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Bania v. Bania


June 23, 2008


On appeal from Superior Court of New Jersey, Family Part, Passaic County, Docket No. FM-16-799-02.

Per curiam.


Argued May 21, 2008

Before Judges Lihotz and Simonelli.

Plaintiff Kent Bania appeals from the provisions of a March 16, 2007 Family Part post-judgment order awarding attorney's fees and costs to defendant and allocating the obligation to pay expert fees. He also challenges a related order dated July 12, 2007. We conclude the motion judge failed to engage in the requisite factfinding to enable our review. Accordingly, we reverse and remand.

We dispense with a detailed factual recitation, but broadly state the nature of the parties' dispute to provide the context for our determination. The subject of the March 16, 2007 order centered on compliance with the terms of the Final Judgment of Divorce (FJOD) filed on March 6, 2003. The FJOD required the execution of qualified domestic relations orders (QDRO) to equitably distribute the parties' respective pension interests. In addition to awarding defendant her share of plaintiff's pension, the FJOD required plaintiff "to name [defendant] as a survivor beneficiary on his pension up to the amount that she is to receive by way of QDRO." The parties learned that the terms of plaintiff's pension obviated the ability to award a survivorship benefits using a QDRO.

A joint expert examined the issue and rendered alternatives to accomplish the parties' stated intention. A dispute arose as to the most acceptable methodology. In her application returnable on March 16, 2007, defendant sought implementation of one recommendation offered by the expert. Plaintiff objected and sought additional time to consult with the expert because he saw the expert's recommendations for the first time when he read defendant's motion.

The motion judge denied, without prejudice, defendant's request to implement the specific recommendation. Plaintiff was permitted the opportunity to contact the expert in an effort to reach agreement on the form of an acceptable QDRO and any accompanying order, as necessary. The motion judge required plaintiff to pay half of the expert's fees and awarded defendant $2,500 in attorney's fees and costs. Other than noting his authority to do so, the judge articulates no basis for these determinations.

Counsel did not reach agreement resolving the appropriate orders to address the distribution of the parties' interests in plaintiff's pension. A telephone conference with the judge was held on June 4, 2007. The conference was not recorded. Thereafter, a dispute arose as to the form of the order.

On July 11, 2007, the motion judge conducted a hearing to review two proposed forms of order. After considering the parties' arguments, he entered an order that required plaintiff to execute option 4 of his pension alternatives upon retirement. This option would provide defendant $2,343 per month. The order allowed future adjustments to the amount, as warranted, and also granted either party the opportunity to challenge the monthly benefit upon plaintiff's actual retirement, if circumstances demonstrated the sum was incorrectly calculated.

Rule 1:7-4(a) denotes a trial court's obligation to make findings of facts and state conclusions of law "on every motion decided by a written order that is appealable as of right." The oft-cited instruction by the Supreme Court regarding trial court factfinding bears repeating:

[T]he failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court."

Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976).

Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. [Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]

Our cases have repeatedly stressed the importance of a trial judge's responsibility to provide findings and conclusions to assure informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986).

Omission of this duty is particularly problematic where the decision is discretionary, such as the award of counsel fees or an order to pay expert costs. The standards set forth in our statutes and cases must be addressed by the judge to support such a discretionary award. Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). Without findings relevant to the legal standards, the litigants and the reviewing court "can only speculate about the reasons" for the decision. Rosenberg, supra, 214 N.J. Super. at 304.

We also note that support for the conclusion on the substantive dispute, recited in the July 12, 2007 order, remains a mystery. First, the Family Part judge failed to make a verbatim record of the proceeding as required by Rule 1:2-2. We reject the suggestion that the hearing addressed a "ministerial act," to settle the form of the appropriate order. Thus, the court in its discretion could dispense with a record. R. 1:2-2. We do not glean from the March 16, 2007 transcript, the motion judge's articulation of a decision to grant the relief that was contained in the latter order. Therefore, a record must be made when a determination results in substantive relief.

Second, the motion judge did not include an oral opinion or a statement of reasons with the July 12 order, leaving this court, counsel, and the litigants without explanation of the judge's ruling. Here, the methodology used to properly fix defendant's interest in plaintiff's pension was disputed. The joint expert offered "several possibilities, depending upon [plaintiff's] actual date of retirement" and the calculations were bottomed on four assumptions. Also relevant is the fact that defendant sought this exact relief on March 16, 2007, but the Family Part judge denied the request, without prejudice. We disagree with defendant's suggestion that the March 16 record states a clear intent to grant defendant relief, but delayed entry of that determination solely to allow plaintiff the opportunity to consult with the expert. On July 12, defendant renewed the request for the same relief. This time what had previously been denied, without prejudice, was granted. Further explanation for this determination was necessary.

We infer from the pleadings presented and comments made on the record during the March 16 hearing that the Family Part judge had a sense of familiarity with this matrimonial matter and "[w]e are not unsympathetic to Family Part judges who are frustrated by parties failing to comply with court orders." Entress v. Entress, 376 N.J. Super. 125, 132 (App. Div. 2005). Nevertheless, reliance on past experiences with a matter cannot substitute for the obligated factfinding to substantiate the conclusions set forth in a current order.

Thus, the court's award of counsel and expert fees made following defendant's application presented on March 16, 2006, and the order dated July 12, 2007, cannot stand. We reverse these provisions and remand this matter to the motion judge for full factfinding and assessment of the evidential basis for the conclusions reached. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005); Barnett & Herenchak, Inc. v. State of New Jersey, Dep't of Transp., 276 N.J. Super. 465, 471-73 (App. Div. 1994).

We briefly address plaintiff's remaining arguments. First, we reject the suggestion that the July 12, 2007, proceeding violated Rule 2:9-1, which deprives the trial court of jurisdiction after a notice of appeal was filed, except for enforcement of orders pursuant to Rule 1:10. The terms of the March 16, 2007 order communicate its interlocutory nature and the need for further court intervention if a consent order could not be reached. Second, the suggestion that the March 16, 2007 order was entered in contravention of the requirements of Rule 4:50-1 is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Finally, there is no basis to substantiate that an appearance of bias or prejudice results from the judge's prior involvement with this matter.

Reversed and remanded.


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