ROBERT G. ISETTS v. ANGELA ISETTS

NOT FOR PUBLICATION WITHOUT THE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-1226-16T1


ROBERT G. ISETTS,

        Plaintiff-Appellant,

v.

ANGELA ISETTS,

     Defendant-Respondent.
______________________________

              Submitted December 11, 2017 – Decided March 9, 2018

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FM-07-1027-08.

              The Cintron Firm, LLC, attorneys for appellant
              (Sasha C. Intriago, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Plaintiff Robert G. Isetts appeals from an August 9, 2016

order awarding defendant Angela Isetts counsel fees.                   We reverse

and remand.
     We discern the following relevant facts from the record on

appeal.   In August 2008, Robert1 and Angela divorced and entered

a property settlement agreement (PSA).   Thereafter, in November

2015, Robert moved to modify his support obligation, arguing

changed circumstances.     Angela opposed this motion and sought

arrears through probation, proof of life insurance as required by

the PSA, and counsel fees.

     Following oral arguments, on March 28, 2016, the Family Part

judge entered an order, denying Robert's request, granting Angela

back alimony due within thirty days, requiring Robert to produce

proof of a life insurance policy within ten days, and instructing

Angela to submit a certification for counsel fees within five

days, which Robert could respond to within three days.   On April

1, 2016, Angela's attorney submitted a certification in support

of counsel fees pursuant to Rule 5:3-5, and on April 6, 2016,

Robert filed a response.

     On May 3, 2016, Robert allegedly contacted the Family Part

judge to inquire about any further orders or opinions and was

advised that there were no outstanding issues.   On May 9, 2016,

Robert then filed a notice of appeal challenging the March 28,


1
   For ease of reference, we refer to the parties by their first
names, and in doing so, we mean no disrespect.



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2016 order and after curing several deficiencies, filed an amended

notice of appeal on May 31, 2016.2

     While the appeal was pending, on June 24, 2016, Angela moved

to enforce litigant's rights, seeking an order finding Robert in

violation of the March 28, 2016 order, forcing him to pay all

past-due alimony per the March 28, 2016 order, ordering a judgment

against Robert and a suspension of his driver's license if he

failed to pay within three days, and further ordering the issuance

of an arrest warrant upon any future violations.       Robert opposed

this motion and filed a cross-motion, requesting the life insurance

requirement be voided.

     On August 9, 2016, the Family Part judge decided the motions

on the papers and entered an order, directing Robert to submit

payment for past-due arrears, finding Robert in violation of the

March 28, 2016 order, ordering a lien against Robert's estate if

he did not provide life insurance, awarding Angela $3000 in counsel

fees, and denying Robert's cross-motion.

     Robert   thereafter   filed   a   motion   for   reconsideration,

arguing, among other things, the Family Part lacked jurisdiction



2
   In Isetts v. Isetts, No. A-3799-15 (App. Div. Oct. 20, 2017),
we affirmed the Family Part's March 28, 2016 order, finding the
Family Part judge did not err in denying Robert modification,
ordering Robert to produce proof of life insurance, and declining
to suspend enforcement of support.

                                   3                           A-1226-16T1
to award counsel fees because an appeal was pending, and even if

the court had jurisdiction, it failed to make requisite findings

of fact and law.    Angela opposed this motion.     Oral arguments were

held on October 18, 2016.     That same day, the Family Part judge

entered an order, denying reconsideration and finding he had

jurisdiction to order counsel fees because the March 28, 2016

order allowed for it.    This appeal followed.

     On   appeal,   Robert   argues:   (1)   the   Family   Part    lacked

jurisdiction to award Angela counsel fees because an appeal was

then pending; and (2) alternatively, if the Family Part had

jurisdiction, the counsel fee award must be set aside because the

Family Part judge did not make findings of fact and conclusions

of law.

     We find that the Family Part had jurisdiction to award counsel

fees even though Robert had filed an appeal.          Pursuant to Rule

2:9-1:

           Except as otherwise provided . . ., the
           supervision and control of the proceedings on
           appeal or certification shall be in the
           appellate court from the time the appeal is
           taken   or   the  notice   of   petition   for
           certification filed.       The trial court,
           however, shall have continuing jurisdiction to
           enforce judgments and orders . . . .




                                   4                               A-1226-16T1
Accordingly, because the March 28, 2016 order explicitly contained

a provision for counsel fees, the Family Part continued to have

jurisdiction to enforce this order.

     Turning to Robert's alternative argument, we find the Family

Part erred by not making requisite findings for an award of counsel

fees.

     An award of counsel fees in a matrimonial case lies within

the sound discretion of the Family Part judge.               See Williams v.

Williams,    
59 N.J.   229,   233   (1971).     Rule    5:3-5(c)   provides

enumerated   factors     the    Family   Part   judge    should   consider    in

awarding counsel fees, including:

            (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; (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.

Additionally, "[t]rial judges are under 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) (citing

Rule 1:7-4).      A counsel fee award that is unsupported by adequate

findings must be set aside.        Clarke v. Clarke ex rel. Costine, 359

                                         5                             A-1226-16T
1 N.J.   Super.   562,   572   (App.   Div.   2003);   see   also   Gordon    v.

Rozenwald, 
380 N.J. Super. 55, 79 (App. Div. 2005).

       Here, the Family Part judge did not make the required findings

in awarding counsel fees.       Consequently, we remand for the judge

to consider whether to award counsel fees and to make findings of

fact and conclusions of law.         We defer to the trial court as to

whether it wishes to request additional submissions from the

parties.

       We reverse the award of counsel fees to Angela and remand for

reconsideration on that issue.        We do not retain jurisdiction.




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