PAMELA DONFIELD v. ROBERT DONFIELD (2011)

Plaintiff Pamela Donfield appeals from a final judgment of the Family Part denying her application for counsel fees in connection with the parties' divorce proceedings.   She sought an award of such fees from defendant Robert Donfield.   We remand this matter for further proceedings.

The parties were involved in an acrimonious divorce, which they ultimately settled on the eve of trial by entering into a property settlement agreement.   They received a divorce from bed and board, which was ultimately converted to a final divorce.   They were not able to resolve the issue of counsel fees.

Plaintiff sought an award of such fees and submitted certifications attesting to the quantum of fees and urging that defendant engaged in bad faith litigation by prolonging the proceedings, taking unreasonable positions, and refusing to settle.   Defendant cross-moved from an allowance of fees making similar allegations against plaintiff.

The judge issued a written opinion in which he discussed the undisputed facts and reviewed the allegations each party made against the other.   He then made some limited fact-findings with respect to those allegations and concluded that both parties had exhibited bad faith during the pre-trial discovery phase of the litigation.   Those findings were not sufficient, particularly with respect to plaintiff.

A judge has a duty to make findings of fact and conclusions of law “on every motion decided by a written order that is appealable as of right.”   R. 1:7-4(a).  “Failure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court.”  Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citation and internal quotation marks omitted).   Moreover, “[n]aked conclusions do not satisfy the purpose of R. 1:7-4.”  Id. at 570.

Here, the judge made the following findings:

After reviewing the in-depth filing of incidents allegedly demonstrating bad faith by both parties, the [c]ourt cannot find that one party wholly engaged in good faith while the other party did not.   The [c]ourt finds [p]laintiff's concern of [d]efendant's alleged problems with alcoholism and gambling relevant to the issue of custody.   However, the [c]ourt notes that the parties agreed to a custody arrangement giving the [d]efendant custody of the children approximately 36 percent of the time, provided that the [d]efendant refrains from using alcohol 48 hours before and while he has custody of the children.   This arrangement is not equivalent to the 50/50 custody request made by the [d]efendant at the outset nor does it demonstrate that [d]efendant's desire for custody ended up being bogus as [p]laintiff initially contended.   However, on the eve of trial, both parties made custody proposals similar to the arrangement eventually agreed to in the settlement.

With regard to discovery, the [c]ourt finds that both parties were entirely and mutually unable to communicate with another, including, but not limited to, scheduling, disclosures of income, and payments of experts.   As a result, discovery in this matter became a slow, drawn-out process resulting in mounting fees for both parties that were unnecessary.   Bad faith was exhibited by both parties during the course of discovery at various points.   However, the [c]ourt acknowledges that the parties settled the matter on the date of trial demonstrating the parties' attempt to communicate with one another.

These are simply not sufficient fact-findings under the rule.   This is because the judge did not find facts identifying the discrete acts of each party on which he based his conclusion that both acted in bad faith.   Without such a finding, we cannot review the record to determine whether the finding of bad faith is supported by substantial evidence in the record.

“Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.”  Salch v. Salch, 240 N.J.Super. 441, 443 (App.Div.1990).  “The absence of adequate findings ․ necessitates a reversal․”  Heinl v. Heinl, 287 N.J.Super. 337, 347 (App.Div.1996) (citation omitted).   We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so.  Barnett & Herenchak, Inc. v. N.J. Dep't of Transp., 276 N.J.Super. 465, 473 (App.Div.1994).

Accordingly, we remand this matter to the Family Part judge with instructions to review the record as it exists at this time, without further submissions from either party, and to provide this court with more specific findings of fact in order to further appellate review.   We retain jurisdiction.   The judge is to provide this court with more specific fact-findings within thirty days of the date of this opinion.   Thereafter, the parties shall not file any additional material with the Appellate Division without leave of court.

Remanded.

PER CURIAM