BARBARA WEINRIB VS. MAXWELL BROTHERS(FM-11-0501-09, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1730-15T4
BARBARA WEINRIB, f/k/a
BARBARA BROTHERS,
Plaintiff-Respondent,
v.
MAXWELL BROTHERS,
Defendant-Appellant.
__________________________
Submitted March 29, 2017 – Decided September 5, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Mercer
County, Docket No. FM-11-0501-09.
Maxwell Brothers, appellant pro se.
Matthew B. Lun, attorney for respondent.
PER CURIAM
In this post-judgment matrimonial matter, defendant Maxwell
Brothers appeals from the November 5, 2015 order, which compelled
him to pay fifty percent of the unreimbursed medical expenses for
his son, B.B.,1 and the child's future educational and
extracurricular activities, and denied his requests for make-up
parenting time and counsel fees. We affirm in part, and remand
in part for further proceedings.
We derive the following facts from the record.2 Defendant
and plaintiff Barbara Weinrib were married in 1999 and divorced
in 2010. On July 6, 2010, the parties executed a consent judgment
of time sharing and custody (the consent judgment), which granted
them joint custody of B.B. and made plaintiff the parent of primary
residence, and defendant the parent of alternate residence. The
consent judgment also set the parties' parenting time schedule.
On July 15, 2010, the court entered an amended dual final
judgment of divorce (ADFJOD), which required each party to pay
fifty percent of B.B.'s unreimbursed medical expenses. The ADFJOD
also required each party to pay fifty percent of B.B.'s daycare
expenses, but was silent as to the child's future educational and
extracurricular expenses.
1
Pursuant to Rule 1:38-3, we use initials to identify the child
to protect his privacy.
2
The procedural history and statement of facts in defendant's
merit brief are not supported by citation to the appendix, in
violation of Rule 2:6-2(a)(4) and (5).
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On August 24, 2015, plaintiff filed an emergent application
seeking temporary custody of B.B. based on the child's report of
defendant's inappropriate conduct. In an August 24, 2015 order,
the court granted plaintiff temporary sole residential custody of
B.B. and temporarily suspended defendant's parenting time.
On September 8, 2015, defendant filed an emergent application
to dissolve the restraints, reinstate his parenting time, and for
makeup parenting time for the time that he missed. Defendant also
sought counsel fees.
Following a hearing, in a September 16, 2015 order, the court
dissolved the restraints, reinstated defendant's parenting time,
ordered defendant to have two additional parenting time days, and
reserved decision on defendant's request for makeup parenting time
and counsel fees. The court made no finding that the issuance of
the restraints was inappropriate or unwarranted. The court
converted the remaining issues to a motion.
On October 5, 2015, plaintiff filed a motion to enforce the
provision of the consent judgment requiring the parties to pay
fifty percent of B.B.'s unreimbursed medical expenses. Plaintiff
also sought to compel defendant to pay fifty percent of B.B.'s
future educational and extracurricular activities, among other
things. In his certification in opposition to plaintiff's motion,
defendant acknowledged his responsibility to contribute to B.B.'s
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unreimbursed medical expenses. Defendant filed a cross-motion
seeking additional parenting time, makeup parenting time, and
counsel fees, among other things.
In a November 5, 2015 order and written statement of reasons,
the court granted plaintiff's motion and denied defendant's cross-
motion. The judge found the parties had entered into the consent
judgment, and defendant missed parenting time as the result of a
court order, not plaintiff's wrongful withholding of parenting
time. The court did not find that plaintiff's emergent application
seeking temporary custody of B.B. was made in bad faith or was
meritless. The judge made no finding regarding the grant of
plaintiff's request for an order compelling defendant to pay fifty
percent of B.B.'s future educational and extracurricular
activities.
On appeal, defendant argues the court erred in requiring him
to pay fifty percent of B.B.'s unreimbursed medical expenses and
future educational and extracurricular activities, and denying his
request for makeup parenting time and counsel fees.
"In our review of a Family Part judge's motion order, we
defer to factual findings 'supported by adequate, substantial,
credible evidence' in the record." Landers v. Landers, 444 N.J.
Super. 315, 319 (App. Div. 2016) (quoting Gnall v. Gnall, 222 N.J.
414, 428 (2015)). "Reversal is warranted when we conclude a
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mistake must have been made because the trial court's factual
findings are 'manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interests of justice[.]'" Ibid. (quoting Rova Farms Resort,
Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
"However, when reviewing legal conclusions, our obligation is
different; '[t]o the extent that the trial court's decision
constitutes a legal determination, we review it de novo.'" Ibid.(quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
Applying these standards, we discern no reason to disturb the
court's ruling on defendant's obligation to pay fifty percent of
B.B.'s unreimbursed medical expenses, and the denial of his request
for makeup parenting time and counsel fees.
A consent judgment is both a contract and a judgment. Midland
Funding, L.L.C. v. Giambanco, 422 N.J. Super. 301, 310 (App. Div.
2011). A consent judgment is akin to a settlement agreement. In
the matrimonial context, a settlement agreement may be modified
upon a showing of changed circumstances. Heller-Loren v. Apuzzio,
371 N.J. Super. 518, 535 (App. Div. 2004).
Here, the consent judgment required defendant to pay fifty
percent of B.B.'s unreimbursed medical expenses. Defendant never
sought to modify the consent judgment and, in fact, acknowledged
this obligation in his certification. In addition, the record is
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devoid of any evidence of changed circumstances that would warrant
deviation from the consent judgment. Accordingly, we affirm the
court's decision to compel defendant to pay fifty percent of B.B.'s
unreimbursed medical expenses.
We affirm the court's denial of defendant's request for
counsel fees. An award of counsel fees in matrimonial matters is
discretionary. R. 5:3-5(c); Williams v. Williams, 59 N.J. 229,
233 (1971). We will not disturb a counsel fee award absent a
showing of "an abuse of discretion involving a clear error in
judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div.
2010), aff'd, 208 N.J. 409 (2011); Chestone v. Chestone, 322 N.J.
Super. 250, 258 (App. Div. 1999). There was no abuse of discretion
here, as the record is devoid of evidence warranting an award of
counsel fees to defendant.
We also affirm the court's denial of defendant's request for
makeup parenting time for the reasons expressed in the court's
written statement of reasons, and because when resolving the
restraints, the court gave defendant two additional parenting time
days.
We reach a different conclusion as to the court's decision
to compel defendant to pay fifty percent of B.B.'s future
educational and extracurricular activities. A trial court's
obligation to make findings of fact and conclusions of law is
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critical to an appellate court's "meaningful review." Ronan v.
Adely, 182 N.J. 103, 110-11 (2004). Judges must make findings of
fact and conclusions of law "in all actions tried without a jury,
on every motion decided by a written order that is appealable as
of right[.]" R. 1:7-4. This requires judges to articulate
"specific findings of fact and conclusions of law." Pressler &
Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2013).
"Naked conclusions are insufficient. A judge must fully and
specifically articulate findings of fact and conclusions of law."
Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). If
sufficiently clear factual findings are absent from the record,
we will reverse and remand to the trial court for additional
findings. Curtis v. Finneran, 83 N.J. 563, 571 (1980).
The ADFJOD is silent on the issue of apportionment of B.B.'s
future educational and extracurricular expenses. The court made
no findings with respect to this issue. We thus remand the matter
for the trial court to make specific findings on this issue. See
R. 1:7-4.
Affirmed in part and remanded in part. We do not retain
jurisdiction.
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