VICTORIA TOLSTUNOV VS. ROSTISLAV VILSHTEYN (FM-14-1000-15, 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NOT FOR PUBLICATION WITHOUT THE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-1495-16T4
VICTORIA TOLSTUNOV,
Plaintiff-Respondent,
v.
ROSTISLAV VILSHTEYN,
Defendant-Appellant.
__________________________________
Argued April 9, 2018 – Decided July 30, 2018
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-1000-15.
Lawrence H. Kleiner argued the cause for
appellant.
Ari H. Gourvitz argued the cause for
respondent (Gourvitz & Gourvitz, LLC,
attorneys; Ari H. Gourvitz and Elliot H.
Gourvitz, on the brief).
PER CURIAM
In this matrimonial appeal, defendant-husband Rostislav
Vilshteyn appeals from aspects of three overlapping trial court
orders, including a final judgment of divorce (FJD). On October
24, 2016, the court entered an omnibus order that dismissed
defendant's pleadings with prejudice for discovery violations;
granted plaintiff partial summary judgment, mirroring provisions
in a Partial Marital Settlement Agreement (PMSA), which, defendant
argues, the parties intended to be temporary; allocated the
parties' marital debt; and awarded attorney's fees to plaintiff.
A second order denied defendant's cross-motion to reinstate his
answer and counterclaim. The court also entered a FJD, which
incorporated the PMSA, and the omnibus order. Defendant contends
the court erred in (1) failing to provide a statement of reasons
for its decision; (2) denying his motion to reinstate his pleadings
and instead dismissing them with prejudice; (3) granting partial
summary judgment; (4) enforcing the PMSA; and (5) awarding
plaintiff attorney's fees. We reverse and remand for further
proceedings.
I.
Plaintiff-wife Victoria Tolstunov filed her divorce complaint
in February 2015, after less than seven years of marriage,
including a period of separation. The parties have one child.
Plaintiff alleged adultery as the sole basis for the divorce. She
cited a January 2015 text message from defendant acknowledging he
had a girlfriend.
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During the marriage, defendant was convicted of Medicaid
fraud and incarcerated between September 2013 and June 2014, and
again between September 2015 and August 2016. See State v.
Vilshteyn, No. A-4202-11 (App. Div. Aug. 20, 2013) (affirming
conviction to second-degree health care claims fraud, N.J.S.A.
2C:21-4.2 and -4.3(c), and third-degree Medicaid fraud, N.J.S.A.
30:4D-17(b)). Defendant was sentenced to a five-year prison term
and ordered to pay $200,000 in restitution, fines, penalties and
assessments. Ibid.1 Defendant was returned to custody in
September 2015 after allegedly violating the terms of the Intensive
Supervision Program (ISP). He was released again to ISP in August
2016, after he was exonerated of the violation.
Only some aspects of the extensive procedural history are
relevant to the issues on appeal. The court entered default after
defendant failed to answer the complaint. Rather than enter
default judgment as plaintiff thereafter proposed pursuant to Rule
5:5-10, the court allowed, and then granted, defendant's motion
to vacate default. In August 2015, defendant filed an answer
denying plaintiff's factual allegations related to adultery, but
did not assert a defense to the cause of action. He filed a
1
Defendant contended the remaining restitution was $83,000 in the
fall of 2016.
3 A-1495-16T4
counterclaim seeking divorce based on irreconcilable differences
causing a breakdown of the marriage for more than six months.
In its October 2015 order, the court compelled the parties
to exchange discovery, and defendant to pay plaintiff's reasonable
attorney's fees associated with the motion, which it later set at
$4583.19. A case management order a month later acknowledged that
defendant was incarcerated, but ordered him to pay the full cost
of a custody expert, and to file a completed case information
statement (CIS) in a week.
In February 2016, on plaintiff's motion and pursuant to Rule
4:23-5(a)(1) and Rule 1:10-1, the court again dismissed and
suppressed defendant's pleading. In response to plaintiff's
motion, defendant contended he had complied with discovery, and
provided copies of his newly minted responses to plaintiff's
interrogatories, custody interrogatories, request for admissions,
and notice to produce. The court credited plaintiff's contention
that defendant's responses were incomplete, but the court did not
specify the deficiencies. The court noted that defendant was
incarcerated, but found no "viable explanation" for his failure
to comply. The court awarded plaintiff fees of $2585. The court
noted that "the parties may have enjoyed a luxurious lifestyle,
[but] it was obviously based on criminal proceeds."
4 A-1495-16T4
In June 2016, invoking Rule 4:23-2 and Rule 4:23-5(a)(2),
plaintiff sought dismissal and suppression with prejudice,
contending defendant: failed to comply with the court's prior
order to pay fees; failed to provide proof that he filed an amended
tax return as required (although he provided a copy of the return);
and failed to answer discovery, without specifying the
deficiencies. Plaintiff also sought partial summary judgment on
issues of child support, custody, alimony, marital debt, and
medical insurance. She sought $322 per week in child support and
allocation of the cost of the child's school and extracurricular
activities; sole legal and physical custody of the child; mutual
waiver of alimony; and allocation of the marital debt. As for
medical insurance, plaintiff requested that defendant obtain his
own; she would provide it for the child. She also sought to
prohibit defendant from claiming the child as a dependent for tax
purposes.
However, plaintiff postponed consideration of the motion, as
the parties were engaged in discussions that ultimately led to the
defendant and plaintiff signing a PMSA in early July, and a second
one later that month.2 The first PMSA reflected defendant's
2
Defendant's signature on the first was dated July 6, 2016, and
his second on July 28, 2016. Plaintiff's signatures were not
dated.
5 A-1495-16T4
review, including his initials on each page, and next to individual
provisions. The first PMSA included a mutual waiver of alimony.
It also granted plaintiff sole legal and physical custody of the
child, denied defendant parenting time, and barred him from
contacting the child until further order or agreement of the
parties. A separate provision acknowledged the parties' rights
to seek post-judgment relief.
The parties mutually waived their rights to take further
discovery and defendant acknowledged that he had "not
substantially answered the discovery propounded," and his
pleadings were "dismissed." Plaintiff stated she was "completely
satisfied with the financial disclosures from her Husband." The
PMSA stated that each party was to be responsible for their own
counsel fees "associated with the dissolution of the marriage,
except as otherwise stated in paragraph 6.2 above" — although
there is no paragraph 6.2 — but granted a right to fees for
enforcement of the PMSA.
The first agreement included defendant's handwritten cross-
outs of numerous provisions, including those: setting his child
support obligation at $250 a week; imputing $100,000 in annual
income to him and $49,000 to plaintiff "for the sole purpose of
[the child support] . . . calculation"; obliging defendant to pay
sixty-four percent of the cost of the child's Montessori tuition
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and extracurricular activities, and stating he would be entitled
to receive information about the activities and school when he was
released from prison; and suspending enforcement while he was
incarcerated. Also crossed out were provisions obliging defendant
to obtain $300,000 in life insurance; to pay sixty-four percent
of the child's unreimbursed medical costs; identifying marital
debt and allocating it equally; and affirming prior fee awards.
The various cross-outs were in addition to changes reflected in
the typescript, typical of a "redline" version. The word "Partial"
was handwritten on the agreement's title page.
The second agreement mirrored the first, but it left intact,
without further revision, provisions that were previously crossed-
out. The second version restored the provision pertaining to
child support and imputation of income, except the part stating
that enforcement would await defendant's release remained crossed
out. Instead, it was annotated, "Judge to decide." Also, restored
were the provisions on life insurance and the costs of unreimbursed
medical expenses, Montessori and extracurricular activities. The
provision on marital debt remained crossed out, but it now included
the annotation, "Judge to decide."
Two months after defendant's release from incarceration, he
sought to reinstate his pleadings. He blamed his incarceration
for his failure to pay ordered fees and his incomplete production
7 A-1495-16T4
of documents. He said that his previous responses were truthful,
although he incompletely produced documents, because he had no
access to them while incarcerated. He stated that he provided
additional financial and tax information after his release.
Defendant did not object to the dissolution of his marriage, but
he contested plaintiff's allegation of adultery.
Defendant objected to plaintiff having sole legal and
physical custody of the child, asserting — contrary to plaintiff's
allegations — he was an attentive and responsible father before
his incarceration, and his lack of contact was plaintiff's fault.
Defendant challenged the PMSA provision on custody, and other
"financial agreements":
I do not dispute that while incarcerated on
the wrongful I.S.P. violation I also agreed
to give the Plaintiff sole legal and physical
custody, as well as agreeing to a suspension
of my visitation pending my incarceration.
However that agreement, as well as various
financial agreements, was solely conditioned
upon my release, which has since occurred on
August 26, 2016. . . . Therefore, as I no
longer agree to the terms of the partial
Marital Settlement Agreement, I am
respectfully requesting that the Court
litigate this matter on the merits, finding
that the Settlement Agreement was nothing more
than an interim agreement pending my release
from jail.
Also in October 2016, plaintiff's attorney asked the court
to grant her motion for partial summary judgment, in accordance
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with the PMSA's terms. Counsel argued that defendant did not
comply with discovery as he still had not filed an updated CIS,
and did not amend his answers to interrogatories or notice to
produce, and instead "dumped" a volume of documents on plaintiff's
counsel after he filed his cross-motion. In an opposing
certification, plaintiff itemized the parties' marital debt, and
requested defendant be ordered to pay sixty-four percent of it.
She also alleged that defendant had no relationship with the child
before his incarceration. She asked the court to enforce the
custody agreement in the PMSA. Plaintiff stated "I am not denying
that [d]efendant someday will have the ability to see his son, but
I do not believe that there is anything wrong in asking him to be
drug tested, and go through psychiatric and substance abuse
evaluation(s) . . . ."
At oral argument, plaintiff's counsel argued that the court
should dismiss defendant's pleadings with prejudice for failure
to answer discovery. He asserted that defendant's failures were
"willful" and "deliberate." Further, counsel argued that the PMSA
was not a pendente lite agreement because it was drafted in
anticipation of defendant's release from jail. Counsel added that
defendant should be responsible for sixty-four percent of the
marital debt, and plaintiff's attorney's fees. Plaintiff's
counsel also requested that the court grant the parties' divorce
9 A-1495-16T4
and incorporate the PMSA, based on plaintiff's June 2016
certification.
Defendant's counsel argued that defendant's wrongful
incarceration played a central role in the prolonged history of
the divorce proceeding, and defendant should not be responsible
for all of plaintiff's attorney's fees. Counsel argued that while
defendant signed the PMSA, it was only meant to be a partial
agreement that controlled while he was in jail. Counsel
acknowledged that this stipulation was not written in the
agreement, but argued that defendant only agreed to plaintiff
having custody of the child while he was in jail because he did
not want the child visiting him there.3 Counsel urged the court
to consider the provision in the PMSA, which states the parties
are free to file post-judgment motions, as evidence that the
agreement was modifiable and not final.
Defense counsel further argued that defendant complied with
discovery, providing financial documentation for the previous
three years – commenting that plaintiff's request for documents
from the past five years was "overly burdensome" – and asserted
3
Defendant stated in his certification, "While incarcerated from
2013 to 2014, the Plaintiff . . . brought my son only one time to
see me after multiple repeated requests to see him." But, during
his second incarceration, he acquiesced to his counsel's request
that he suspend visitation when he was held in the Passaic County
jail, to avoid traumatizing or causing the child stress.
10 A-1495-16T4
that the documents were not "dumped" on plaintiff's counsel, but
rather were appropriately annotated and organized. Counsel also
represented that defendant filed an amended 2014 tax return. She
offered defendant's testimony on this fact, but the court declined
to hear it.4 On the issue of marital debt, counsel argued that
the allocation agreed upon in the PMSA with respect to the child's
expenses should not automatically apply.
The court found no support in the PMSA's text for defendant's
argument that the agreement was intended only to apply temporarily.
Recognition of defendant's right to seek post-judgment relief did
not render the custody provision temporary. "Where there's an
agreement between parties getting divorced . . . the [c]ourt's
required to enforce the terms of the agreement that are fair and
that are expressed. I can't rewrite the agreement." However, the
court made no explicit findings regarding the fairness of the
agreement, or that the parties entered into it voluntarily and
knowingly.
The court held that discovery was irrelevant, except for
those issues left open by the PMSA. The court awarded attorney's
fees, stating only: "I'm satisfied that plaintiff is entitled to
4
Defendant's 2014 tax return, submitted to this court in
plaintiff's appendix, is on an "Amended U.S. Individual Income Tax
Return" form.
11 A-1495-16T4
an award of counsel fees. This case has gone on too long. This
— I mean she's had to pay over $11,000 in accumulating fees because
of debt." The court noted that the PMSA allocated sixty-four
percent of certain expenses to defendant, and thirty-six percent
to plaintiff, and the ratio of imputed income was slightly higher.
As for the cause of action, the court stated, "I am going to
grant divorce to plaintiff. . . . I'm going to grant it based
upon her certification. It's clear she's entitled to a divorce."
The court added, "And that will give defendant an opportunity to
move forward with his application to change the custody arrangement
that he agreed on in July." The court reserved judgment on the
distribution of marital debt.
Two days later, the court issued the orders referenced above
without a further statement of reasons. The FJD, as submitted by
plaintiff's counsel, and which the court entered, stated that
plaintiff had proved a cause of action for divorce "as alleged in
the Complaint." The FJD stated that the court reviewed plaintiff's
complaint and her sworn certification, without any reference to
defendant's certifications. The court incorporated the PMSA,
again without any finding that the parties entered into it
voluntarily and knowingly, and expressly declining to rule on its
fairness and reasonableness.
12 A-1495-16T4
Notwithstanding the court's statement that discovery was
irrelevant, the court denied defendant's motion for reinstatement
and dismissed and suppressed his pleading with prejudice pursuant
to Rule 4:23-2, for violating the court's October 20, 2015 order,
and Rule 4:23-5(a)(2), for discovery violations. The court granted
plaintiff partial summary judgment on the points originally
requested in her June 2016 motion, but adjusted the relief in
accordance with the terms in the PMSA. In addition, the court
granted partial summary judgment as to the marital debt, assigning
defendant sixty-four percent of the costs, totaling $18,721.31.
The court also ordered defendant to pay plaintiff's attorney's
fees, totaling $9,035, incurred in connection with the partial
summary judgment motion.
This appeal followed.
II.
A.
We begin with our standard of review. Generally, we defer
to the Family Part's fact findings that are rooted in its
familiarity with the case, its opportunity to make credibility
judgments based on live testimony, and its expertise in family
matters. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). However,
we review legal issues de novo, Slutsky v. Slutsky, 451 N.J. Super.
332, 345 (App. Div. 2017), including issues of contract
13 A-1495-16T4
interpretation of a matrimonial settlement agreement, see Quinn
v. Quinn, 225 N.J. 34, 45 (2016) (stating that contract principles
apply to the interpretation of matrimonial settlement agreements);
Kieffer v. Best Buy, Inc., 205 N.J. 213, 222-23 (2011) (stating
that the interpretation of a contract is an issue of law that an
appellate court reviews de novo). We also owe no deference if the
trial court overlooks governing legal standards, Gotlib v. Gotlib,
399 N.J. Super. 295, 309 (App. Div. 2008), or enters an order that
lacks evidential support, Mackinnon v. Mackinnon, 191 N.J. 240,
254 (2007).
Furthermore, the trial court's failure to articulate adequate
findings of fact and conclusions of law pursuant to Rule 1:7-4
generally necessitates a reversal and remand. See Strahan v.
Strahan, 402 N.J. Super. 298, (App. Div. 2008) (reversing and
remanding for failure to make adequate findings of fact and
conclusions of law regarding child support calculation and
imputation of income); Heinl v. Heinl, 287 N.J. Super. 337, 347
(App. Div. 1996) ("The absence of adequate findings, as here,
necessitates a reversal to allow the trial judge to reconsider the
alimony decision."). Applying these standards, and for the reasons
set forth below, we are constrained to reverse and remand, as the
trial court's orders suffer from procedural and legal error, and
14 A-1495-16T4
are generally unsupported by adequate findings of fact and
conclusions of law.
B.
We turn first to the PMSA. We are guided by well-established
principles. "Settlement of disputes, including matrimonial
disputes, is encouraged and highly valued in our system." Quinn,
225 N.J. at 44. We generally apply basic contract principles in
interpreting matrimonial settlement agreements. Id. at 45.
However, those principles are tempered by principles of equity.
Id. at 45-46. As the Court observed, "To be sure, 'the law grants
particular leniency to agreements made in the domestic arena and
vests 'judges greater discretion when interpreting such
agreements.'" Ibid. (quoting Pacifico v. Pacifico, 190 N.J. 258,
266 (2007)). "A narrow exception to the general rule of enforcing
settlements as the parties intended is the need to reform a
settlement agreement due to 'unconscionability, fraud, or
overreaching in the negotiations of the settlement.'" Id. at 47
(quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).
A court is obliged to ascertain that the parties have
voluntarily and knowingly entered into a matrimonial settlement
agreement, because such a finding is a precondition of
enforceability. See id. at 39 (stating that PSA providing for
alimony termination upon cohabitation is "enforceable when the
15 A-1495-16T4
parties enter such agreements knowingly and voluntarily"); id. at
55 (stating agreement is enforceable absent "evidence of
overreaching, fraud or coercion").
The court is generally obliged to take testimony, in order
to reach such findings. See, e.g., Gere v. Louis, 209 N.J. 486,
501-03 (2012) (noting court's finding based on testimony);
Ehrenworth v. Ehrenworth, 187 N.J. Super. 342, 343-46 (App. Div.
1982) (setting forth extensive voir dire of parties before
accepting marital settlement agreement); see also 1 Gary N. Skoloff
& Laurence J. Cutler, New Jersey Family Law Practice, § 1.9A(2)
at 1:288 (15th ed. 2012) ("In cases in which the agreement is to
be incorporated, the court will take testimony to ascertain whether
the parties have knowingly, willingly and voluntarily entered into
the agreement . . . ."). A boilerplate recital in the PMSA itself
that the parties have executed the agreement voluntarily is of no
consequence, particularly when, as here, the statement is not
sworn or certified. See R. 1:6-6.
Here, the court incorporated the PMSA into the FJD without
taking any testimony or making any essential findings regarding
whether the parties entered into it knowingly and voluntarily. On
that basis alone, incorporation of the PMSA was error.
However, in this case, the court was obliged to do more than
ascertain whether the parties entered the agreement voluntarily
16 A-1495-16T4
and knowingly. Defendant focused his challenge to the PMSA on the
provision in which he not only forfeited any claim to legal and
residential custody of his child, but agreed to avoid all contact
with his child. Defendant contended he believed the provision
applied only while he was incarcerated. We agree that there is
no textual support for his claim. Indeed, the text itself
undermines the claim, by explicitly referencing his release from
incarceration in other provisions, but not as to custody and
parenting time.
Nonetheless, the court was required to review the custody and
parenting time provision because it affected not only defendant's
rights; it affected the welfare of the child. "In custody cases,
it is well settled that the court's primary consideration is the
best interests of the children." Hand v. Hand, 391 N.J. Super.
102, 105 (App. Div. 2007); see also Colca v. Anson, 413 N.J. Super.
405, 414 (App. Div. 2010). A "child cannot be prejudiced by an
agreement between parents." Kopak v. Polzer, 4 N.J. 327, 333
(1950); see also Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div.
2006) (stating that parties may not "bargain away a child's right
to support because the right to support belongs to the child, not
the parent . . . ."); Gulick v. Gulick, 113 N.J. Super. 366, 371
(Ch. Div. 1971) (stating that "the conscience of equity will not
17 A-1495-16T4
permit present needs of children to be limited by the agreement
of the [parties]").
A court shall not enforce parents' custody arrangement if it
is contrary to the child's best interests. N.J.S.A. 9:2-4(d)
("The court shall order any custody arrangement which is agreed
to by both parents unless it is contrary to the best interests of
the child."). A child is entitled to maintain and develop a
relationship with each parent. See Cooper v. Cooper, 99 N.J. 42,
50 (1984) (noting "mutual right of the child and the noncustodial
parent to develop and maintain their familial relationship");
N.J.S.A. 9:2-4 (finding "it is in the public policy of this State
to assure minor children of frequent and continuing contact with
both parents"). "The agreement between the parties has no binding
effect insofar as visitation is concerned. The question is always
what is in the best interests of the children no matter what the
parties may have agreed to." Hallberg v. Hallberg, 113 N.J. Super.
205, 209 (App. Div. 1971).
The parties' respective certifications created a factual
dispute as to defendant's relationship with his child; defendant's
capacity to serve as a responsible parent; and plaintiff's
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cooperation in nurturing the father-child relationship.5 In
ascertaining the child's best interests, the court may not resolve
material factual disputes without a plenary hearing. See K.A.F.
v. D.L.M., 437 N.J. Super. 123, 137 (App. Div. 2014). "Even where
a party waives a plenary hearing, 'the matter of visitation is so
important, especially during the formative years of a child, that
if a plenary hearing will better enable a court to fashion a plan
of visitation more commensurate with a child's welfare,
nonetheless it should require it.'" Id. at 138 (quoting Wagner
v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979)). The trial
court's failure to conduct a plenary hearing on whether the custody
agreement serves the child's best interests, even if defendant
entered it knowingly and voluntarily, requires reversal. See id.
at 140.
In sum, it was error for the court to incorporate the PMSA
wholesale into the FJD. As a result, we are constrained to vacate
the FJD. Moreover, inasmuch as the PMSA was apparently the basis
5
We acknowledge plaintiff's allegation, which defendant
contested, that defendant suffered from a substance abuse problem.
However, even if that were so, the record does not support a
conclusion that it was in the best interests of the child to have
zero contact with defendant. Options such as supervised parenting
time, or parenting time conditioned upon appropriate drug testing,
might enable the child to maintain a relationship with defendant,
and should be explored on remand.
19 A-1495-16T4
of the court's grant of partial summary judgment, that order must
be reversed as well.
C.
We are also constrained to reverse the trial court's
discovery-related orders. As noted, as a discovery sanction, the
court granted plaintiff's motion to dismiss and suppress with
prejudice defendant's counterclaim and answer, and denied
defendant's motion to reinstate.
We review the trial court's discovery ruling for an abuse of
discretion and shall not disturb it absent an injustice. See
Bender v. Adelson, 187 N.J. 411, 428 (2006) (reviewing for an
abuse of discretion a "trial court's decision to bar defendants'
requested amendments to their interrogatory answers and deny a
further discovery extension"); Abtrax Pharms., Inc. v. Elkins-
Sinn, Inc., 139 N.J. 499, 517 (1995) (stating appellate courts
shall review the dismissal of a complaint with prejudice "for
discovery misconduct" under an abuse of discretion standard and
shall not "interfere unless an injustice appears to have been
done"). A court abuses its discretion when it makes a decision
"without a rational explanation." Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571 (2002).
Courts should order dismissal "sparingly" because it is "the
ultimate sanction." Id. at 514. Even if there is a discovery
20 A-1495-16T4
violation, in deciding whether to "suspend the imposition of
sanctions," a court should consider whether there was "absence of
a design to mislead"; "absence of the element of surprise if the
evidence is admitted"; and "absence of prejudice from admission
of the evidence." Wymbs v. Twp. of Wayne, 163 N.J. 523, 544
(2000). Furthermore, "[i]f there is a bona fide dispute over the
responsiveness of the answers, then it is error to dismiss the
complaint." Adedoyin v. Arc of Morris Cnty., 325 N.J. Super. 173,
181 (App. Div. 1999).
Here, the court provided no explanation for its discovery-
related decisions. It was obliged to review the competing
certifications, to ascertain whether: the specific discovery
requests were reasonable and not unduly burdensome; defendant's
incarceration provided good cause for any shortcomings in his
responses; defendant ultimately complied fully or reasonably with
the discovery requests; and plaintiff abided by the procedural
requirements of Rule 4:23-5. To the extent defendant failed to
comply with discovery – the court was required to determine whether
the violations were significant enough to justify the extreme
sanction of suppression and dismissal. See id. at 175 (reversing
and remanding dismissal under Rule 4:23-5(a)(1) for further
factfinding, as trial court did not explain why it dismissed
instead of compelling more specific answers).
21 A-1495-16T4
Furthermore, the court stated in its oral decision that
discovery was "irrelevant." If so, then the basis for dismissing
and suppressing defendant's pleadings is all the more perplexing.
Lastly, if the PMSA is enforceable, then according to its plain
terms, plaintiff waived any further objection to defendant's
discovery responses.
In sum, we reverse the court's discovery-related orders and
remand for reconsideration. The parties may update their discovery
requests and disclosures given the passage of time while the appeal
has been pending.
D.
Even if the PMSA is deemed enforceable on remand, the court's
allocation of marital debt must be reversed. As with other aspects
of the court's ruling, the decision lacks any explanation that
would permit appellate review.
The allocation of responsibility for the parties' marital
debts is subject to the same factors as the equitable distribution
of assets. See Slutsky, 451 N.J. Super. at 348; Ionno v. Ionno,
148 N.J. Super. 259, 262 (App. Div. 1977); see also Rothman v.
Rothman, 65 N.J. 219, 232 (1974) (stating that a court must first
identify the property subject to distribution; determine its
value; then allocate it most equitably). Once the court identifies
the debts that are subject to distribution, it must allocate them
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after considering the sixteen statutory factors identified in
N.J.S.A. 2A:34-23.1. Elrom v. Elrom, 439 N.J. Super. 424, 444
(App. Div. 2015).
"In every case . . . the court shall make specific findings
of fact on the evidence relevant to all issues pertaining to asset
eligibility or ineligibility, asset valuations, and equitable
distribution . . . ." N.J.S.A. 2A:34-23.1. Here, the court made
none. The court did not explain the basis for identifying and
quantifying the various marital debts; nor did the court explain
its reasoning for allocating sixty-four percent of them to
defendant.
We recognize that a 64:36 formula was used to allocate certain
expenses in the PMSA, however, the PMSA reflects a lack of
agreement to apply that ratio to marital debts. Even if the court
concluded that the ratio of the parties' respective actual or
imputed incomes was 64:36, the parties' relative incomes
constitute just one factor in the equitable distribution analysis.
See N.J.S.A. 2A:34-23.1(g). For these reasons, the court's
allocation of marital debt must be reversed and reconsidered.
E.
In the order granting partial summary judgment, the court
awarded plaintiff $9035 in fees "for this application." The
court's sole explanation for the award was its oral observation
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that "[t]his case has gone on too long" and plaintiff had incurred
fees. The award of counsel fees is discretionary, and should be
disturbed "only on the rarest occasions, and then only because of
a clear abuse of discretion." Packard-Bamberger & Co. v. Collier,
167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J.
292, 317 (1995)); see also Barr v. Barr, 418 N.J. Super 18, 46
(App. Div. 2011). However, a court abuses its discretion when it
fails to consider the factors set forth in Rule 5:3-5(c). See
B.G. v. L.H., 450 N.J. Super. 438, 464 (App. Div. 2017) (stating
that "[i]n considering a request for legal fees, the court must
consider the factors set forth in Rule 5:3-5(c)"). Consequently,
we are constrained to reverse the fee award and remand for
reconsideration. See Clarke v. Clarke ex rel. Costine, 359 N.J.
Super. 562, 572 (App. Div. 2003) (remanding for reconsideration
of fee award where court "did not address the pertinent factors
under Rule 5:3-5(c), and failed to make the required findings set
forth therein") (citing Rule 1:7-4). Furthermore, if the court
finds that the PMSA is enforceable, it must consider the
significance of the parties' mutual waiver of attorney's fees
expressed in that document.
Reversed and remanded. We do not retain jurisdiction.
24 A-1495-16T4