July 3, 2012
FRANK J. SIEFERT, PLAINTIFF-APPELLANT,
NANCY S. SIEFERT, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0117-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 31, 2012
Before Judges Cuff, Waugh, and St. John.
Plaintiff Frank J. Siefert appeals from the Family Part's September 23, 2011 post-judgment order imposing sanctions. We vacate the order on appeal and remand to the Family Part for further proceedings consistent with this opinion.
We discern the following facts and procedural history from the record on appeal.
Frank and Nancy Siefert*fn1 married in 1984, and divorced in January 2011. At the time of their divorce, they executed a property settlement agreement (PSA), which was attached to their final judgment of divorce.
The PSA required the parties to exchange lists of the personal property they acquired during the marriage that each wanted to retain. The PSA further provided that if the parties could not agree on the distribution of the property within thirty days after Frank received Nancy's list, the matter would be referred to arbitration before Maryann Rabkin, an attorney, and that the parties would divide the cost of arbitration equally.
The PSA further provided for the disposition of the marital residence. Nancy was required to continue contributing to mortgage payments on the residence through the end of January 2011, after which they would become Frank's sole obligation. Frank was required to transfer $127,000 to Nancy as payment for her equitable interest in the residence, which payment was to be made by February 5, 2011. Nancy was obligated to execute a quitclaim deed transferring her interest in the residence to Frank once she received the payment and proof that Frank had satisfied the existing mortgage. The parties were to divide equally any escrow funds returned to them after Frank satisfied the mortgage.
Nancy filed a motion to enforce litigant's rights, which resulted in an order dated May 13, 2011. Nancy sought, among other relief not relevant to this appeal, to enforce (1) Frank's obligation to make the payment for her interest in the marital residence and (2) the arbitration requirement because the parties had been unable to agree on the disposition of all of the personalty. By the time the motion was decided, the first issue was moot because the payment had been made in the interim. However, the judge required Frank to pay interest for the period during which the payment was overdue. With respect to the personalty, the judge ordered the parties to contact Rabkin within ten days to arrange for the arbitration. Nancy was awarded $500 in counsel fees in connection with the motion.
On June 10, 2011, Nancy's attorney wrote to the motion judge, with a copy to both parties. He asserted that Frank had refused to comply with the arbitration requirement. Because Rabkin had gone on a lengthy vacation, the attorney asked the judge to appoint another arbitrator. Apparently at the request of the judge, Nancy's attorney ascertained that July 20 was the earliest date on which Rabkin would be available for an arbitration session, with other dates available thereafter. He conveyed that information to the judge in a letter dated June 29.
The motion judge brought the parties to court on July 13, at which time Frank appeared pro se.*fn2 The judge subsequently entered an order requiring the parties to participate in arbitration with Rabkin on or before July 31, with each party to provide a list of the items they wished to retain seven days in advance. The order further provided that any party failing to comply with its terms would forfeit his or her interest in the personalty and also bear the expenses of arbitration. The implementing order was filed on July 29.
On August 10, Nancy filed a second motion to enforce litigant's rights. She asserted that Frank had failed to participate in the arbitration, and sought an order compelling him to make all of the personal property she requested available to her for pickup. She also sought sanctions and counsel fees. In her supporting certification, Nancy alleged that Frank failed to contact Rabkin as required by the July 29 order.
On August 16, Frank filed his own motion to enforce litigant's rights. Frank asserted that Nancy had failed to pay her share of the January 2011 mortgage payment, but instead caused it to come out of the escrow account. He also alleged that she subsequently refused to send him his share of the escrow released when he paid off the mortgage. He sought an accounting of the escrow funds and payment of his share, with interest from the time the funds were received by Nancy. He also sought to enforce Nancy's obligation to provide him with the quitclaim deed for the former marital residence.
Frank, who asserted that he had not been aware of Nancy's motion when he filed his motion, responded to her motion on September 7. He certified that he had spoken to Rabkin's office twice on June 16 about dates for the arbitration, telling her and her assistant that he would make himself available in June or July.*fn3 Frank further certified that during these conversations, Rabkin informed him that she had given Nancy three possible dates for arbitration, and that she would let him know when Nancy selected a date. Frank also asserted that he spoke with Rabkin's office on July 28, and was told that Nancy had not yet provided a date. He attached telephone records demonstrating that he had telephoned Rabkin's office on June 16.
In addition, Frank attached three emails, dated June 24, July 8, and July 19, all of which reflected that he had been attempting to resolve the personalty issue with Nancy, and suggesting that they had reached agreement as to most if not all of the items. The July 8 email to Nancy stated that her items were available to be picked up. The July 19 email was sent to Nancy and her attorney.
Frank also attached a letter to Rabkin, dated August 5, in which he reiterated that he and Nancy had reached some agreement regarding the distribution of their personal property, and again provided Rabkin with his dates of availability in August. In a letter dated August 10, Rabkin acknowledged that she received Frank's letter, and offered multiple dates in August for arbitration.
On September 15, Nancy filed a responding certification challenging the veracity of Frank's claim that he contacted Rabkin's office on June 16, and asserting that, even if he did, he contacted Rabkin beyond the limit imposed by the judge's order. Nancy attached a letter from Rabkin, dated September 13, in which Rabkin stated that neither she nor her paralegal "Tina" spoke with Frank on June 16.
On September 20, Frank filed a certification in response to Nancy's September 15 certification. The judge found that Frank's certification was "received out of time and it [was] a sur-reply, not permitted by Court Rule." He refused to consider it.
On September 23, the motion judge, who had apparently issued a draft order as his tentative ruling, heard argument on both motions. The judge relied on Rabkin's September 13 letter, as well as "other sources," in finding that Frank had not contacted Rabkin as required by his orders. The judge told Frank:
I'm not buying your argument, okay? . . . I'm not buying it. I don't believe you, okay? I don't believe you, especially -- and I don't believe you . . . because I have other proofs from Ms. Rabkin and from other sources. You know it just doesn't add up.
The judge found that Frank had violated the orders.
In his September 22, order, which was a modified version of the "tentative decision," the judge set forth an extensive recitation of the parties' factual positions, but did not detail the specific factual conclusions on which his order was based.*fn4
He found that Frank failed to comply with his obligations under the PSA and post-judgment orders, and had therefore forfeited his right to any of the contested personalty. The order provided that if Frank's actions prevented Nancy from obtaining her requested personal property by October 31, there would be a monetary sanction of $100 per day for each day she was prevented from retrieving her property. The order also provided that, in the event arbitration was ultimately necessary, Frank would be solely responsible for the costs. The court ordered Frank to pay Nancy $2326 in attorney fees.
The judge ordered Nancy to determine the amount in the mortgage escrow and to pay Frank his half within ten days or upon receipt of the personal property, whichever was later. He also ordered Nancy to execute a quitclaim deed, but only after Nancy received the personal property she sought. The judge denied Frank's other requests for relief. This appeal followed.
On appeal, Frank argues that the motion judge erred by (1) failing to hold a plenary hearing to resolve disputed issues of fact, (2) awarding all of the disputed items of personalty to Nancy, (3) refusing to consider the facts set forth in his last certification, (4) tying the return of the mortgage escrow and filing of the quitclaim deed to the issue of the personalty, and (5) awarding counsel fees without performing a proper analysis of the applicable law to the circumstances of the case.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Although similar deference is accorded to the factual findings of those judges following an evidentiary hearing, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citations omitted), there was no plenary hearing and consequently no judicial factfinding of the type entitled to such deference. Finally, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
There were two issues before the motion judge in September 2011. The first issue related to the disposition of the parties' personal property. The second concerned Frank's right to receive the quitclaim deed for the former marital residence and his share of the escrow from the mortgage on that residence that he had satisfied. Although both issues were governed by the terms of the PSA, they were not interrelated and were governed by separate provisions of that agreement.
With respect to the personalty, there were clearly genuine issues of material fact concerning whether the parties had reached an agreement as to all or most of the property and as to the nature of Frank's efforts to participate in the arbitration called for by the PSA. Giving Nancy's papers the benefit of all reasonable inferences, there had been no agreement and Frank's conduct was dilatory. However, giving Frank's papers the benefit of all reasonable inferences, there had been an agreement, he had taken reasonable steps to participate in the arbitration, assuming one was even needed, and it was Nancy's conduct that resulted in the impasse.
Despite the disputed factual issues, the motion judge proceeded to decide the personalty issue without holding a hearing. In doing so, he relied in significant part on Rabkin's September 13 letter, rather than certifications supporting the factual assertions made in that and other letters. In addition, the judge relied on what he characterized as "other sources," the nature and content of which were not disclosed by the judge and are not otherwise reflected in the record. With respect to communication between Frank and Rabkin or her staff, the judge ignored the import of Frank's telephone records reflecting that communications had taken place. Finally, the judge disregarded Frank's assertions that he and Nancy had resolved most or all of the issues related to the personalty and that Nancy had changed her position only after the agreement had been reached.
"'[J]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
We cannot condone the imposition of sanctions, including the forfeiture of personal property and imposition of significant counsel fees, based upon the resolution of important factual issues on the basis of conflicting certifications, disputed factual assertions in letters rather than certifications, and "other sources" the nature and content of which are unspecified. In our view, the judge's action was arbitrary because it was based upon an improper foundation and without careful consideration of the underlying facts and circumstances.
We now turn to the issues related to the former marital residence.
Although Frank may have been dilatory with respect to the payoff of the mortgage, there is no dispute that he did satisfy the indebtedness secured by the mortgage. As a result, he was entitled to receive the quitclaim deed and his share of the proceeds of the escrow funds returned by the mortgagee. Nancy articulated no reasonable basis for withholding them.
The motion judge improperly tied Frank's right to receive the quitclaim deed and escrow funds to the distribution of the personalty. Those issues are not related to each other. Significantly from our point of view, the delay in putting title to the residence solely in Frank's name put his interest in the property at risk, inasmuch as Nancy's actions prior to filing of the deed had the potential to cloud the title. In addition, the delay prevented Frank from accessing his equity in the property.
We conclude that the judge's action in tying the two issues together was arbitrary and unwarranted. First, as noted, his action put Frank's interests at risk. Second, the judge had already imposed sanctions on Frank and put further sanctions in place to enforce his order in the event of Frank's noncompliance. The added sanction of withholding relief to Frank, especially with respect to the quitclaim deed, was excessive and unnecessary. Finally, the judge never explained why Nancy was entitled to full enforcement of her rights before she would be required to comply with her obligations to Frank, whereas Frank was not. As indicated above, Frank's right to relief was clearer than Nancy's on the record then before the judge.
The judge's award of counsel fees was also problematic. First, we question whether they were warranted at all, an issue that will have to be determined on remand. Second, even if they were warranted, the judge failed to explain his reasons adequately.
An allowance for counsel fees is permitted in a Family Part action, and governed by Rule 5:3-5(c) and Rule 4:42-9. To determine whether and to what extent such an award is appropriate, the court must consider:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
See also Williams v. Williams, 59 N.J. 229, 233 (1971).
Although the judge cited the relevant court rule and case law, he did not explain his analysis or how he reached the amount awarded. We cannot review an award of counsel fees that is not supported by such an analysis. It is not enough for a judge to say only that he considered the factors.
For the reasons outlined above, we vacate the order on appeal in its entirety, including the sanctions contained in it.
We remand to the Family Part*fn5 for de novo reconsideration of the issue of the personalty, unless it has already been resolved amicably by the parties. Such reconsideration shall include a plenary hearing to resolve any genuine issues of material fact necessary for resolution of those issues. If such a hearing is necessary, the judge can consider whether sanctions and an award of counsel fees are warranted.
If the issues related to the former marital residence have not been resolved, we direct immediate entry of an order enforcing Nancy's obligations to provide the quitclaim deed promptly, an accounting of the escrow funds, and payment of Frank's share of those funds to him. In the event the remand judge considers whether to award any sanction or fee to Nancy in connection with the personalty, he or she shall also take Nancy's conduct with respect to the deed and escrow into account in fashioning any such remedy.
Vacated and remanded.