ARTHUR G. WARDEN, III VS. MARY HOLOVACS (FM-14-0700-15, MORRIS COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0082-17T3
ARTHUR G. WARDEN, III,
Plaintiff-Respondent,
v.
MARY HOLOVACS,
Defendant-Appellant.
____________________________
Submitted September 13, 2018 – Decided September 24, 2018
Before Judges Suter and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0700-15.
Mary Holovacs, appellant pro se.
Laufer, Dalena, Cadicina, Jensen & Bradley, LLC,
attorneys for respondent (Christine M. Dalena, of
counsel; Mario N. Delmonaco, on the brief).
PER CURIAM
Defendant appeals from an order entered by the Family Part that granted
plaintiff's post-judgment motion to enforce litigant's rights and counsel fees,
without argument or a statement of reasons. We reverse and remand the matter
for further proceedings.
The parties entered into a marital settlement agreement and were divorced
in 2015. Plaintiff moved to enforce provisions of the agreement relative to
defendant's inability to refinance the mortgages on their farm and lake houses
that was supposed to be accomplished within one year from the date the
agreement was executed. 1 Pending the anticipated refinance, defendant agreed
to be solely responsible for all expenses pertaining to both properties. In the
event defendant was unable to refinance the properties within the one-year
timeframe, the agreement provides that the parties were to mutually agree upon
a real estate broker and list the properties for sale.
Since defendant did not secure refinancing, plaintiff claims that he
requested her compliance with the agreement in listing the properties for sale.
When she refused to acquiesce, plaintiff alleges that he was compelled to file
his motion. Prior to the return date, defendant obtained plaintiff's consent to a
1
Plaintiff was represented by counsel post-judgment and defendant proceeded
as a pro se litigant.
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thirty-day adjournment and made the request to the judge the day before the
return date.2 Defendant was advised the judge already signed an order. After
sending a handwritten fax cover sheet to the judge reiterating the adjournment
request, the law clerk allegedly told defendant no adjournment would be
granted. The order filed by the judge was the one submitted by plaintiff's
counsel, adjudicating defendant to be in violation of litigant's rights for her
"willful, knowing and intentional failure to comply" with certain terms of the
agreement. Saliently, the order compelled defendant to liquidate assets, receive
a reduced amount of alimony, turn over a Ford F-150 to plaintiff, be unilaterally
restrained from discussing the litigation with the parties' two adult children, and
pay counsel fees and costs of $1,725 within ten days. In his handwritten
statement of reasons, the judge found plaintiff's certification was "unopposed"
and that "the court is satisfied that defendant's obligations pursuant to the
agreement are as plaintiff characterizes them to be." The judge further wrote:
"The court is also satisfied that defendant has failed to fulfill these obligations.
2
Rule 5:5-4(c) provides in pertinent part: "A notice of motion shall be served
and filed, together with supporting affidavits and briefs, when necessary, not
later than 24 days before the time specified for the return date . . . . Any
opposing affidavits, cross-motions or objections shall be served and filed not
later than 15 days before the return date."
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As the results obtained are wholly in movant's favor, counsel fees are
appropriate."
On appeal, defendant raises the following arguments:
POINT ONE
THE ORDER DATED JULY 18, 2017 GRANTING
ALL TERMS OF THE HUSBAND'S PROPOSED
FORM OF ORDER AS UNOPPOSED SHOULD BE
REVERSED AS PLAIN ERROR AND HARMFUL
ERROR, AS THE ADJOURNMENT REQUEST WAS
CONSENTED TO BY BOTH PARTIES, AND IT
WAS HARSH AND UNREASONABLE TO ORDER
THE SALE OF THE FAMILY'S HOME, A GAG
ORDER BETWEEN MOTHER AND CHILDREN,
AND ATTORNEY[']S FEES WITHOUT HEARING
BOTH SIDES OF THE ISSUES. (THE ORDER WAS
DONE ON THE PAPERS AND NO VERBAL
DECISION WAS PUT ON THE RECORD.)
POINT TWO
A DELAY IN PERFORMANCE CAUSED BY A
MATERIAL INCREASE IN NON-DELEGABLE
PARENTAL DUTIES, UNANTICIPATED BY THE
PARTIES IN NEGOTIATING THE CONTRACT, AS
WELL AS UNCLEAN HANDS OF THE PARTY
SEEKING SPECIFIC PERFORMANCE JUSTIFIES
DENIAL OF THE IMMEDIATE REMEDY OF
SPECIFIC PERFORMANCE, AND JUSTIFIES
GRANTING OF ADDITIONAL TIME FOR
PERFORMANCE. (THE ORDER WAS DONE ON
THE PAPERS AND NO DECISION WAS PUT ON
THE RECORD[S]. AS THE COURT BELOW RULED
PRIOR TO THE RETURN DATE ON THE PAPERS,
AND FAILED TO ALLOW AN ADJOURNMENT
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DESPITE CONSENT, THIS ISSUE WAS NOT ABLE
TO BE RAISED BELOW, AND FACTS ARE
PROFFERED TO ELUCIDATE THE ISSUES THAT
WILL BE RAISED UPON REVERSAL OF THIS
ORDER AND REMAND FOR PLENARY HEARING
OR FULL MOTION PRACTICE.
The granting or denial of an adjournment is within the trial court's
discretion. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003). An
appellate court will reverse for failure to grant an adjournment only if the trial
court abused its discretion, causing a party a "manifest wrong or injury." State
v. Hayes, 205 N.J. 522, 537 (2011) (citation omitted). Here, defendant was thus
deprived of potential remedies.
Under these circumstances, we find the judge mistakenly exercised his
discretion in denying defendant's request for an adjournment, deciding the
motion solely on the basis of plaintiff's certification, and without placing reasons
on the record. Although we are cognizant of the trial court's need to
expeditiously move cases in the Family Part, we are mindful of the need to have
cases decided on the merits, with the full participation of the parties.
Turning to defendant's argument that the judge ruled on the papers, Rule
1:7-4(a) requires the trial court to "find the facts and state its conclusions of law
thereon in all actions tried without a jury . . . ." The nature of plaintiff's prayers
for relief required a detailed discussion of the history of the parties' conduct
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post-divorce. Because the judge failed to make the required findings and
conclusions of law, we are vacating the July 18, 2017 order and directing the
judge to issue a briefing schedule within thirty days.
Rule 4:42-9(a)(1) permits an award of counsel fees in family actions
pendente lite and on final determination in accordance with Rule 5:3-5(c). See
Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008). In determining the
fee award, the judge must address the factors set forth in Rule 5:3-5(c):
(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.
As noted by our Supreme Court, "[b]ecause it is fundamental to the
fairness of the proceedings and serves as a necessary predicate to meaningful
review . . . '[the] trial court must analyze the [relevant] factors in determining
an award of reasonable counsel fees and then must state its reasons on the record
for awarding a particular fee.'" R.M. v. Supreme Court of N.J., 190 N.J. 1, 12
(2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)).
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Here, the judge failed to provide any analysis or a statement of reasons
justifying the counsel fee award.
To the extent we have not addressed defendant's remaining arguments, we
find them without sufficient merit to warrant discussion in a written opinion.
Rule 2:11-3(e)(1)(E).
Reversed and remanded for further proceedings in conformity with this
opinion. We do not retain jurisdiction.
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