MARIE A. RIVERA v. ANGEL D. RIVERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4678-10T4

MARIE A. RIVERA,

Plaintiff-Appellant,

v.

ANGEL D. RIVERA,

Defendant-Respondent.

_________________________________

January 7, 2013

 

Submitted September 24, 2012 - Decided

 

Before Judges Fasciale and Maven.

 

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Somerset County, Docket No. FM-18-387-04.

 

Marie A. Rivera, appellant pro se.

 

Respondent has not filed a brief.

PER CURIAM

Plaintiff Marie A. Rivera1 appeals from the September 7, 2011 Family Part order vacating, among other things, a certain money judgment entered in her favor and against defendant. Following our review, we conclude that the motion judge did not render appropriate findings of fact and conclusions of law. We remand the matter for additional proceedings consistent with this opinion.

Because the post-judgment motion practice between these parties has been extensive, only a summary of the relevant facts and orders follows.2 The parties divorced on December 22, 2004, after more than fourteen years of marriage. The Dual Final Judgment of Divorce awarded defendant residential custody of their minor children, A.R. and N.R., then fourteen and seventeen-years-old, respectively. Plaintiff was obligated to pay child support, and the parties stipulated that college contributions would be paid proportionate to their respective incomes and assets after the college accounts for each child were exhausted. Regarding equitable distribution, plaintiff was entitled to receive, among other things, a portion of defendant's pension.3

Subsequent to the divorce, plaintiff was found to be non-compliant with her support obligations resulting in her equitable distribution monies being held in escrow for the payment of child support.

Defendant continuously failed to pay plaintiff her portion of the pension fund pursuant to the 2005 QDRO. In an August 10, 2007 order, Judge Thomas Dilts, recognizing that it was the third court order mandating defendant s compliance, ruled that "if [defendant] does not comply or provide proof of compliance with regard to the $5699.52 owed Ms. Castelli not later than August 30, 2007[,] sanctions shall be imposed of $100 per day for each day thereafter that same not complied with." Defendant also was ordered to comply with prior orders that required him to provide certain Fidelity Investments (Fidelity) account information to Ms. Castelli in order to quantify the amount to be distributed and to prepare a QDRO for this distribution by August 30, 2007. That provision was also subject to a $100 per day sanction if defendant did not comply.

Plaintiff filed a motion seeking compliance with the August 2007 order and emancipation of the parties' oldest child, N.R. On April 11, 2008, Judge Dilts decided the unopposed motion. In relevant part, the judge found defendant in violation of litigant s rights for failing to comply with the December 16, 2005 QDRO, as well as the April 5, 2007 and August 10, 2007 orders requiring payment of the pension monies and financial disclosure of the Fidelity account. Judgment was entered against defendant and in favor of plaintiff in the amount of $30,099.52, which represented plaintiff's equitable distribution of defendant's pension pursuant to the December 16, 2005 QDRO, ($5699.52), plus accumulated sanctions since August 7, 2007. Defendant was again directed to provide plaintiff the Fidelity account statement, showing its balance as of October 2003 -- the date of the divorce complaint. The Court ruled that

[i]f he does not do so by May 11, 2008, then a judgment shall be entered against him and in favor of Ms. Castelli in the amount of $102,100, upon application by Ms. Castelli. The court finds that this sum represents $80,000 (what Ms. Castelli alleges she is owed from this account) plus interest in the amount of $100 per day since August 30, 2007.

 

Plaintiff's request to emancipate N.R. was granted and her child support obligation was reduced from $585 to $300 monthly.

On June 20, 2008, the court considered defendant's motion for reconsideration and plaintiff's cross-motion. At defendant's request, the order emancipating N.R. was vacated due to proof that the child was still in school. Child support was increased to $585 per month. Defendant's request for college contribution from plaintiff was denied but subject to reconsideration upon proof of the exhaustion of N.R.'s college fund account and the filing of a subsequent motion. Paragraph three of the April 2008 order, which required defendant to provide plaintiff with the Fidelity account statements, was vacated upon defendant informing the court that plaintiff's escrow account had already received a deposit of $15,113.61, one-half of the balance in that account. Lastly, the court stayed enforcement "on all prior orders until September 30, 2008 to give [defendant] the opportunity to file a Rule 4:50 motion." Plaintiff's substantive requests were denied.

The last order relevant to this appeal was entered on August 20, 2008, in response to a motion for reconsideration of the June 2008 order that plaintiff filed and defendant's cross- motion. The court found that plaintiff presented information sufficient to support her claim that the court erred in vacating paragraph three of the April 2008 order, which required defendant to provide Fidelity account statements or be subject to a Judgment. She asserted that defendant and the court mistakenly confused two accounts, the Fidelity account and a TD Waterhouse account, from which defendant improperly received $15,113.61 pursuant to a September 2006 order.4 The court found:

Ms. Castelli has provided sufficient proof that the $15,113.61 deposited into the escrow account was from the TD Waterhouse account. . . . Additionally, her [e]xhibit established that Mr. Rivera was also issued a check for $15,113.61 from the TD Waterhouse account. Therefore, Ms. Castelli's request to reconsider paragraph[s] 4 and 5 of the June 20, 2008 order is hereby granted.

 

The court finds that Mr. Rivera was improperly awarded half of Ms. Castelli's share of the TD Waterhouse [account] in the amount of $7,556.80 pursuant to the September 22, 2006 order. Therefore, the court finds that Ms. Castelli shall receive a credit toward her obligation to pay college expenses . . . of $7,556.80. As to paragraphs 4 and 5 of the June 20, 2008 order, the court finds that these paragraphs shall be vacated and paragraph 3 of the April 11, 2008 order shall be reinstated and amended to read as follows: "Mr. Rivera shall immediately provide Ms. Castelli with a bank statement for his 401K Fidelity account showing the value as of October 2003, the time of filing of the divorce complaint, so that her portion can be determined. The court finds that Ms. Castelli shall receive a credit toward her contribution to college expenses for the amount of her portion of the Fidelity account."

 

The court finds that this reinstatement of paragraph 3 of the April 11, 2008 [order], shall be subject to Mr. Rivera's anticipated filing of a Rule 4:50 motion for relief from the April 11, 2008 order. If Mr. Rivera does not provide Ms. Castelli with the Fidelity account statement by September 30, 2008 (or if he does not file a Rule 4:50 motion pursuant to paragraph 9 of the April 11, 2008 order), then Ms. Castelli shall receive a credit toward her obligation to contribute toward college expenses in the amount of $102,100. The court finds that this sum represents $80,000 (what Ms. Castelli alleges she is owed from the Fidelity account) plus interest in the amount of $100 per day since August 30, 2007. This is the amount set forth in the April 11, 2008 order. After all college expenses are paid for, then Ms. Castelli shall receive a judgment for any remaining monies owed her upon application to the court.

 

The court finds that Mr. Rivera has not established that Ms. Castelli was awarded her portion of his Fidelity account or that her portion was deposited into the escrow account.

 

[(Emphasis added).]

 

Lastly, the court ordered a plenary hearing on the issue of the parties' contributions to the children's college expenses to be held on or after November 1, 2008.

In her appellate appendix, plaintiff includes a copy of a motion for reconsideration of the August 20, 2008 order and a motion for relief from college contributions for the two children. It is not clear, however, if the motions were actually filed and, if so, whether the trial court ever addressed these motions. On or about December 2, 2008, defendant withdrew his earlier request for college contributions. As a result, the plenary hearing was not held.5

In November 2008, plaintiff received a Writ of Execution for the amount of $30,992.526 securing Judgment J146375, pursuant to the April 11, 2008 order.

On April 27, 2011, the trial court entertained cross-motions, where plaintiff sought, among other things, the emancipation of the two children and enforcement of prior orders, and defendant sought to vacate the April 11, 2008 Judgment order.7 Plaintiff participated telephonically from Egypt and defendant appeared by counsel. The court denied the emancipation but established the date when emancipation would occur for both children upon their graduation. The judge also vacated and discharged the April 11, 2008 Judgment.

On appeal, plaintiff contends that the court erred by failing to address the Newburgh8 factors regarding college contributions; vacating and discharging the judgment; and permitting defendant to keep any excess escrow monies following the emancipation of their children.

Our review of the record makes clear that the issues raised by the parties, particularly those pertaining to plaintiff's pursuit of equitable distribution and defendant's continued non-compliance with orders to provide plaintiff with the Fidelity account statements, require more than the cursory attention given by the motion judge. The entire proceeding, lasting a mere seven minutes, is devoid of any discussion of the issues raised in the parties' motions and does not address the long demanded calculation of plaintiff's entitlement to equitable distribution from the Fidelity account. The following discussion transpired during the motion hearing:

The Court: Mr. Stratis says that there's three issues. One is child support and he says that they're ready to, at this point, say they don't expect to get any child support from you and they're not seeking any further child support from you, Ma'am.
 
Ms. Castelli: Okay.
 
The Court: So that takes care of that so Number 1, I'm going to rule that the -- we'll clean this up -- that first of all I'm going to rule that the children will become emancipated --
 
Ms. Castelli: What does that take? A week or -- he was -- (indiscernible)
 
The Court: Okay. Wait a minute. Each daughter will become emancipated on the first of the month following their graduation from a four-year college. Secondly -- and therefore upon emancipation, child support --
 
Ms. Castelli: Okay.
 
The Court: -- obligation ceases.
 
Ms. Castelli: That's great (phonetic).
 
The Court: And then I'm going to rule as follows.

 

Ms. Castelli: Wonderful.

 

The Court: First of all, so that there's no question about it, any prior orders which dealt with emancipation -- first of all, [N.R.] (phonetic) is [sic] declared to be un --

 

(Phone call disconnected)

 

. . . .

 

(Phone call reconnected)

The Court: Okay. We're back. We lost you. Okay. And then I'm going to rule --
 
Ms. Castelli: I know (indiscernible) -- not a good connection.

 

The Court: I know. I know. That's alright. I'm going to rule --

 

Ms. Castelli: Okay. Last year would be a four-year, yes.

 

The Court: Okay. And then I'm going to rule that the un-emancipation of [N.R.] -- I'm sorry -- that the emancipation of [N.R.] is vacated --
 
Ms. Castelli: Uh-huh.
The Court: -- notwithstanding any prior orders to the contrary. It's vacated, nunc pro tunc as of April 11, 2008. I think that's when she was declared emancipated.
 
Mr. Stratis: All right. Just so the record is clear, she's not emancipated --
 
The Court: She's not --
 
Mr. Stratis: -- until she graduates the first --

 
The Court: Exactly.
 
Mr. Stratis: Okay.
 
The Court: I'm declaring her to be unemancipated, nunc pro tunc, that date, and child support is reinstated, the $585 figure --
 
Ms. Castelli: Okay.
 
The Court: -- as of that date, notwithstanding any prior order to the contrary. I'm trying to clean everything up in one order.
 
Mr. Stratis: Thank you.

 

The Court: So if somebody goes into the file, they don't have the problem I had today. And then thirdly, while I believe the judgment had been vacated, I will specifically find that the judgment granted --
 
Ms. Castelli: Judge -- okay. That was confusing.
 
The Court: Okay. Yeah, that is confusing. You're right. The judgment granted in the April 11, 2008 order and filed under judgment [J146375] is vacated and the Clerk of the Court is to discharge that judgment. Now that should solve your problem.
 
Mr. Stratis: Yes.
 
The Court: All right. Good.
 
Mr. Stratis: I think it should do, here. Yes, your Honor. Thank you.

 

The Court: Okay. And I don't think there's anything else for me to deal with at this point . . .
 

. . . .

 

Mr. Stratis: I'm very impressed.

 

The Court: You're impressed?

 

Mr. Stratis: With the fact that you're able to delve into this file and get as much out of it [as] you did.

 

The September 7, 2011 order memorializing the proceeding reads:

This matter was originally brought before the court by a motion by [t]he [d]efendant seeking contribution from the [p]laintiff towards the College costs for the parties two daughters. By order of Judge Dilts the matter was scheduled for a Plenary Hearing.

 

Prior to the Plenary Hearing, the [d]efendant, by letter dated December 2, 2008, withdrew his request for contribution from the [p]laintiff, which was confirmed by Order of Judge Dilts dated December 3, 2008; therefore[,] this issue is moot.

 

By Motion and Cross-Motion[,] the issues of emancipation of the two [children] was raised as well as the vacating of a Judgment granted in an Order of Judge Dilts dated April 11, 2008 and which was docketed in Trenton, New Jersey as J146375.

 

The Court finds, on this 7th day of September, 2011, that the two daughters shall be deemed emancipated on the first day of the month following the girls' respective graduations from a four-year college.

 

The court further Orders that the Judgment docketed as J146375 is vacated and discharged.

 

Reasons:

On June 20, 2008, Judge Dilts signed a Order vacating paragraph 3 of the Order dated April 11, 2008, which entered Judgment in favor of the [p]laintiff. Then, by Order dated August 20, 2008, Judge Dilts Ordered paragraph 3 of the April 11, 2008 Order be reinstated but amended. As a result of the amended paragraph, the Judgment remained vacated.

The scope of appellate review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. "Furthermore, matrimonial courts possess special expertise in the field of domestic relations." Id. at 412. It stands to reason, however, that when a determination made by a Family Part judge is not based upon "adequate, substantial, credible evidence," ibid., no deference is owed.

We appreciate the practical difficulties facing Family Part judges who preside over emotionally-charged cases involving self-represented litigants. Their motions, exhibits and legal arguments may not be presented in as orderly a manner as that submitted by an attorney. Nevertheless, "the business of the courts is to finalize disputes. . . . [J]udicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial." Parish v. Parish, 412 N.J. Super. 39, 54 (App. Div. 2010).

A judge has a duty to make findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right." R. 1:7-4(a).

Furthermore, "[m]eaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). "The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996).

We glean from the transcript of the oral decision, and the order that followed, that the claims presented were not addressed in a full and complete manner but rather in a conclusory fashion. As to plaintiff's first claim, she maintains that the court failed to apply the Newburgh factors. This claim lacks merit because, as the trial judge noted, defendant withdrew his request and no longer sought contribution from plaintiff for college expenses, hence there was no reason to conduct this analysis. However, as a result of terminating this particular obligation, and to the extent that there is any money remaining in the escrow account for that purpose, plaintiff may be entitled to a portion of the funds as they were deposited there from her equitable distribution. The court did not address this matter. Further, it is not clear from the record what the status of plaintiff's entitlement from the Fidelity account is or whether that issue was ever resolved. The August 2008 order provides that

[i]f Mr. Rivera does not provide Ms. Castelli with the Fidelity account statement by September 30, 2008 (or if he does not file a Rule 4:50 motion pursuant to paragraph 9 of the April 11, 2008 order), then Ms. Castelli shall receive a credit toward her obligation to contribute toward college expenses in the amount of $102,100 . . . .

 

. . . .

 

After all college expenses are paid for, then Ms. Castelli shall receive a judgment for any remaining monies owed her upon application to the court.

 

As to the remaining issue the court addressed, vacating the judgment, we cannot properly assess the motion judge's decisions. First, it appears that he failed to fully consider the prior judge's reasons for ordering the judgment, the basis for the Writ of Execution, and the impact of vacating the judgment on plaintiff. Second, the reasons stated for vacating the judgment were insufficient and non-specific, lacking any findings of fact and conclusions of law, particularly with respect to the claims raised by plaintiff. Lastly, given these scant determinations, we cannot discern the judge's intent when he stated to counsel, "The judgment granted in the April 11, 2008 order . . . is vacated and the clerk of the court is to discharge that judgment. Now that should solve your problem." (Emphasis added). It is not evident to us what problem counsel had.

Accordingly, we vacate the September 7, 2011 order without prejudice, and remand. The court may, in its discretion, re-open the motion hearing in order to make the necessary findings of fact and conclusions of law with respect to the motions decided by it. The remand proceedings and the trial court's amplified decision shall be completed within 45 days from the filing date of this opinion, unless the judge advises this court by letter that additional time to complete the remand is reasonably necessary.

Vacated and remanded. We do not retain jurisdiction.

 

 

1 Ms. Rivera is also referred to by her maiden name, Castelli, in earlier orders.

2 The orders relevant to this appeal are dated in 2007, 2008 and 2011. Plaintiff provided copies of these orders as part of the record on appeal. We did not, however, receive copies of all of the earlier orders that are mentioned in the relevant orders.

3

On December 16, 2005, a Qualified Domestic Relations Order (QDRO), designated that plaintiff is entitled to receive a total of $5699.52.

4 The parties did not provide a copy of the September 2006 order.

5 The subsequent September 7, 2011 order makes reference to a December 3, 2008 order entered by Judge Dilts confirming the withdrawal of defendant's request; however, we have not been provided a copy of that order for our review.

6 On November 17, 2008, plaintiff received notice from the court that the Writ covered only the enhanced judgment for the pension account and not the judgment for the Fidelity account, as anticipated, because she had not made an application following defendant's failure to provide the Fidelity statement in May 2008.

7

This motion was heard by a judge other than Judge Dilts, who was nearing retirement. For the reasons stated below, we do not know all of the issues raised by the parties for that proceeding.

8 Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).