reasons,
despite acknowledging that a change in circumstances and the best
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interests of the child were the applicable standards for
modification of a mediated agreement regarding parenting time. "A
party seeking to modify custody must demonstrate changed
circumstances that affect the welfare of the children." Hand v.
Hand, supra, 391 N.J. Super. at 105. The record is devoid of any
facts reflecting a change in circumstances warranting the judge's
adjustment to the agreed-upon parenting time schedule.
Lastly, the judge denied Dawn's application for attorneys'
fees without examining the statutory factors typically considered
on a fee application. See N.J.S.A. 2A:34-23; see also R. 5:3-
5(c). The following factors are to be considered in determining
an award of counsel fees in family actions: whether one spouse
lacked independent financial means; the spouses' financial ability
to pay; whether the action was instituted in good faith; and
whether counsel incurred attorneys' fees in expectation of an
award. See Williams v. Williams, 59 N.J. 229, 233-34 (1971). Fees
in a family action are normally awarded to parties in unequal
financial positions to permit litigation on equal footing. See
Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992) (citing
Anzalone v. Anzalone Bros., Inc., 185 N.J. Super. 481, 486-87
(App. Div. 1982)). In denying Dawn's motion for counsel fees, the
judge failed to make findings as to the financial circumstances
of the parties, the parties' good or bad faith in filing the
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applications, and the parties' financial ability to pay an award
of counsel fees.
Family "judges are under a duty to make findings of fact and
to state reasons in support of their conclusions." Heinl v. Heinl,
287 N.J. Super. 337, 347 (App. Div. 1996); see R. 1:7-4(a).
"Meaningful appellate review is inhibited unless the judge sets
forth the reasons for his or her opinion." Strahan v. Strahan,
402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch,
240 N.J. Super. 441, 443 (App. Div. 1990)). "Naked conclusions
do not satisfy the purpose of [Rule] 1:7-4." Curtis v. Finneran,
83 N.J. 563, 570 (1980).
Because the judge failed to set forth findings of fact and
conclusions of law as required by Rule 1:7-4(a), we are compelled
to reverse the September 19, 2016 order and remand the matter to
the family court to develop a complete record. The judge may
require an appropriate period for discovery on the contested issues
and, if necessary, conduct a plenary hearing to resolve any
disputed material facts. The matter is remanded for the judge to
comply with the rule, and render findings of fact and conclusions
of law consistent with this opinion. We do not retain
jurisdiction.
Reversed and remanded.
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