NANCY GANJOIN v. BRUCE HALL

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4894-15T2

NANCY GANJOIN,

        Plaintiff-Respondent,

v.

BRUCE HALL,

     Defendant-Appellant.
__________________________________

              Submitted July 18, 2017 – Decided November 17, 2017

              Before Judges Ostrer and Leone.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part,
              Middlesex County, Docket No. FM-12-1542-98.

              Jeney, Jeney & O'Connor, LLC, attorneys for
              appellant (Robert J. Jeney, Jr., on the
              brief).

              Respondent has not filed a brief.

PER CURIAM

        In this post-judgment matrimonial matter, the trial court

compelled defendant and his ex-wife to share equally the cost of

a court-appointed forensic accountant.              The court found that both

parties were to "some extent not cooperative with each other with
regard   to   discovery,"   requiring   the   appointment.    Defendant

appeals, contending the court should have assigned the entire cost

to his ex-wife, because only questions about her income and assets

prompted hiring the forensic accountant, and only her lack of

cooperation increased the accountant's fee.          As we discern no

basis in the record for the court's conclusion that the parties

were equally responsible for the accountant's services, we vacate

the order and remand.

     Nancy Ganjoin and Bruce Hall were divorced in 1998 with a

young child.    They agreed to share their child's future college

education costs, in accordance with their "respective financial

abilities at that time."     However, when their child was ready to

attend college, they could not agree.         Ganjoin filed a motion to

compel Hall to contribute.     He responded that he could not afford

to contribute, and cross-moved to reduce his child support and

questioned Ganjoin's current income and assets.

     Supported by a case information statement, Hall stated he

earned a modest five-figure income as a truck driver, and had a

net worth of roughly three times that, consisting mainly of

retirement savings.     According to her CIS, Ganjoin also had a

five-figure income, but twenty-percent higher than Hall's, which

she said consisted of income from various rental properties.



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However, her seven-figure net worth was almost ten times Hall's,

mainly due to her real estate holdings.

      Hall questioned the accuracy of Ganjoin's submission.                     He

noted she had been a self-employed builder, but failed to report

in her most recent CIS income and assets from that business and

other sources that she had disclosed in previous CISs.                He alleged

she significantly reduced the value of her real estate since her

prior filings.     Also, he noted her personal budget far exceeded

her reported income.

      After a case management conference, the court entered an

order appointing the accountant "to determine Plaintiff's existing

income from her various businesses."              The court required the

parties to split the cost evenly "subject to readjustment by the

Court upon completion of his services . . . ."

      Plaintiff failed to disclose certain requested documents.

The   accountant    contended,      in   a   letter    to    the    court,    that

plaintiff's failure delayed completion of his work.                 Over a year

after   the   accountant's    appointment,      the     court      directed    the

accountant    to   complete   his    report    based    on    the   information

submitted.

      On the eve of a plenary hearing, the parties agreed defendant

would be responsible for fifteen percent of the costs and expenses

of their child's attendance at a named private university, and he

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would be relieved of his prior weekly child support obligation.

However, the court's order stated the parties would attempt to

resolve their differences regarding the accountant's "outstanding

invoice," or return to court.              "All other issues [were] . . .

waived."

      After   the     parties    failed       to   reach   agreement     about     the

accountant's        fee,   the   court        invited      written    submissions.

Defendant's counsel asserted that plaintiff should be responsible

not only for the outstanding invoice, but also the payments

defendant     had    already     made.         Counsel      contended       that   the

accountant's    report     verified      that      plaintiff   had,     in    various

respects, significantly understated her income in her initial

motion.     He also cited the accountant's statement in a letter to

the court, that plaintiff's lack of cooperation had increased his

work's cost.

      Plaintiff's counsel contended the accountant's work exceeded

the   scope   necessary.         Counsel      also   challenged       the    expert's

findings; and criticized aspects of his billings.                    He argued that

the order did not permit defendant to claim plaintiff pay any part

of his fifty percent share.

      Thereafter, the accountant submitted a final invoice, and

statement of payments by the parties. Plaintiff had paid $6920.50,



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defendant had paid $6831.75, and an adjusted $10,000 remained due,

after the accountant wrote off $8692.75.

     Without    hearing      further   argument    or     evidence,      the   court

entered its order requiring defendant to pay $5044, and plaintiff

$4956.    When added to prior payments, the parties were responsible

for virtually identical amounts.            This appeal followed.1

     The family court has the authority to appoint an economic

expert if it concludes the expert will assist in disposing of an

economic issue.       R. 5:3-3(c).     When the court appoints an expert,

it has discretion to direct who pays the costs.               R. 5:3-3(i).        In

determining how to allocate such costs, a judge may take into

account the same factors outlined in Rule 5:3-5(c) governing awards

of attorney's fees.       See Platt v. Platt, 
384 N.J. Super. 418, 429

(App. Div. 2006) (allocating expert fees in divorce case).                     These

include, among other factors: the parties' financial circumstances

and ability to pay; their good faith; the reasonableness of their

positions;    their    cooperation     with    discovery;     and    the   results

obtained.     See R. 5:3-5(c).

     We     review    such   allocation       decisions     for     an   abuse    of

discretion.     Platt, supra, 
384 N.J. Super. at 429.                    We accord

deference to the Family Court, see Cesare v. Cesare, 
154 N.J. 394,


1
  Plaintiff did not file a brief in opposition to defendant's
appeal.

                                        5                                  A-4894-15T2
411-12 (1998), yet we will set aside a discretionary decision that

lacked support in the record, ibid., or was "made without a

rational    explanation,   inexplicably      departed    from     established

policies,    or   rested   on     an   impermissible    basis,"     Milne    v.

Goldenberg, 
428 N.J. Super. 184, 197 (App. Div. 2012) (quoting

Flagg v. Essex Cnty. Prosecutor, 
171 N.J. 561, 571 (2002)). "Naked

conclusions" do not fulfill the court's duty to find facts and set

forth its reasoning.       See Curtis v. Finneran, 
83 N.J. 563, 570

(1980); Heinl v. Heinl, 
287 N.J. Super. 337, 347 (App. Div. 1996);

R. 1:7-4(a).

     Having carefully reviewed the record, we find no support for

the court's conclusory finding that the parties were on an equal

footing regarding their cooperation with discovery.               The court's

own order appointed the expert to review only plaintiff's finances,

evidently in response to defendant's assertion that plaintiff had

understated her income.         The expert contended that plaintiff did

not cooperate with the production of documents, which inflated his

fees.   There was no allegation that defendant was delinquent in

discovery, or that he had to produce documents to the accountant,

let alone that he was uncooperative with the accountant and

increased the extent of his fees.          Notably, plaintiff raised no

question about the accuracy of defendant's financial disclosures.

On the other hand, the accountant found support for defendant's

                                       6                              A-4894-15T2
assertions that plaintiff did not present a full and accurate

picture of her finances.       Thus, the record indicates defendant's

position was reasonable and the results favored him.

     Of course, the accountant's contentions might be inaccurate,

and thus plaintiff may have acted in good faith.                However, the

court could not reach those conclusions without holding a plenary

hearing.     On the current record, nothing supported the court's

conclusion       that   defendant     and     plaintiff        were    equally

uncooperative.

     Even if the court were ultimately to find that plaintiff did

not act in bad faith, the striking disparities in the parties'

assets and income were worthy of consideration. "Fees in family

actions    are   normally   awarded   to    permit   parties    with   unequal

financial positions to litigate            (in good faith) on an equal

footing."    J.E.V. v. K.V., 
426 N.J. Super. 475, 493 (App. Div.

2012) (quoting Kelly v. Kelly, 
262 N.J. Super. 303, 307 (Ch. Div.

1992)).

     Although we discern insufficient support for the court's

order, we reject defendant's suggestion that the court should have

reallocated the payments already made.               Although the original

order said the division of the accountant's fees was subject to

readjustment after completion of his services, the plain language

of the settlement order left open only the "outstanding invoice."

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The parties waived all other issues, which we interpret to include

past payments.2

     In   sum,    we   vacate   the   court's   order   and   remand   for

reconsideration of its decision.          We leave it to the court to

determine whether a plenary hearing is necessary.

     Vacated and remanded.      We do not retain jurisdiction.




2
  We recognize that plaintiff argued before the trial court that
the settlement order did not preserve the allocation issue at all,
apparently contending that the only issue preserved was the amount
of the invoice. However, the plain language is not so narrow, and
no extrinsic evidence was presented to support plaintiff's
interpretation.

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