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Susan D. Shechter v. Reuben Shechter

October 12, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-001660-03.

Per curiam.


Argued October 3, 2011

Before Judges Sabatino and Fasciale.

In this post-divorce judgment matrimonial case, defendant-father appeals from that part of a September 17, 2010 order denying his motion to adjust his limited duration alimony (LDA) obligation. The motion judge, now retired, determined that changed circumstances existed to reduce the father's child support obligations, but made insufficient findings to explain why an adjustment to LDA was unwarranted. We reverse, remand, and direct the court to examine the record anew.

The parties were married for twenty-three years, have two daughters together, and were divorced on June 22, 2004. The plaintiff-mother was awarded custody of the daughters, and the father agreed to pay child support and twelve years of LDA.

The father contended that since March 2009 he was unemployed. As a result, he filed a motion in July 2010 to modify his support obligations and emancipate one of the daughters. The mother filed a cross-motion in aid of litigant's rights seeking enforcement of his support obligations. The parties filed certifications and disputed whether there existed changed circumstances warranting a modification of the father's support obligations.

The motion judge denied the parties' joint request for oral argument, and ruled on the papers. The judge modified the father's proposed form of order, adding several paragraphs of handwritten comments on the final page. The judge emancipated the daughter, reduced the father's child support obligation temporarily due to changed circumstances, denied the father's request to modify his LDA obligation, ordered the father to advise the mother when he returned to work, and required the probation department to make certain adjustments to the father's account.

On appeal, the father argues that the judge erred by (1) denying his request to modify his LDA obligation despite finding that changed circumstances warranted a temporary reduction in his child support payments; (2) denying the parties' joint request for oral argument; (3) failing to make requisite findings of fact and conclusions of law; and (4) failing to conduct a plenary hearing. There is no cross appeal by the mother.

Ordinarily, the court retains jurisdiction to modify marital agreements based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 148-49 (1980); N.J.S.A. 2A:34-23(c) (indicating that "[a]n award of alimony for a limited duration may be modified based . . . upon changed circumstances"). Our standard of review requires that we defer to the facts found by a Family Part judge "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Our ability to employ this standard, however, has been hampered because the judge did not make sufficiently detailed findings of fact and conclusions of law.*fn1

Rule 1:7-4(a) requires that "on every motion decided by a written order" the judge must "by an opinion or memorandum decision, either written or oral, find the facts and state [his or her] conclusions of law[.]" "The rule requires specific findings of fact and conclusions of law[.]" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2012). Although the judge modified the order to reflect his rulings, he did not sufficiently adhere to this rule.

The judge wrote on the order that "alimony under [the Judgment of Divorce] is set as LDA for twelve years - no basis to adjust, modify or terminate." Concerning the father's child support obligation, however, he wrote that the "court [is] satisfied there is [a] change in circumstances to temporarily adjust child support on income basis[.]" Without specific findings of fact and conclusions of law, we are unable to reconcile the judge's finding that there was a change of circumstances for purposes of child support, but not for purposes of alimony.

Unfortunately, because the judge retired, we cannot remand this matter for him to provide an amplification of his reasons. The parties continue to dispute whether circumstances have changed since the judge entered the order under review. As a result, we remand the matter for a fresh look, particularly in light of the current and possibly evolving financial circumstances of the parties, and to allow a new motion judge to determine whether discovery and perhaps a plenary hearing would be necessary to resolve the ...

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