CAROLYN JOAN TURNER v. JOHN EDMUND TURNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4544-10T1

CAROLYN JOAN TURNER,

Plaintiff-Respondent/

Cross-Appellant,

v.

JOHN EDMUND TURNER,

Defendant-Appellant/

Cross-Respondent.

________________________________________________

August 22, 2013

Argued February 12, 2013 - Decided

Before Judges Yannotti, Harris and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-501-96.

Laurence J. Cutler argued the cause for appellant/cross-respondent (Fox Rothschild, L.L.P., attorneys; Mr. Cutler on the brief).

Bonnie C. Frost argued the cause for respondent/cross-appellant (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost on the brief).

PER CURIAM

DefendantJohn EdmundTurner appealsand plaintiffCarolyn Joan Turner cross-appeals from post-judgment Family Part orders regarding proposed changes in the parties' Property Settlement Agreement (PSA). Because the trial judge did not make sufficient findings of fact and conclusions of law to enable us to ascertain whether he appropriately exercised his discretion, we are constrained to reverse and remand for further proceedings.

The parties were married on November 30, 1976, and divorced by dual judgment of divorce on February 27, 2001, which incorporated their PSA. Plaintiff suffered from an autoimmune endocrine disease, which rendered her unable to hold steady employment. Their PSA provided that defendant pay $7500 per month to plaintiff in permanent spousal support "based on the Husband's annual salary of 150,000 (UK) and year 2000 bonus of 47,000 (UK)." Defendant also agreed to keep a life insurance policy worth $500,000, with plaintiff named the beneficiary, so long as defendant had an obligation to pay alimony.

In 2001, defendant started working for IBM Global Services. IBM informed defendant in July 2008 that he must retire upon reaching the age of sixty-five on June 30, 2009. Although he wrote his employer objecting to his retirement, he did not make a formal appeal. Accordingly, he retired on July 5, 2009.

In light of his upcoming retirement, defendant filed an application in the Family Part for modification of spousal support on May 14, 2009, alleging changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). Defendant requested that the court terminate his alimony and life insurance obligation, or alternatively, that the court hold a plenary hearing on the matter and suspend his alimony obligation until rendering a decision.

On July 2, 2009, plaintiff filed an opposition and a cross motion requesting the court to deny defendant's motion, require defendant to name plaintiff as the owner of defendant's Transamerica Universal Life Insurance policy, and name plaintiff as the beneficiary of $47,000 from any of his life insurance policies, or, alternatively, pay off the $47,000 loan he took from the Transamerica policy. Plaintiff also requested counsel fees and costs incurred in opposing defendant's motion.

On July 31, 2009, the Family Part judge granted defendant's request for a plenary hearing on modification of his alimony obligation, ordered defendant to continue paying $6000 per month alimony until the plenary hearing, and reserved the other issues for later consideration pending the outcome of the hearing.

A different Family Part judge conducted four non-consecutive days of hearings in which defendant's credibility and his current financial circumstances were vigorously disputed. At the hearing, defendant contended that he should not be required to pay alimony as he was no longer able to find employment. Defendant testified that he "spent several hundred pounds of [his] own money attending a course on interim management," and registered with four or five companies that handle interim management. These efforts were unsuccessful, he believed, because of the poor state of the economy.

On the other hand, plaintiff contended that defendant had not shown a permanent and substantial change in circumstances. She argued that he did not make sufficient efforts to find new employment, although he was fit to work. Plaintiff pointed out that, despite defendant s claims of severely reduced means, he took several expensive vacations and continued to live extravagantly.

In addition, defendant s Case Information Statement listed his 2009 salary as $257,261, and showed that he received a total salary in 2008 of $375,592. Plaintiff argued that defendant's total earnings from pensions and investments in 2009 equaled $427,531, showing that he did not have a significant economic change since 2001.

In his written decision filed January 10, 2011, after briefly reviewing the history of the case, the trial judge stated:

Defendant has transferred funds from one account to another, with a reduction in the amount being transferred not being adequately explained. Defendant has built up his indebtedness while at the same time taking numerous trips out of the country.

Defendant's Motion to Terminate Alimony is denied.

However, the Court finds that Defendant is entitled to a reduction in alimony based upon his change in circumstances.

Based upon the evidence produced at the Plenary Hearing, the Court modifies alimony as follows:

1. Effective July 5, 2009, alimony is reduced to $4,000 per month.

2. Effective January 7, 2011, when Plaintiff becomes eligible for Medicare, alimony will be further reduced to $2,000 per month.

Defendant shall maintain the life insurance policy for $500,000 as specified in the Property Settlement Agreement and provide proof of same every January 1.

Arrears are set at $14,000 as of December 15, 2010 after giving Defendant credit for the $30,000 lump sum paid against arrears. Arrears are to be paid at the rate of $1,000 per month until paid in full.

The judge also awarded plaintiff counsel fees of $12,500.

On February 8, 2011, defendant moved for reconsideration, which a different Family Part judge heard and denied. This appeal followed.

On appeal, defendant presents the following issues for our consideration:

I. THE JANUARY 10, 2011 DECISION ORDER OF THE HEARING COURT SHOULD BE REVERSED IN ITS ENTIRETY BECAUSE THE HEARING JUDGE FAILED TO MAKE ANY FINDINGS OF FACT WHATSOEVER, NOR ANY CONCLUSIONS OF LAW, NOR ANY LINKAGE TO THE FACTS OF THIS CASE TO THE LAW.

II. DEFENDANT-APPELLANT'S APPLICATION TO TERMINATE THE ALIMONY SHOULD HAVE BEEN GRANTED, AND THE REDUCTION ALLOWED BY THE HEARING JUDGE CONSTITUTED AN ABUSE OF DISCRETION.

III. THE FAILURE OF THE HEARING JUDGE TO TERMINATE OR AT LEAST REDUCE THE QUANTUM OF LIFE INSURANCE WHICH THE DEFENDANT WAS REQUIRED TO MAINTAIN IN ORDER TO SECURE ALIMONY WAS CLEARLY AN ABUSE OF DISCRETION.

IV. THE ESTABLISHMENT OF ARREARS AT $14,000 TO BE PAID OVER TIME IS, IN THE ABSENCE OF FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND LINKAGE OF THE TWO, AN ABUSE OF DISCRETION WHICH MUST BE REVERSED.

V. THE COUNSEL FEE AWARD OF $12,500 AGAINST THE DEFENDANT AND IN FAVOR OF THE PLAINTIFF IS WITHOUT SUFFICIENT BASIS AS TO SUSTAIN ITS AWARD.

VI. THE ORDER DENYING RECONSIDERATION SHOULD BE REVERSED.

Plaintiff raises the following arguments in her cross-appeal:

I. DEFENDANT HAS NOT EXPERIENCED A PERMANENT AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES THAT AFFECTS HIS ABILITY TO SUPPORT PLAINTIFF. HE FAILED TO MEET HIS BURDEN OF PROOF AND HIS APPLICATION SHOULD HAVE BEEN DENIED THEREBY REINSTATING HIS OBLIGATION AT THE $7500 PER MONTH LEVEL PURSUANT TO THE PARTIES' PROPERTY SETTLEMENT AGREEMENT.

II. THE COURT'S RULING ON DEFENDANT'S LIFE INSURANCE POLICY AND COUNSEL FEES COMPOUNDED THE UNFAIR ECONOMIC BURDEN PLACED ON PLAINTIFF, THE DISADVANTAGED SPOUSE, BY DEFENDANT'S RETIREMENT.

Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id.at 413.

Family Part judges have "a duty to make findings of fact and to state reasons in support of their conclusions." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). Rule 1:7-4(a) specifies that a "court shall, by opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . . ." This Rule obligates a court when deciding a matter to support its decision with adequate findings of fact. Cameco, Inc. v. Gedicke, 157 N.J. 504, 509 (1999). The failure to do so "constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 570 (1980) (citation omitted).

"Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). "Naked conclusions do not satisfy the purpose of R. 1:7-4," and as such, "the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis, supra, 83 N.J. at 570. Without such findings and conclusions, an appellate court is incapable of deferring to the trial court's judgment, which may result in a reversal of the judge's order. See Rolnick v. Rolnick, 290 N.J. Super. 35, 42-43 (App. Div. 1996); Gac v. Gac, 351 N.J. Super. 54, 64 (App. Div. 2002), rev'd on other grounds, 186 N.J. 535 (2006). The trial judge's findings and conclusions in this case did not satisfy the well-established standard.

Despite the multiplicity of evidence presented before the Family Part during the four days of plenary hearings, there is a paucity of factual findings and legal conclusions in the trial judge's January 10, 2011 order, which significantly inhibits our review of both appeals. The trial judge's failure to provide the findings of fact and conclusions of law required by Rule 1:7-4(a) necessitates a remand for fulfillment of the judge's obligation in this regard.

Reversed and remanded. The Family Part judge shall issue the requisite findings and conclusions within forty-five days. We do not retain jurisdiction.