Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bania v. Bania

June 23, 2008

KENT BANIA, PLAINTIFF-APPELLANT,
v.
GLORIA BANIA, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.