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Ellison v. West

February 13, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FD-07-7225-05.

Per curiam.


Submitted November 26, 2007

Before Judges Parrillo and Alvarez.

This appeal by defendant, Ronald West, is from an order of child support payable to plaintiff, Carolyn Ellison, on behalf of their child, who was born September 10, 2004. Plaintiff cross-appeals from the motion court's denial of her request for counsel fees. Although the cross-appeal was initially filed by plaintiff pro se, she subsequently secured the services of counsel for purposes of representation on the appeal. Defendant failed to respond to the initial support application as a result an order requiring him to pay $662 weekly, plus $50 towards arrears, was entered by default*fn1 on August 19, 2005. On May 15, 2006, defendant filed a motion requesting downward modification, which relief was denied on October 12, 2006. We reverse and remand.

We are bound by a trial court's findings "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference is given to the family court because of its acknowledged "special expertise in the field of domestic relations." Id. at 412 (citing Brennan v. Orban, 145 N.J. 282, 300-01 (1996)). In this case, however, we are unable to review the motion judge's decision in any meaningful fashion as she made neither findings of fact nor reached conclusions of law.

For example, defendant complained that on occasion, double the amount of weekly support was deducted from his salary by way of wage attachment. The judge ordered that the arrears were to be "zero[ed]" out, and directed that only $662 could be withdrawn in any week, without making the necessary assessment as to whether credits or arrears were owed on the child support account. Another example is the reduction ordered in the amount of life insurance coverage to be maintained by defendant, from $500,000 as per the August order, to $150,000, which decision was made without any explanation whatsoever. The motion judge summarily directed that each party should pay his or her own counsel fees without factoring in that this was plaintiff's third time in court since 2005, due solely to defendant's conduct. Rule 5:3-5(c) directs that attorney fees may be granted in family court matters after consideration of nine different factors including "any other . . . bearing on the fairness of the award." None were considered by the motion judge.

The most egregious omission, however, was the failure to make findings as to the amount of support itself, which was the entire purpose of the proceedings. The August 19, 2005 order was premised on the prior motion judge imputing $150,000 in annual income to defendant. At the October 12, 2006 hearing, defendant disputed those figures and plaintiff, based on discovery exchanged between the parties prior to the hearing, agreed that defendant earned $119,000 per year and acknowledged that she earned $120,000. Despite the significant difference in imputed income versus actual income, the child support amount did not change.

In a hybrid proceeding - more than oral argument but less than a plenary hearing - the court engaged in an informal dialogue with the parties and their respective counsel and left the amount payable at the level previously ordered without any explanation whatsoever. The motion judge did say that she would rely upon her law clerk's worksheets over those prepared by counsel "because this is what she does everyday," without even indicating that she had independently reviewed the information.

Rule 1:7-4 states that in non-jury trials, "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury." The court explained in Curtis v. Finneran, 83 N.J. 563, 569 (1980) that "the role of the trial court . . . is to find the facts and state conclusions of law." When a court fails to make necessary findings, it performs "'a disservice to the litigants, the attorneys and the appellate court.'" Id. at 569-70 (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). Because of the manner in which the proceeding was conducted, a new plenary hearing is required.

In preparation for the October 12 hearing, the parties engaged in discovery. Unfortunately, this information will have to be updated. The matter is hereby remanded for the necessary findings of fact and conclusions of law to be made as required on defendant's modification application and plaintiff's cross-motion for enforcement and counsel fees retroactive to October 12, 2006, forward to the date of the hearing. In addition, an audit shall be conducted by the Probation Department back to October 12, 2006, to determine what the arrears or credits were on that date so a fair determination can be made as to whether defendant overpaid or still owed arrears.

One final note. As has been previously said, "[w]e are mindful of the heavy burden on Family Part judges . . . [b]ut we are troubled by the informality of the proceedings." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005) (citations omitted). Although no doubt made with the best of intentions, the judge's remarks on the subject of defendant's relationship with the parties' child were gratuitous and too familiar, and were simply not conducive to an informed and impartial proceeding.

The October 12, 2006 order is reversed and the matter is remanded for a plenary hearing on defendant's request for downward modification and plaintiff's ...

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