Opinion
DOCKET NO. A-5006-11T2
04-18-2013
CARLY McILVAINE-HALL, Plaintiff-Respondent, v. ANDREW HALL, Defendant-Appellant.
Kristin S. Pallonetti argued the cause for appellant (Law Office of Steven P. Monaghan, L.L.C., attorneys; Mr. Monaghan and Ms. Pallonetti, on the brief). Carly L. McIlvaine, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Haas and Happas.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1554-09.
Kristin S. Pallonetti argued the cause for appellant (Law Office of Steven P. Monaghan, L.L.C., attorneys; Mr. Monaghan and Ms. Pallonetti, on the brief).
Carly L. McIlvaine, respondent, argued the cause pro se. PER CURIAM
In this post-judgment matrimonial matter, defendant appeals from paragraphs three and nine of the April 27, 2012 order of the Family Part, granting plaintiff's motion to require defendant to participate in therapy "to address parenting time skills" and to pay plaintiff a portion of his 2010 fourth quarter bonus. We are constrained to reverse and remand because the trial court did not make any findings of fact or conclusions of law on the issues raised in plaintiff's motion, did not permit oral argument on the motion, and did not explain why it determined not to conduct a plenary hearing.
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 granting plaintiff's motion. 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 it determined that defendant needed to participate in therapy, why plaintiff should be granted access to the therapist, or why she was entitled to receive a portion of his quarterly bonus.
"'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, supra, 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) necessitates a remand for fulfillment of the court's obligation in this regard.
Given the necessity of a remand, we address two other issues. First, the trial court failed to explain why it did not grant defendant's request for oral argument on the motion. Rule 5:5-4(a) provides:
Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.The Rule expresses "a strong presumption favoring argument of motions other than calendar matters and routine discovery applications." Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 5:5-4 (2013). Litigants should be permitted oral argument on such motions when requested "as a matter of both due process and the appearance of due process." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997). Here, the motion presented issues that clearly could have benefited from further elucidation by way of oral argument. We discern "no special or unusual circumstance here warranting the court's dispensing with an entirely appropriate request for oral argument of a motion presumptively entitled to argument on request." Ibid.
Finally, the trial court did not explain why it did not conduct a plenary hearing before entering the two disputed provisions of the April 27, 2012 order. Of course, "[a] hearing is not required or warranted in every contested proceeding for the modification of a judgment or order[.]" Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998). However, "in a variety of contexts, courts have opined on the impermissibility of deciding contested issues of fact on the basis of conflicting affidavits or certifications alone." State v. Pyatt, 316 N.J. Super. 46, 50 (App. Div. 1998) (citations omitted), certif. denied, 158 N.J. 72 (1999). In particular, where the papers filed raise issues of fact or require credibility determinations, relief cannot be granted or denied absent a plenary hearing. Whitfield v. Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998). Here, the parties filed conflicting certifications on both of the issues in dispute. Thus, on remand, the trial court shall carefully consider whether a plenary hearing is required to resolve the factual issues raised by the parties.
We therefore reverse the trial court's determinations under paragraphs three and nine of the August 27, 2012 order, and remand this matter for further proceedings as set forth in this opinion.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION