ANITA SEIGEL v. NORMAN SUTTA

NOT FOR PUBLICATION WITHOUT THE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-3526-15T4

ANITA SEIGEL,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

NORMAN SUTTA,

     Defendant-Appellant/
     Cross-Respondent.
_______________________________

                 Submitted January 9, 2018 – Decided January 24, 2018

                 Before Judges Fasciale, Sumners and Moynihan.

                 On appeal from Superior Court of New Jersey,
                 Chancery Division, Family Part, Passaic
                 County, Docket No. FM-16-6049-92.

                 Ziegler   &   Zemsky,  LLC,        attorneys      for
                 appellant/cross-respondent          (Steven        M.
                 Resnick, on the briefs).

                 Lomberg & Del Vescovo, LLC, attorneys for
                 respondent/cross-appellant (Paul Lomberg, on
                 the briefs).

PER CURIAM

        Defendant appeals from a January 22, 2016 order denying his

motion      to    terminate   his    alimony    obligation     due   to    changed
circumstances; and a March 24, 2016 order denying reconsideration.

Plaintiff cross-appeals from the same orders, which denied her

request for counsel fees.          We remand for further proceedings

consistent with this opinion.

     The parties married in December 1972, and in May 1994, the

court entered a Dual Judgment of Divorce (JOD) and Stipulation of

Settlement requiring defendant to pay plaintiff $1250 per month

in alimony. In 2007, defendant retired, which prompted his efforts

to terminate his alimony obligation.        In February 2009, an earlier

judge denied defendant's initial motion for alimony termination

based upon his retirement, yet reduced his alimony obligation from

$1250 to $1000 per month.      Although the JOD did not specify the

duration of alimony, that judge stated that it "shall continue on

a permanent basis."    Defendant did not appeal from the February

2009 order.

     In 2015, defendant again moved to terminate his alimony

obligation.   Plaintiff cross-moved for counsel fees.             The judge

who entered the orders under review conducted oral argument, but

denied both motions without making findings of fact or conclusions

of law.   The parties moved for reconsideration and requested oral

argument,   but   before    conducting     oral   argument   or   receiving

defendant's   opposition,    the   judge    denied   the   reconsideration



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motions, also without providing findings of fact or conclusions

of law.

      On appeal, defendant argues that the judge failed to analyze


N.J.S.A.     2A:34-23(j)(3)          and    make     the    appropriate     findings

regarding his changed circumstances.                 Relying on 
N.J.S.A. 2A:34-

23(j)(3), defendant maintains that his retirement constitutes a

changed circumstance requiring termination of his alimony.                          This

statute provides that "the court shall consider the ability of the

obligee to have saved adequately for retirement as well as [eight]

factors     in   order       to    determine     whether     the     obligor,     by    a

preponderance of the evidence, has demonstrated that modification

or   termination       of   alimony    is   appropriate."          
N.J.S.A.      2A:34-

23(j)(3).

      It is undisputed that alimony orders "may be revised and

altered by the court from time to time as circumstances may

require."      
N.J.S.A. 2A:34-23.          Thus, alimony obligations, whether

set in judicial orders or parties' agreements, "are always subject

to    review     and        modification        on   a     showing     of   'changed

circumstances.'"        Lepis v. Lepis, 
83 N.J. 139, 146 (1980) (quoting

Chalmers v. Chalmers, 
65 N.J. 186, 192 (1974)).                      Our ability to

consider the soundness of the orders under review, however, has

been hampered by the judge's failure to make findings of fact and

conclusions of law.               Rule 1:7-4(a) requires that "[t]he court

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shall, by an opinion or memorandum decision, either written or

oral, find the facts and state its conclusions of law thereon in

all actions tried without a jury, on every motion decided by a

written order that is appealable as of right."                  A judge cannot

satisfy this rule with "[n]aked conclusions."             Monte v. Monte, 
212 N.J. Super. 557, 565 (App. Div. 1986).                 "This requirement is

particularly       applicable   to   matrimonial       cases.     Without      such

findings it is impossible for an appellate court to perform its

function of deciding whether the determination below is supported

by    substantial    credible   proof       on   the   whole    record."     Ibid.

(citations omitted).      "Litigants and their attorneys are entitled

to know the factual and legal basis of the court's determination,

and   they   are    disserved   if    the    trial     court    fails   in     this

obligation."       Filippone v. Lee, 
304 N.J. Super. 301, 306 (App.

Div. 1997).

       Furthermore, the judge ruled on the reconsideration motions

before receiving defendant's opposition to plaintiff's cross-

motion, and without conducting oral argument. Rule 5:5-4(a) states

that "the court shall ordinarily grant requests for oral argument

on substantive and non-routine discovery motions."1                     Being a


1
   Requests for oral argument on substantive issues may be denied
pursuant to Rule 1:6-2(d) where the court sets forth its reasoning
for the denial on the record.     Raspantini v. Arocho, 
364 N.J.
Super. 528, 531-32 (App. Div. 2003).

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substantive motion regarding alimony termination, the parties

should have been allowed to argue orally and the judge abused his

discretion by denying them that right.   See, e.g., Filippone, 
304 N.J. Super. at 306; Mackowski v. Mackowski, 
317 N.J. Super. 8, 14

(App. Div. 1998).

     On remand, the judge should conduct oral argument on the

reconsideration motions, and then make the appropriate findings

of fact and conclusions of law as to those motions as well as

defendant's motion to terminate alimony and plaintiff's cross-

motion for fees.    We leave the details of the remand proceedings

to the discretion of the judge.      We do not retain jurisdiction

because the further proceedings will result in orders entered

after the parties have created a more complete record from which

the parties may or may not appeal.




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