SHIRL DAVID v. ANTONIO WYNN

NOT FOR PUBLICATION WITHOUT THE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-2707-16T3



SHIRL DAVID,

              Plaintiff-Appellant,

v.

ANTONIO WYNN,

          Defendant-Respondent.
__________________________________

              Argued February 15, 2018 – Decided March 5, 2018

              Before Judges Haas and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FM-12-2156-13.

              Rajeh A. Saadeh argued the cause for appellant
              (The Law Office of Rajeh A. Saadeh, LLC,
              attorney; Rajeh A. Saadeh and Amanda E.
              Rasheed, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        In this post-judgment matrimonial matter, plaintiff appeals

from paragraphs three and eight of the Family Part's December 16,
2016 order, denying her motion to eject defendant from the former

marital home and her request for counsel fees and costs. Plaintiff

also appeals from paragraphs one, two, three, six, nine, and ten

of the trial court's February 3, 2017 order, which denied her

motion for: reconsideration of certain provisions of the December

16, 2016 order; the issuance of a bench warrant for defendant due

to his failure to comply with court orders; and counsel fees and

costs associated with her enforcement motion.   We are constrained

to reverse and remand because the trial court did not make findings

of fact or conclusions of law on any of the issues raised in

plaintiff's motions.

     The parties were married in 1993 and divorced in 2014.

Pursuant to their Marital Settlement Agreement (MSA), defendant

was to assume the mortgage on the former marital home within forty-

five days.   If he failed to do so, the parties were required to

list the house for sale and then equally divide the proceeds.

Among other things, the MSA also directed defendant to pay $237.50

per week in permanent alimony to plaintiff, together with half of

the cost of a Qualified Domestic Relations Order (QDRO) required

to distribute defendant's retirements accounts, and $10,000 to be

paid in installments toward plaintiff's counsel fees.

     Defendant did not comply with the terms of the MSA, and

plaintiff filed a series of enforcement motions between January

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2015 and December 2016.           Defendant was unable to assume the

mortgage on the parties' home and, on January 9, 2015, the trial

court ordered that it be listed for sale.

      Because defendant was not cooperating with the sale of the

home, the court issued an order on February 5, 2016, appointing a

realtor to list the property for sale.               On July 22, 2016, after

plaintiff filed another enforcement motion, the court ordered

defendant to either refinance the home in his name by November 1,

2016 or, if he failed to do so by that date, transfer his interest

in the home to plaintiff so she could sell it.            Defendant remained

behind in his support and counsel fee obligations and had still

not paid his half of the QDRO fee.

      Plaintiff subsequently filed the motions that are the subject

of this appeal.      On December 16, 2016, the trial court granted

plaintiff's motion to require defendant to convey his interest in

the home to her by executing a quitclaim deed.            Although defendant

ultimately did transfer the home to plaintiff, he refused to leave

the   house   or   pay   the   mortgage   on   the    property.   Therefore,

plaintiff asked that the court eject defendant from the home so

it could be sold.         The court denied this request in paragraph




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three of the December 16 order, but gave no reasons for its

decision.1

      The court also ordered defendant to pay his share of the QDRO

within ten days, and to "immediately make the mortgage on the real

property      current[.]"      Without            prejudice,   the   court     denied

plaintiff's request for the issuance of a bench warrant to coerce

defendant to comply with his obligations.                      However, the court

stated, "In the event that . . . [d]efendant fails to comply with

the   terms    of   this   [o]rder,   .       .    .   [p]laintiff   may   submit     a

certification, with notice to . . . [d]efendant, and a bench

warrant may issue for . . . [d]efendant's arrest."

      In paragraph eight of the December 16, 2016 order, the court

denied plaintiff's motion for counsel fees and costs associated

with her enforcement motion without prejudice.                  Although the court

noted that it was required to consider a number of factors in

reviewing such a motion,2 it did not do so in its order.                     Instead,



1
   Paragraph three of the December 16, 2016 order stated,
"Plaintiff's request that the [c]ourt eject [d]efendant from the
real property is DENIED."
2
  An award of counsel fees in family actions is permitted by Rule
5:3-5(c) and Rule 4:42-9(a)(1). See Berkowitz v. Berkowitz, 
55 N.J. 564, 570 (1970).     Although the award is discretionary,

N.J.S.A. 2A:34-23 requires the court to consider the following
factors set forth by court rule:



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the court merely stated that "[t]he financial ability of the

[p]arties is unclear, and the [c]ourt finds no bad faith on the

part of [d]efendant at this time."

      When defendant did not comply with any of the provisions of

the December 16, 2016 order, plaintiff filed another enforcement

motion.      Plaintiff asked the court to reconsider its decision not

to   eject    defendant     from    the   property    because   he    was     still

interfering with its sale.           In paragraphs one, two, and three of

its February 3, 2017 order, the court denied plaintiff's request.

The court again provided no explanation for its decision, and its

order   merely    stated,    "Plaintiff's     motion    requesting     that      the

[c]ourt      reconsider   the      December   16,    2016   [o]rder   to      eject

[d]efendant from the real property is DENIED."




              (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.

              [R. 5:3-5(c); See also Mani v. Mani, 
183 N.J.
              70, 93-94 (2005).]

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      Although the court had expressly invited plaintiff to file a

new motion for the issuance of a bench warrant if defendant failed

to   abide   by   the    December    16,       2016   order,   the   court    denied

plaintiff's request for this relief in paragraph six of the

February     3,   2017    order     without      prejudice     and   without      any

explanation.

      Finally, in paragraph ten of the February 3 order, the court

denied plaintiff's request that defendant pay the counsel fees and

costs she incurred in connection with her latest enforcement

motion.      The court again did not address all of the required

factors and, instead, repeated verbatim what it had written in its

December 16, 2016 order.3         This appeal followed.4

      On appeal, plaintiff argues that the trial court incorrectly

denied her motions to:            (1) issue a bench warrant to compel

defendant to comply with the court's prior orders or impose a

different sanction upon him; and (2) grant her counsel fees and



3
   In paragraph nine of the February 3, 2017 order, the court
denied plaintiff's motion for reconsideration of its prior denial
of her motion for counsel fees and costs associated with the
enforcement motion that was the subject of the December 16, 2016
order.
4
   At oral argument, plaintiff advised us that defendant left the
former marital home sometime after she filed her appeal.
Therefore, the arguments she raised in her appellate brief
concerning the judge's denial of her motion for ejectment are now
moot.

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costs for her repeated enforcement motions.           However, because the

court failed to provide any explanation for the rulings it made

on these subjects in the December 16, 2016 and February 3, 2017

orders, we are unable to consider plaintiff's contentions.

     Rule 1:7-4(a) clearly states that a trial "court shall, by

an 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[.]"   See Shulas v. Estabrook, 
385 N.J. Super. 91, 96 (App.

Div. 2006) (requiring an adequate explanation of basis for court's

action).    Here, the court provided no reasons for denying the

portions of plaintiff's motions that are involved in this appeal.

See Curtis v. Finneran, 
83 N.J. 563, 569-70 (1980) (requiring

court to clearly state its factual findings and correlate them

with the relevant legal conclusions).         As a result, we have no way

of knowing why the court decided to deny plaintiff's request for

a bench warrant or another sanction, such as the entry of a

judgment against defendant for the alimony and counsel fees he has

already failed to pay; or her application for counsel fees and

costs associated with the enforcement motions she filed to enforce

the clear terms of the MSA.

     "Meaningful appellate review is inhibited unless the judge

sets forth the reasons for his or her opinion."                 Strahan v.

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Strahan, 
402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch

v. Salch, 
240 N.J. Super. 441, 443 (App. Div. 1990)).               The failure

to provide findings of fact and conclusions of law "constitutes a

disservice to the litigants, the attorneys, and the appellate

court."    Curtis, 
83 N.J. at 569-70 (quoting Kenwood Assocs. v. Bd.

of Adj. Englewood, 
141 N.J. Super. 1, 4 (App. Div. 1976)).                     The

trial court's complete failure to provide the findings of fact and

conclusions   of    law    required   by     Rule   1:7-4(a)   on   any   of   the

provisions of the orders that are the subject of this appeal,

combined   with    his    failure   to   adequately    consider     plaintiff's

enforcement motions, necessitates a remand for fulfillment of the

court's obligation in this regard.

     We therefore reverse the trial court's determinations in the

December 16, 2016, and February 3, 2017 orders that are the subject

of this appeal.     We remand this matter with the direction that the

trial court consider plaintiff's motions to enforce the court's

prior orders, and her requests for counsel fees associated with

those motions, and make detailed findings of fact and conclusions

of law on all of the issues raised, within forty-five days of the

date of this opinion.

     Reversed and remanded.         We do not retain jurisdiction.




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