NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-1745-17T2 A-4985-17T2 A. MANNY ALICANDRO,
Plaintiff-Appellant,
v.
SHARON ALICANDRO, n/k/a SHARON MCQUEEN,
Defendant-Respondent. ____________________________
Argued March 18, 2019 – Decided July 10, 2019
Before Judges Haas and Sumners.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0289-06.
Scott Adam Laterra argued the cause for appellant in A-1745-17 (Laterra & Hodge, LLC, attorneys; Scott Adam Laterra, of counsel and on the brief).
Howard A. Bachman argued the cause for respondent in A-1745-17 (Dwyer Bachman & Newman, LLC, attorneys; Howard A. Bachman, of counsel and on the brief). A. Manny Alicandro, appellant, argued the cause pro se in A-4985-17.
Sharon McQueen, respondent, argued the cause pro se in A-4985-17.
PER CURIAM
These two appeals have been calendared back to back for the purpose of
a single opinion. A-1745-17 arises from an order dated December 4, 2017,
where the trial judge, without a plenary hearing or oral argument, granted
defendant Sharon Alicandro n/k/a McQueen's motion for reconsideration,
increasing plaintiff A. Manny Alicandro's child support obligations for their two
children, and requiring plaintiff to pay eighty percent of their daughter's college
expenses. A-4985-17 arises from an order dated June 25, 2018, where the same
judge, again without a plenary hearing or oral argument, denied defendant's
motion to enforce litigant's rights to compel plaintiff to pay their daughter's
college tuition as moot because he paid it prior to the motion's return date, but
ordered plaintiff without explaining the basis for the amount of the award to
reimburse defendant $2000 in attorney's fees she incurred in filing the motion.
We reverse and remand both matters. In A-1745-17, the judge should
have conducted a plenary hearing to resolve disputed material facts regarding
child support and contribution of college tuition. In A-4985-17, the judge failed
A-1745-17T2 2 to set forth her findings of facts and legal conclusions regarding the amount of
plaintiff's attorney's fees defendant must pay. Moreover, beyond these
shortcomings, the judge should have conducted oral argument in both matters.
I.
Plaintiff and defendant were married on October 9, 1991. Two children
were born of the marriage, F.A. (Fiona), in August 1999, and D.A., in September
2000.1 On March 28, 2007, the parties were divorced by way of a Dual Judgment
of Divorce, which incorporated an Interspousal Agreement setting forth their
financial obligations with respect to their children. They later entered into a
consent order on October 17, 2016, through which plaintiff's alimony obligation
was terminated effective October 1, 2016. The order also stated, "[b]y
September 30, 2016, the parties shall exchange 2015 income tax returns, W-2's,
and their three (3) most recent paystubs, for the purpose of recalculating child
support," which would take effect October 1, 2016. The parties were unable to
facilitate this exchange and recalculation without court intervention, thus the
following litigation commenced.
1 We use initials and fictitious names to identify the parties to protect and preserve their confidentiality. R. 1:38-3(d)(12). A-1745-17T2 3 A-1745-17
In 2017, defendant filed a motion seeking an increase in plaintiff's child
support, compelling him to contribute his share of Fiona's college education, and
attorney's fees and costs. Plaintiff cross-moved to decrease child support by
requiring the imputation of: defendant's income due to the payoff of her
mortgage by her live-in boyfriend; the boyfriend's shared household expenses;
and his salary decrease. Plaintiff also wanted his share of Fiona's college tuition
to take into consideration scholarships, loans, and her earnings and savings . He
also sought an award of attorney's fees and sanctions against defendant's
counsel.
On August 29, without honoring the parties' request for oral argument, the
trial judge ordered, in pertinent part, the recalculation of child support and
allocation of Fiona's college tuition to twenty percent for plaintiff, ten percent
for defendant and the remaining seventy percent to be Fiona's responsibility.
The judge explained her decision in a statement of reasons attached to the order.
Defendant moved for reconsideration. Again, the judge did not honor the
parties' request for oral argument and entered an order on December 4,
modifying child support and drastically changing the college tuition contribution
A-1745-17T2 4 for Fiona to eighty percent for plaintiff, twenty percent for defendant, with no
contribution from Fiona. In her statement of reasons attached to the order, the
judge stated reconsideration was granted because her initial decision was
inadvertently based on the facts of a different case. This appeal followed.
A-4985-17
Plaintiff sought a stay of the December 4 order. The trial court and our
court denied the application. Plaintiff received a copy of our order on April 30,
2018.
On May 3, plaintiff allegedly wrote and mailed a check for $6,085.52 to
defendant, the balance of his share of Fiona's tuition. The next day, defendant
filed a post-judgment notice of motion to enforce litigant's rights, seeking to
compel plaintiff to pay his share of Fiona's college tuition and attorney's fees
and costs. The motion included defendant's supporting certification with
exhibits, and a certification of attorney's fees and costs. Defendant requested
oral argument if opposition was filed.
On May 8, plaintiff filed his opposition and cross-moved seeking to deny
defendant's motion as moot because he paid his share of Fiona's tuition. Plaintiff
raised concerns regarding the reasonableness and authenticity of attorney's fees,
the timing of defendant's motion, and her failure to resolve the issue before filing
A-1745-17T2 5 a motion with a "simple phone call or email." Plaintiff also requested oral
argument.
The judge did not allow oral argument, and ordered that the tuition issue
was moot because plaintiff made the payment to defendant. Nevertheless, the
judge ordered plaintiff to pay defendant $2000 in attorney's fees and costs –
$4385 was requested – without an explanation as to how she determined that
amount. This appeal followed.
II.
A.
In A-1745-17, plaintiff contends that the trial judge should have
conducted a plenary hearing and honored his request for oral argument. We
agree.
A plenary hearing is necessary when the parties' submissions show "a
genuine and substantial factual dispute." Hand v. Hand, 391 N.J. Super. 102,
105 (App. Div. 2007); see also Spangenberg v. Kolakowski, 442 N.J. Super.
529, 540-41 (App. Div. 2015). A trial judge may not resolve material factual
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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 NOS. A-1745-17T2 A-4985-17T2 A. MANNY ALICANDRO,
Plaintiff-Appellant,
v.
SHARON ALICANDRO, n/k/a SHARON MCQUEEN,
Defendant-Respondent. ____________________________
Argued March 18, 2019 – Decided July 10, 2019
Before Judges Haas and Sumners.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0289-06.
Scott Adam Laterra argued the cause for appellant in A-1745-17 (Laterra & Hodge, LLC, attorneys; Scott Adam Laterra, of counsel and on the brief).
Howard A. Bachman argued the cause for respondent in A-1745-17 (Dwyer Bachman & Newman, LLC, attorneys; Howard A. Bachman, of counsel and on the brief). A. Manny Alicandro, appellant, argued the cause pro se in A-4985-17.
Sharon McQueen, respondent, argued the cause pro se in A-4985-17.
PER CURIAM
These two appeals have been calendared back to back for the purpose of
a single opinion. A-1745-17 arises from an order dated December 4, 2017,
where the trial judge, without a plenary hearing or oral argument, granted
defendant Sharon Alicandro n/k/a McQueen's motion for reconsideration,
increasing plaintiff A. Manny Alicandro's child support obligations for their two
children, and requiring plaintiff to pay eighty percent of their daughter's college
expenses. A-4985-17 arises from an order dated June 25, 2018, where the same
judge, again without a plenary hearing or oral argument, denied defendant's
motion to enforce litigant's rights to compel plaintiff to pay their daughter's
college tuition as moot because he paid it prior to the motion's return date, but
ordered plaintiff without explaining the basis for the amount of the award to
reimburse defendant $2000 in attorney's fees she incurred in filing the motion.
We reverse and remand both matters. In A-1745-17, the judge should
have conducted a plenary hearing to resolve disputed material facts regarding
child support and contribution of college tuition. In A-4985-17, the judge failed
A-1745-17T2 2 to set forth her findings of facts and legal conclusions regarding the amount of
plaintiff's attorney's fees defendant must pay. Moreover, beyond these
shortcomings, the judge should have conducted oral argument in both matters.
I.
Plaintiff and defendant were married on October 9, 1991. Two children
were born of the marriage, F.A. (Fiona), in August 1999, and D.A., in September
2000.1 On March 28, 2007, the parties were divorced by way of a Dual Judgment
of Divorce, which incorporated an Interspousal Agreement setting forth their
financial obligations with respect to their children. They later entered into a
consent order on October 17, 2016, through which plaintiff's alimony obligation
was terminated effective October 1, 2016. The order also stated, "[b]y
September 30, 2016, the parties shall exchange 2015 income tax returns, W-2's,
and their three (3) most recent paystubs, for the purpose of recalculating child
support," which would take effect October 1, 2016. The parties were unable to
facilitate this exchange and recalculation without court intervention, thus the
following litigation commenced.
1 We use initials and fictitious names to identify the parties to protect and preserve their confidentiality. R. 1:38-3(d)(12). A-1745-17T2 3 A-1745-17
In 2017, defendant filed a motion seeking an increase in plaintiff's child
support, compelling him to contribute his share of Fiona's college education, and
attorney's fees and costs. Plaintiff cross-moved to decrease child support by
requiring the imputation of: defendant's income due to the payoff of her
mortgage by her live-in boyfriend; the boyfriend's shared household expenses;
and his salary decrease. Plaintiff also wanted his share of Fiona's college tuition
to take into consideration scholarships, loans, and her earnings and savings . He
also sought an award of attorney's fees and sanctions against defendant's
counsel.
On August 29, without honoring the parties' request for oral argument, the
trial judge ordered, in pertinent part, the recalculation of child support and
allocation of Fiona's college tuition to twenty percent for plaintiff, ten percent
for defendant and the remaining seventy percent to be Fiona's responsibility.
The judge explained her decision in a statement of reasons attached to the order.
Defendant moved for reconsideration. Again, the judge did not honor the
parties' request for oral argument and entered an order on December 4,
modifying child support and drastically changing the college tuition contribution
A-1745-17T2 4 for Fiona to eighty percent for plaintiff, twenty percent for defendant, with no
contribution from Fiona. In her statement of reasons attached to the order, the
judge stated reconsideration was granted because her initial decision was
inadvertently based on the facts of a different case. This appeal followed.
A-4985-17
Plaintiff sought a stay of the December 4 order. The trial court and our
court denied the application. Plaintiff received a copy of our order on April 30,
2018.
On May 3, plaintiff allegedly wrote and mailed a check for $6,085.52 to
defendant, the balance of his share of Fiona's tuition. The next day, defendant
filed a post-judgment notice of motion to enforce litigant's rights, seeking to
compel plaintiff to pay his share of Fiona's college tuition and attorney's fees
and costs. The motion included defendant's supporting certification with
exhibits, and a certification of attorney's fees and costs. Defendant requested
oral argument if opposition was filed.
On May 8, plaintiff filed his opposition and cross-moved seeking to deny
defendant's motion as moot because he paid his share of Fiona's tuition. Plaintiff
raised concerns regarding the reasonableness and authenticity of attorney's fees,
the timing of defendant's motion, and her failure to resolve the issue before filing
A-1745-17T2 5 a motion with a "simple phone call or email." Plaintiff also requested oral
argument.
The judge did not allow oral argument, and ordered that the tuition issue
was moot because plaintiff made the payment to defendant. Nevertheless, the
judge ordered plaintiff to pay defendant $2000 in attorney's fees and costs –
$4385 was requested – without an explanation as to how she determined that
amount. This appeal followed.
II.
A.
In A-1745-17, plaintiff contends that the trial judge should have
conducted a plenary hearing and honored his request for oral argument. We
agree.
A plenary hearing is necessary when the parties' submissions show "a
genuine and substantial factual dispute." Hand v. Hand, 391 N.J. Super. 102,
105 (App. Div. 2007); see also Spangenberg v. Kolakowski, 442 N.J. Super.
529, 540-41 (App. Div. 2015). A trial judge may not resolve material factual
disputes, including credibility determinations, arising in the parties ' conflicting
affidavits and certifications; instead, when a genuine issue of fact is raised by
the parties' respective assertions, a plenary hearing must be held. Tretola v.
A-1745-17T2 6 Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006). "Importantly, '[t]he
credibility of the parties' contentions may wither, or may be fortified, by
exposure to cross-examination and through clarifying questions posed by the
court[]' in a plenary hearing." Spangenberg, 442 N.J. Super. at 541 (alterations
in original) (quoting Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div.
2006)). A plenary hearing is unnecessary when it "would adduce no further facts
or information," and "[a]ll of the relevant material was supplied to the motion
judge[.]" Llewelyn v. Shewchuk, 440 N.J. Super. 207, 217 (App. Div. 2015)
(quoting Fineberg v. Fineberg, 309 N.J. Super. 205, 218 (App. Div. 1998)).
Based upon our review of the record, there are material facts in dispute,
such as: the financial impact of defendant's cohabitation with her boyfriend;
whether plaintiff's reduction in income was voluntary; what was the current
income or assets of Fiona; whether Fiona was able to work; and whether Fiona
applied for financial aid pursuant to the parties' Interspousal Agreement.
Therefore, a plenary hearing should have been held to resolve these factual
disputes before the judge made her determinations for modifying child support
and determining the parties' contribution to Fiona's college tuition.
Even if we conclude that a plenary hearing was not necessary, a reversal
and remand is in order because the judge mistakenly applied her discretion in
A-1745-17T2 7 refusing to conduct oral argument as plaintiff requested. Requests for oral
argument in family actions are governed by Rule 1:6-2(d), except as otherwise
provided in Rule 5:5-4.
Rule 1:6-2(d) provides in pertinent part that "no motion shall be listed for
oral argument unless a party requests oral argument in the moving papers or in
timely-filed answering or reply papers, or unless the court directs." Rule 5:5-
4(a) provides 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."
"This provision has generally been interpreted to require oral argument
'when significant substantive issues are raised and argument is requested. '"
Palombi v. Palombi, 414 N.J. Super. 274, 285 (App. Div. 2010) (quoting
Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998)). "The denial
of oral argument when a motion has properly presented a substantive issue to
the court for decision 'deprives litigants of an opportunity to present their case
fully to a court.'" Ibid. The court, however, retains discretion to dispense with
oral argument on substantive issues where the record provides all that is
necessary to make a decision on the issue presented. Ibid.; see also Raspantini
A-1745-17T2 8 v. Arocho, 364 N.J. Super. 528, 531-32 (App. Div. 2003). However, requests
for argument may be denied where the court sets forth appropriate reasons on
the record. Rule 1:6-2.
Here, the issues of child support and college tuition were significant
substantive issues that warranted the judge to honor the requests for argument.
Furthermore, the judge did not identify the reasons as to why she denied the
argument requests for the reconsideration motion as well as the original motion.
B.
In A-4985-17, plaintiff contends that the trial judge erred in awarding
defendant attorney fees and costs by not conducting a plenary hearing and
honoring his request for oral argument. In addition, he contends the judge failed
to explain the reasons for the award.
Applying the principles noted above, we agree that oral argument should
have been allowed, but do not agree that a plenary hearing was necessary.
Defendant's demand for $4385 in attorney fees and costs was significant enough
to allow plaintiff to argue why the request was unreasonable given the timing of
his payment. A hearing was unnecessary because there were no material facts
in dispute based upon the parties' submissions.
A-1745-17T2 9 More importantly, our ability to consider the soundness of the fee award
has been hampered by the judge's failure to make findings of fact and
conclusions of law. Rule 1:7-4(a) requires that "[t]he 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[.]" When that is not
done, this court's review is impeded, and a remand is necessary. Elrom v. Elrom,
439 N.J. Super. 424, 443 (App. Div. 2015). Accordingly, following oral
argument, the judge shall explain her reasons for determining whether defendant
is entitled to attorney fees and costs.
Reversed and remanded. We do not retain jurisdiction.
A-1745-17T2 10