JENNINE DATTOLI VS. SCOTT A. DATTOLI(FM-16-1428-15, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2803-15T1
JENNINE DATTOLI,
Plaintiff-Respondent,
v.
SCOTT A. DATTOLI,
Defendant-Appellant.
_______________________________
Submitted May 4, 2017 - Decided June 9, 2017
Before Judges Whipple and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FM-16-1428-15.
Scott A. Dattoli, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant appeals from a default judgment of divorce filed
on January 21, 2016. He urges reversal, arguing the trial judge
utilized the wrong income for him and awarded alimony greater than
warranted based on his actual earnings. He asserts plaintiff
committed perjury during the default hearing when she testified
defendant did not pay the family's expenses, portrayed the lack
of a relationship between the parties' children and defendant, and
misrepresented the number of parenting time overnights he enjoyed.
Additionally, defendant argues the trial judge should be
disqualified because he discussed his impending retirement with
plaintiff's counsel at the conclusion of the default hearing.
Following our review of the record, we reverse and remand the
judgment because the trial judge did not make adequate findings
of fact and conclusions of law on the relief sought.
We derive the following facts from the record. The parties
were married July 9, 2000. Three children were born of the
marriage who were minors. Plaintiff filed a complaint for divorce
on April 30, 2015. The parties had few assets, save for the
marital residence, which was in foreclosure, two automobiles and
modest retirement accounts in each party's name.
Plaintiff and her counsel appeared for a default hearing on
January 21, 2016. Defendant did not appear. The issues at the
default hearing were outlined in plaintiff's notice of proposed
final judgment of divorce filed pursuant to Rule 5:5-10.
Specifically, plaintiff sought sole legal and residential custody
of the children and half of any marital assets. Further, she
requested defendant pay: open durational alimony, the cost of the
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children's medical insurance, his share of unreimbursed medical,
extracurricular activity and college costs, all joint credit card
debt, her counsel fees, and premiums on life insurance.
Only three documents were admitted into evidence, namely,
foreclosure correspondence associated with the marital residence,
one paystub belonging to plaintiff, and documents plaintiff
subpoenaed from defendant's employer regarding his earnings.
Plaintiff's case information statement (CIS) was not formally
marked and moved into evidence, but was referenced by the judge
because it had been previously filed with the court.
Plaintiff's testimony was limited. After addressing the
cause of action for divorce, her testimony supporting her custody
request was scant. Plaintiff answered leading questions from her
attorney regarding whether she desired sole legal and physical
custody of the parties' children with a simple "yes." Plaintiff's
counsel then asked plaintiff whether she believed she should be
the sole decision maker for the children's health and education
and again plaintiff's answer was "yes." No other testimony
regarding custody or parenting time was provided and no other
evidence to support the reasons for seeking sole legal and physical
custody of the children was in evidence for the judge to consider.
Plaintiff's testimony regarding alimony was equally minimal.
She requested alimony of an "indeterminate term," which the trial
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judge interpreted as a request for open durational alimony. She
explained the marriage lasted fifteen and one-half years. And
testified the documents subpoenaed from defendant's employer
revealed his income was $175,000 per year. Plaintiff described
her level of education, income, and stated she received no benefits
from her employment. When asked whether the marital lifestyle was
comfortable, plaintiff's answer was simply "yes." She testified
the parties had been separated for five years and defendant had
not supported her, causing her to rely upon her family and incur
debt. Plaintiff explained her credit had been adversely affected
by the foreclosure and she intended to rent a three-bedroom
residence for herself and the children.
Plaintiff's CIS reported $6,065 per month in expenses for
herself and the children; however, based on her limited net monthly
earned income, she suffered a monthly shortfall of $4,412.
Plaintiff testified this budget did not meet the marital standard
of living enjoyed during the marriage. Also, she anticipated
incurring counseling expenses for one child, to address issues
surrounding the divorce.
Next, by answering little more than "yes" to leading questions
by her counsel, plaintiff asked the trial judge to compel defendant
to provide health insurance for the children, pay child support,
pay one-half of the extracurricular expenses for the children,
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provide life insurance for alimony and child support, contribute
to college for the children, and pay all of the joint debt.
Plaintiff testified that she incurred $15,000 in counsel fees,
which she requested defendant pay. Lastly, regarding equitable
distribution, plaintiff's testimony was simply there were no
assets.
From this record, the trial judge referenced the notice of
proposed judgment, which mirrored plaintiff's limited testimony.
Regarding custody the trial judge said:
I've heard the testimony of the plaintiff
about the notice of final judgment, I've had
the opportunity to review the notice while she
was testifying and I have received some
exhibits. Based on all of that, I'm going to
order that the sole physical and legal custody
of the children be granted to the plaintiff.
Regarding alimony, the trial judge found:
I'm going to order that, as to support issues,
first alimony, this is a 15 and a half year
marriage. And there are particular problems.
[Defendant] has not paid an awful lot of
things. There are problems . . . all of which
are going to require a significant amount of
funds. And probably funds for quite some
time. I, therefore, will order, as requested,
that the alimony be what we call open
durational alimony. And it be in the sum of
$4,400 per month, payable each and every
month, and that will be through the Passaic
County Probation Department, and it will be
by wage garnishment.
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In a summary fashion, the trial judge adopted the child
support guidelines proffered by plaintiff, ordered defendant to
maintain health insurance for the children and contribute to their
unreimbursed medical expenses and extracurricular activities, and
required defendant to obtain $250,000 in life insurance to secure
his child support and alimony obligations. The judge declined to
address college contribution because of the children's young ages,
but then stated "the law is clear that the parties will contribute
to the college costs in proportion to their income and assets at
that time," adjudicating the issue.
Regarding equitable distribution, the judge only said:
Equitable distribution, the house is in
foreclosure, so there's not going to be
anything there to distribute. But, there are
some debts to distribute. Credit card debts.
And I will order that the defendant pay . . .
any credit card debt that's in the joint
names, or incurred by the plaintiff in her
sole name, or his debts that were incurred
[in] his name during the time of this
marriage.
On appeal, defendant seeks to vacate the judgment of divorce,
which he asserts is not supported. Generally, under our standard
of review:
findings by the trial court are binding on
appeal when supported by adequate, substan-
tial, credible evidence. . . . [A]n appellate
court should not disturb the factual findings
and legal conclusions of the trial judge
unless [it is] convinced that they are so
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manifestly unsupported by or inconsistent with
the competent, relevant and reasonably
credible evidence as to offend the interests
of justice.
[Cesare v. Cesare, 154 N.J. 394 (1998) at 411-
412 (citations omitted).]
"On the other hand, where our review addresses questions of
law, a trial judge's findings are not entitled to that same degree
of deference if they are based upon a misunderstanding of the
applicable legal principles." N.T.B. v. D.D.B., 442 N.J. Super.
205, 215 (App. Div. 2015). The appropriate standard of review for
conclusions of law is de novo. See S.D. v. M.J.R., 415 N.J. Super.
417, 430 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Rule 1:7-4(a) states:
The court shall, by an opinion or memorandum
decision, either written or oral, find the
facts and state its conclusions of law thereon
in all actions tried without a jury, on every
motion decided by a written order that is
appealable as of right, and also as required
by R. 3:29. The court shall thereupon enter
or direct the entry of the appropriate
judgment.
Specific to the issues raised in this matrimonial matter, our
Supreme Court has stated "[w]hen analyzing whether [open
durational] alimony is appropriate, the trial court is required
to make findings of fact and to state specific reasons in support
of its conclusion." See Gnall v. Gnall, 222 N.J. 414, 428 (2015).
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Failure to make explicit findings and clear statements of reasoning
"'constitutes a disservice to the litigants, the attorneys, and
the appellate court.'" Ibid. The court is required to "state
clearly its factual findings and correlate them with the relevant
legal conclusions." Ibid. "An alimony award that lacks
consideration of the factors set forth in [the statute] is
inadequate." Crews v. Crews, 164 N.J. 11, 26 (2000). N.J.S.A.
2A:34-23(b) requires the trial court to consider fourteen factors
in making an award of alimony, specifically stating "[i]n each
case where the court is asked to make an award of alimony, the
court shall consider and assess evidence with respect to all
relevant statutory factors." N.J.S.A. 2A:34-23(b).
N.J.S.A. 9:2-4(c) enumerates thirteen factors for consider-
ation of the best interests of the children in awarding custody
and parenting time. A custody determination, even in the context
of a default proceeding, requires special care to assure the best
interests of the children. This is because "[a] judgment, whether
reached by consent or adjudication, embodies a best interests
determination." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App.
Div. 1993).
This is especially so when a court awards a parent sole legal
and physical custody. Similarly, N.J.S.A. 9:2-4 states: "[t]he
Legislature finds and declares that it is in the public policy of
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this State to assure minor children of frequent and continuing
contact with both parents after the parents have separated." See
also Beck v. Beck, 86 N.J. 480, 494 (1981) and Terry v. Terry, 270
N.J. Super. 105, 119 (App. Div. 1994). See also Pascale v.
Pascale, 140 N.J. 583, 597 (1995). Therefore, an award of sole
legal and residential custody, while permissible, is a departure
from the legislative intent that must be explained in a trial
court's findings.
Similarly, an award of equitable distribution pursuant to
N.J.S.A. 2A:34-23.1 requires consideration of sixteen factors
under the statute and an award of counsel fees requires
consideration of the nine factors set forth in Rule 5:3-5(c).
We reverse the January 21, 2016 judgment because the trial
judge made virtually no findings and did not apply the law as a
part of his decision making process. Additionally, where the
trial judge did make findings, they were either inconsistent with
judgment or in error.
For instance, the judgment signed by the judge requires
defendant to procure $250,000 of life insurance coverage to insure
his child support obligation and $250,000 of coverage for his
alimony obligation. Yet, the judge's findings were: "I will order
that the defendant secure and maintain $250,000 of life insurance.
That's not a lot of insurance when it [has] to insure four people,
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being the plaintiff and the three children." Similarly, the
judgment awards counsel fees of $15,000 to the plaintiff pursuant
to N.J.S.A. 2C:25-29(b)(4), which is a mechanism for the award of
counsel fees to a successful plaintiff in a domestic violence
action, not this divorce matter.
We recognize the judgment was borne of a default hearing in
which defendant did not appear or participate and where plaintiff
did not provide copious amounts of information. But even in a
default proceeding, plaintiff must provide the court with
sufficient evidence to meet her burden of proof by a preponderance
of the evidence and the court's obligation is to make adequate
findings. Rule 1:7-4(a) does not exempt a trial court from making
findings where a party is in default.
Although the record is unclear how defendant defaulted, his
failure to participate in the proceedings, whether deliberate or
not, may have contributed to the paucity of information provided
to the trial court in the hearing. However, plaintiff bears the
burden to adduce the necessary proofs for the hearing. Regardless,
this record is insufficient to determine how the trial court
arrived at its decision on the issues before it, save for its
findings regarding the cause of action and defendant's income.
For these reasons, the judgment is reversed and the matter
remanded for a new hearing. We do not reach the balance of
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defendant's claims as they are without sufficient merit to warrant
discussion in a written opinion. Rule 2:11-3(e)(i)(E).
Reversed and remanded. We do not retain jurisdiction.
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