JOAN BEREZANSKY v. KEVIN BEREZANSKY

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Superior Court of New Jersey, Appellate Division.

JOAN D. BEREZANSKY, Plaintiff–Appellant, v. KEVIN A. BEREZANSKY, Defendant–Respondent.

DOCKET NO. A–2108–12T3

Decided: April 1, 2014

Before Judges Fuentes, Simonelli and Haas.

In this matrimonial action, plaintiff Joan Berezansky appeals from the November 27, 2012 Dual Judgment of Divorce (“DJOD”), which required her to pay defendant Kevin Berezansky $2000 per month in permanent alimony, $100 per week in child support for the parties' two children, an unspecified share of the children's college expenses, and $11,301.36 in counsel fees and costs.   The DJOD also divided the parties' personal property and assets.   We are constrained to reverse and remand because the trial judge did not make adequate findings of fact and conclusions of law.   R. 1:7–4.

The parties were married in March 1988 and separated in April 2008 after plaintiff obtained a Final Restraining Order against defendant.   They have two children, who live with defendant.   The oldest child has graduated from college, while the younger child was attending college when the DJOD was issued.

In June 2008, plaintiff filed her complaint for divorce and defendant filed a timely answer and counterclaim for divorce.   After a three-day trial, the trial judge entered a judgment on November 18, 2011, that required plaintiff to pay defendant $3000 per month in permanent alimony and $21,301.26 in attorney's fees and costs.   By agreement of the parties, no other issues were addressed by the judge.   When the parties were thereafter unable to resolve the remaining issues, they each filed a motion for reconsideration of the alimony and counsel fee award and the judge granted both motions in March 2012.   The judge then conducted a second trial on four non-consecutive days between July and September 2012.   On November 27, 2012, the judge issued the DJOD that is the subject of the present appeal.

The DJOD is bereft of any meaningful findings of fact or conclusions of law.   Because many factual issues concerning the parties' incomes, assets, and responsibility for the children's expenses were vigorously contested, the credibility of each of the parties was a significant issue that needed to be determined by the judge.   With regard to credibility, however, the judge merely stated that he “heard the testimony and reviewed the various exhibits marked into evidence” and found “that the Plaintiff is not a credible witness [and] that the Defendant is a credible witness.”   The judge did not explain why he chose one party's version of the facts over the other and did not explain how this conclusion affected his decision on the issues addressed in the DJOD.

With regard to alimony, a trial judge must consider and weigh thirteen factors in determining whether an award of alimony is appropriate and the duration of any such award.   See Gnall v. Gnall, 432 N.J.Super. 129, 148 (App.Div.2013);  N.J.S.A. 2A:34–23c (requiring the court to “make specific findings on the evidence” regarding statutory factors relevant to an alimony award).   Here, the judge mentioned all thirteen statutory factors in the DJOD, but did not “methodically consider” or make detailed findings concerning the evidence produced by the parties at trial concerning each of these factors.   Gnall, supra, 432 N.J.Super. at 149.   The judge provided no explanation for his determination that permanent alimony in the amount of $2000 per month was appropriate.

The judge ordered plaintiff to pay defendant $100 per week in child support for the two children.   Because the children had either completed, or were still attending, college, the judge was required to consider the ten factors set forth in N.J.S.A. 2A:34–23a before making any determination concerning child support.  Jacoby v. Jacoby, 427 N.J.Super. 109, 122 (App.Div.2012).   However, the judge did not provide any explanation in the DJOD for the child support award.

Similarly, a trial judge must consider and weigh twelve factors before determining whether a parent must contribute to the college expenses of his or her child.  Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).   No findings are set forth in the DJOD to support the judge's ruling that “[b]oth parties are responsible for contributing to the college costs of the children.”   The DJOD does not even specify either party's required share of these costs.

The judge also failed to make sufficient findings of fact supporting his decision to grant defendant's request for counsel fees and costs.   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, Rule 5:3–5(c) requires the court to consider nine factors before fees are awarded.  Mani v. Mani, 183 N.J. 70, 93–94 (2005).   Again, the judge did not make findings concerning each of the required factors before requiring plaintiff to pay defendant $11,301.36 in counsel fees and costs.

Finally, a trial judge must evaluate sixteen factors in determining how the parties' assets should be equitably distributed.  N.J.S.A. 2A:34–23.1. The judge must also make “specific findings of fact on the evidence relevant to all issues pertaining to ․ equitable distribution, including specifically, but not limited to, the factors” listed in the statute.  Ibid. While the judge in this case divided the parties' property and assets, he provided no explanation in the DJOD of his reasons for this distribution.

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 the basis for a court's action).  “ ‘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)).   The failure to provide findings of fact and conclusions of law “ ‘constitutes a disservice to the litigants, the attorneys and the appellate court.’ ”  Curtis v. Finneran, 83 N.J. 563, 569–70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J.Super. 1, 4 (App.Div.1976)).

Because the trial judge did not make any meaningful findings of fact on credibility or the other disputed issues in this case, the DJOD must be reversed and the matter remanded for a new trial.

Reversed and remanded.   We do not retain jurisdiction.

PER CURIAM

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