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Margaret Ducey v. Stephen Ducey

February 2, 2012

MARGARET DUCEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
STEPHEN DUCEY, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2977-06.

The opinion of the court was delivered by: Lihotz, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 16, 2011 -

Before Judges Lihotz, Waugh and St. John.

The opinion of the court was delivered by LIHOTZ, J.A.D.

In this complex matrimonial matter, the parties' cross-appeals challenge various provisions contained in an amended final judgment of divorce (JOD) that ordered the payment of support and the equitable distribution of assets. Without addressing the parties' arguments on the merits of these issues, we are constrained to reverse, as we reject the procedure employed by the trial judge, who, after presiding over a fourteen-day trial, entered a final JOD advising the court's "underlying opinion will be sent shortly." Several months later, when the trial judge released the reasoning for her prior decision, the substantive provisions diverged significantly from those in the JOD and counsel was ordered to prepare an amended JOD. Although the trial judge included factual findings for many of the conclusions set forth in the amended JOD, no explanation was given for the wholesale alteration of the initially ordered provisions in the JOD. We reject any suggestion that the trial judge's actions in this regard fall within her reasoned discretion, as discussed in Lombardi v. Masso, 207 N.J. 517 (2011). Accordingly we reverse and remand for a new trial before a different Family Part judge.

The parties were married on June 19, 1993, and have four minor children. Plaintiff Margaret Ducey, formerly a teacher, was a full-time homemaker. Defendant Stephen Ducey worked as an orthopedic surgeon, and owned a forty-nine percent interest in a medical practice. The parties separated in May 2006.

Plaintiff filed her complaint for divorce on June 12, 2006, which was met with defendant's counterclaim for divorce. Plaintiff moved for pendente lite relief. The court ordered defendant to pay all expenses necessary to maintain the former marital home; to continue all health and dental insurance for plaintiff and the children at his expense; to satisfy plaintiff's monthly automobile expenses, including insurance and gasoline; and to provide plaintiff and the children with monthly unallocated support, subject to her obligation to account for the use of the funds.

The parties' two significant assets were the marital home and defendant's interest in his medical partnership. The order included provisions to restrain the parties' alienation of assets, delineate release of discovery, and appoint a joint forensic accounting expert to discern defendant's cash flow and value his partnership interest in the medical practice. In addition, the court ordered a joint real estate appraiser be retained to provide an expert valuation of the marital home. Thereafter, motions were filed resulting in orders allowing the release of funds enabling the parties to retain and provide payment to individual forensic experts along with other relief in preparation for trial. Discovery ended, and trial commenced on September 8, 2008, eventually concluding on October 8, 2008.*fn1

During trial, the three forensic experts testified regarding their opinion of the value of defendant's partnership interest. The parties also testified and introduced numerous documents into evidence.

On May 13, 2009, seven months following trial, the Family Part judge issued a JOD. The transmittal letter accompanying the JOD simply stated:

Dear Counsel:

Enclosed herewith is the Judgment of Divorce in the above referenced case. The underlying opinion will be sent shortly. Upon receipt of same, parties are to prepare a ...


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