Ducey v. Ducey

35 A.3d 703, 424 N.J. Super. 68, 2012 WL 300415, 2012 N.J. Super. LEXIS 12
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 2, 2012
StatusPublished
Cited by9 cases

This text of 35 A.3d 703 (Ducey v. Ducey) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ducey v. Ducey, 35 A.3d 703, 424 N.J. Super. 68, 2012 WL 300415, 2012 N.J. Super. LEXIS 12 (N.J. Ct. App. 2012).

Opinion

The opinion of the court was delivered by

LIHOTZ, J.A.D.

In this complex matrimonial matter, the parties’ cross-appeals challenge various provisions contained in an amended final judgment of divorce (JOD) that ordered the payment of support and the equitable distribution of assets. Without addressing the parties’ arguments on the merits of these issues, we are constrained to reverse, as we reject the procedure employed by the trial judge, who, after presiding over a fourteen-day trial, entered a final JOD advising the court’s “underlying opinion will be sent shortly.” Several months later, when the trial judge released the reasoning for her prior decision, the substantive provisions diverged significantly from those in the JOD and counsel was ordered to prepare an amended JOD. Although the trial judge included factual findings for many of the conclusions set forth in the amended JOD, no explanation was given for the wholesale alteration of the initially ordered provisions in the JOD. We reject any suggestion that the trial judge’s actions in this regard fall within her reasoned discretion, as discussed in Lombardi v. Masso, 207 N.J. 517, 25 A.3d 1080 (2011). Accordingly we reverse and remand for a new trial before a different Family Part judge.

The parties were married on June 19,1993, and have four minor children. Plaintiff Margaret Ducey, formerly a teacher, was a full-time homemaker. Defendant Stephen Ducey worked as an orthopedic surgeon, and owned a forty-nine percent interest in a medical practice. The parties separated in May 2006.

Plaintiff filed her complaint for divorce on June 12, 2006, which was met with defendant’s counterclaim for divorce. Plaintiff moved for pendente lite relief. The court ordered defendant to pay all expenses necessary to maintain the former marital home; to continue all health and dental insurance for plaintiff and the children at his expense; to satisfy plaintiffs monthly automobile expenses, including insurance and gasoline; and to provide plaintiff and the children with monthly unallocated support, subject to her obligation to account for the use of the funds.

[72]*72The parties’ two significant assets were the marital home and defendant’s interest in his medical partnership. The order included provisions to restrain the parties’ alienation of assets, delineate release of discovery, and appoint a joint forensic accounting expert to discern defendant’s cash flow and value his partnership interest in the medical practice. In addition, the court ordered a joint real estate appraiser be retained to provide an expert valuation of the marital home. Thereafter, motions were filed resulting in orders allowing the release of funds enabling the parties to retain and provide payment to individual forensic experts along with other relief in preparation for trial. Discovery ended, and trial commenced on September 8, 2008, eventually concluding on October 8, 2008.1

During trial, the three forensic experts testified regarding their opinion of the value of defendant’s partnership interest. The parties also testified and introduced numerous documents into evidence.

On May 13, 2009, seven months following trial, the Family Part judge issued a JOD. The transmittal letter accompanying the JOD simply stated:

Deal- Counsel:
Enclosed herewith is the Judgment of Divorce in the above referenced case.
The underlying opinion will be sent shortly. Upon receipt of same, parties are to
prepare a more detailed Amended Judgment of Divorce.

The JOD granted each party’s request for divorce and entered provisions regarding custody, parenting time, limited duration alimony, child support, and equitable distribution of assets. Notably, the JOD appointed a parenting coordinator to assist the parties in parenting the children, provided for the children’s insurance, allocated the payment of uninsured medical expenses, addressed payment of the children’s future college costs, and required defendant to maintain life insurance. Detailed terms and conditions for child support and alimony were included. Regard[73]*73ing the distribution of the parties’ assets, the JOD fixed the value of defendant’s medical practice and ordered payment to plaintiff of fifty percent of that interest; fixed the value and distribution of the former marital home; ordered defendant to pay the court appointed expert; and awarded plaintiff counsel and expert fees. However, the court reserved the amount of the attorney fee award pending counsel’s submission of an affidavit of services rendered.

The record before us does not reveal any motion practice initiated following the filing of the JOD. We note plaintiff corresponded with the court, suggesting she considered the judgment interlocutory and invited the court to reconsider the value assigned to defendant’s medical practice. Defendant opposed the request in reply correspondence.2

Three months later, on August 14, 2009, the trial judge rendered a thirty-two page written opinion, in which she addressed each of the issues previously finalized in the JOD. Unfortunately, the opinion did not support the conclusions reached in the JOD and most of the provisions of the two documents did not match. For example, the weekly child support award was increased by 33.33%, the amount of alimony was increased by 35% and the term lengthened by three years, and the value of defendant’s medical practice, from which plaintiff was awarded a 50% interest, was increased more than 142%. The opinion made no mention of the May 13, 2009 JOD or why the court’s factual findings and conclusions differed from the initial judgment. Counsel was ordered to prepare an amended JOD, which was filed on September 29, 2009.

The parties have no disagreement with the court’s conclusions to dissolve the marriage and provide for the custody of the children, and we note these terms are identical in the JOD and the [74]*74amended JOD. Rather, the parties’ respective arguments on appeal attack several financial provisions of the amended JOD, primarily arguing the trial court abused its discretion because its findings and conclusions were not sufficiently substantiated by the facts in the record. Additionally, defendant maintains the trial court failed to comply with its factfinding obligation by entering the JOD unaccompanied by factual findings and later rendering an opinion which contradicted the JOD without explanation.

We focus on this last issue and conclude the trial court deviated from its factfinding obligation, as set forth in Rule 1:7-4(a), by issuing an opinion three months following the entry of the JOD. More important, we vacate the financial provisions in the amended JOD because the findings and conclusions bear minimal resemblance to the conclusions of the JOD, without an explanation for the divergence.

In matrimonial matters, judges should enter final judgments accompanied by the underlying factual findings and reasoning. We have repeatedly reminded trial courts of their factfinding obligation. Factfinding “is fundamental to the fairness of the proceedings and serves as a necessary predicate to meaningful review[.]” R.M. v. Supreme Court of N.J., 190 N.J. 1, 12, 918 A.2d 7 (2007).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
35 A.3d 703, 424 N.J. Super. 68, 2012 WL 300415, 2012 N.J. Super. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ducey-v-ducey-njsuperctappdiv-2012.