NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4894-15T2
NANCY GANJOIN,
Plaintiff-Respondent,
v.
BRUCE HALL,
Defendant-Appellant. __________________________________
Submitted July 18, 2017 – Decided November 17, 2017
Before Judges Ostrer and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1542-98.
Jeney, Jeney & O'Connor, LLC, attorneys for appellant (Robert J. Jeney, Jr., on the brief).
Respondent has not filed a brief.
PER CURIAM
In this post-judgment matrimonial matter, the trial court
compelled defendant and his ex-wife to share equally the cost of
a court-appointed forensic accountant. The court found that both
parties were to "some extent not cooperative with each other with regard to discovery," requiring the appointment. Defendant
appeals, contending the court should have assigned the entire cost
to his ex-wife, because only questions about her income and assets
prompted hiring the forensic accountant, and only her lack of
cooperation increased the accountant's fee. As we discern no
basis in the record for the court's conclusion that the parties
were equally responsible for the accountant's services, we vacate
the order and remand.
Nancy Ganjoin and Bruce Hall were divorced in 1998 with a
young child. They agreed to share their child's future college
education costs, in accordance with their "respective financial
abilities at that time." However, when their child was ready to
attend college, they could not agree. Ganjoin filed a motion to
compel Hall to contribute. He responded that he could not afford
to contribute, and cross-moved to reduce his child support and
questioned Ganjoin's current income and assets.
Supported by a case information statement, Hall stated he
earned a modest five-figure income as a truck driver, and had a
net worth of roughly three times that, consisting mainly of
retirement savings. According to her CIS, Ganjoin also had a
five-figure income, but twenty-percent higher than Hall's, which
she said consisted of income from various rental properties.
2 A-4894-15T2 However, her seven-figure net worth was almost ten times Hall's,
mainly due to her real estate holdings.
Hall questioned the accuracy of Ganjoin's submission. He
noted she had been a self-employed builder, but failed to report
in her most recent CIS income and assets from that business and
other sources that she had disclosed in previous CISs. He alleged
she significantly reduced the value of her real estate since her
prior filings. Also, he noted her personal budget far exceeded
her reported income.
After a case management conference, the court entered an
order appointing the accountant "to determine Plaintiff's existing
income from her various businesses." The court required the
parties to split the cost evenly "subject to readjustment by the
Court upon completion of his services . . . ."
Plaintiff failed to disclose certain requested documents.
The accountant contended, in a letter to the court, that
plaintiff's failure delayed completion of his work. Over a year
after the accountant's appointment, the court directed the
accountant to complete his report based on the information
submitted.
On the eve of a plenary hearing, the parties agreed defendant
would be responsible for fifteen percent of the costs and expenses
of their child's attendance at a named private university, and he
3 A-4894-15T2 would be relieved of his prior weekly child support obligation.
However, the court's order stated the parties would attempt to
resolve their differences regarding the accountant's "outstanding
invoice," or return to court. "All other issues [were] . . .
waived."
After the parties failed to reach agreement about the
accountant's fee, the court invited written submissions.
Defendant's counsel asserted that plaintiff should be responsible
not only for the outstanding invoice, but also the payments
defendant had already made. Counsel contended that the
accountant's report verified that plaintiff had, in various
respects, significantly understated her income in her initial
motion. He also cited the accountant's statement in a letter to
the court, that plaintiff's lack of cooperation had increased his
work's cost.
Plaintiff's counsel contended the accountant's work exceeded
the scope necessary. Counsel also challenged the expert's
findings; and criticized aspects of his billings. He argued that
the order did not permit defendant to claim plaintiff pay any part
of his fifty percent share.
Thereafter, the accountant submitted a final invoice, and
statement of payments by the parties. Plaintiff had paid $6920.50,
4 A-4894-15T2 defendant had paid $6831.75, and an adjusted $10,000 remained due,
after the accountant wrote off $8692.75.
Without hearing further argument or evidence, the court
entered its order requiring defendant to pay $5044, and plaintiff
$4956. When added to prior payments, the parties were responsible
for virtually identical amounts. This appeal followed.1
The family court has the authority to appoint an economic
expert if it concludes the expert will assist in disposing of an
economic issue. R. 5:3-3(c). When the court appoints an expert,
it has discretion to direct who pays the costs. R. 5:3-3(i). In
determining how to allocate such costs, a judge may take into
account the same factors outlined in Rule 5:3-5(c) governing awards
of attorney's fees. See Platt v. Platt, 384 N.J. Super. 418, 429
(App. Div. 2006) (allocating expert fees in divorce case). These
include, among other factors: the parties' financial circumstances
and ability to pay; their good faith; the reasonableness of their
positions; their cooperation with discovery; and the results
obtained. See R. 5:3-5(c).
We review such allocation decisions for an abuse of
discretion. Platt, supra, 384 N.J. Super. at 429. We accord
deference to the Family Court, see Cesare v. Cesare, 154 N.J. 394,
1 Plaintiff did not file a brief in opposition to defendant's appeal.
5 A-4894-15T2 411-12 (1998), yet we will set aside a discretionary decision that
lacked support in the record, ibid., or was "made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis," Milne v.
Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). "Naked
conclusions" do not fulfill the court's duty to find facts and set
forth its reasoning. See Curtis v. Finneran, 83 N.J. 563, 570
(1980); Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996);
R. 1:7-4(a).
Having carefully reviewed the record, we find no support for
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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 NO. A-4894-15T2
NANCY GANJOIN,
Plaintiff-Respondent,
v.
BRUCE HALL,
Defendant-Appellant. __________________________________
Submitted July 18, 2017 – Decided November 17, 2017
Before Judges Ostrer and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1542-98.
Jeney, Jeney & O'Connor, LLC, attorneys for appellant (Robert J. Jeney, Jr., on the brief).
Respondent has not filed a brief.
PER CURIAM
In this post-judgment matrimonial matter, the trial court
compelled defendant and his ex-wife to share equally the cost of
a court-appointed forensic accountant. The court found that both
parties were to "some extent not cooperative with each other with regard to discovery," requiring the appointment. Defendant
appeals, contending the court should have assigned the entire cost
to his ex-wife, because only questions about her income and assets
prompted hiring the forensic accountant, and only her lack of
cooperation increased the accountant's fee. As we discern no
basis in the record for the court's conclusion that the parties
were equally responsible for the accountant's services, we vacate
the order and remand.
Nancy Ganjoin and Bruce Hall were divorced in 1998 with a
young child. They agreed to share their child's future college
education costs, in accordance with their "respective financial
abilities at that time." However, when their child was ready to
attend college, they could not agree. Ganjoin filed a motion to
compel Hall to contribute. He responded that he could not afford
to contribute, and cross-moved to reduce his child support and
questioned Ganjoin's current income and assets.
Supported by a case information statement, Hall stated he
earned a modest five-figure income as a truck driver, and had a
net worth of roughly three times that, consisting mainly of
retirement savings. According to her CIS, Ganjoin also had a
five-figure income, but twenty-percent higher than Hall's, which
she said consisted of income from various rental properties.
2 A-4894-15T2 However, her seven-figure net worth was almost ten times Hall's,
mainly due to her real estate holdings.
Hall questioned the accuracy of Ganjoin's submission. He
noted she had been a self-employed builder, but failed to report
in her most recent CIS income and assets from that business and
other sources that she had disclosed in previous CISs. He alleged
she significantly reduced the value of her real estate since her
prior filings. Also, he noted her personal budget far exceeded
her reported income.
After a case management conference, the court entered an
order appointing the accountant "to determine Plaintiff's existing
income from her various businesses." The court required the
parties to split the cost evenly "subject to readjustment by the
Court upon completion of his services . . . ."
Plaintiff failed to disclose certain requested documents.
The accountant contended, in a letter to the court, that
plaintiff's failure delayed completion of his work. Over a year
after the accountant's appointment, the court directed the
accountant to complete his report based on the information
submitted.
On the eve of a plenary hearing, the parties agreed defendant
would be responsible for fifteen percent of the costs and expenses
of their child's attendance at a named private university, and he
3 A-4894-15T2 would be relieved of his prior weekly child support obligation.
However, the court's order stated the parties would attempt to
resolve their differences regarding the accountant's "outstanding
invoice," or return to court. "All other issues [were] . . .
waived."
After the parties failed to reach agreement about the
accountant's fee, the court invited written submissions.
Defendant's counsel asserted that plaintiff should be responsible
not only for the outstanding invoice, but also the payments
defendant had already made. Counsel contended that the
accountant's report verified that plaintiff had, in various
respects, significantly understated her income in her initial
motion. He also cited the accountant's statement in a letter to
the court, that plaintiff's lack of cooperation had increased his
work's cost.
Plaintiff's counsel contended the accountant's work exceeded
the scope necessary. Counsel also challenged the expert's
findings; and criticized aspects of his billings. He argued that
the order did not permit defendant to claim plaintiff pay any part
of his fifty percent share.
Thereafter, the accountant submitted a final invoice, and
statement of payments by the parties. Plaintiff had paid $6920.50,
4 A-4894-15T2 defendant had paid $6831.75, and an adjusted $10,000 remained due,
after the accountant wrote off $8692.75.
Without hearing further argument or evidence, the court
entered its order requiring defendant to pay $5044, and plaintiff
$4956. When added to prior payments, the parties were responsible
for virtually identical amounts. This appeal followed.1
The family court has the authority to appoint an economic
expert if it concludes the expert will assist in disposing of an
economic issue. R. 5:3-3(c). When the court appoints an expert,
it has discretion to direct who pays the costs. R. 5:3-3(i). In
determining how to allocate such costs, a judge may take into
account the same factors outlined in Rule 5:3-5(c) governing awards
of attorney's fees. See Platt v. Platt, 384 N.J. Super. 418, 429
(App. Div. 2006) (allocating expert fees in divorce case). These
include, among other factors: the parties' financial circumstances
and ability to pay; their good faith; the reasonableness of their
positions; their cooperation with discovery; and the results
obtained. See R. 5:3-5(c).
We review such allocation decisions for an abuse of
discretion. Platt, supra, 384 N.J. Super. at 429. We accord
deference to the Family Court, see Cesare v. Cesare, 154 N.J. 394,
1 Plaintiff did not file a brief in opposition to defendant's appeal.
5 A-4894-15T2 411-12 (1998), yet we will set aside a discretionary decision that
lacked support in the record, ibid., or was "made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis," Milne v.
Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). "Naked
conclusions" do not fulfill the court's duty to find facts and set
forth its reasoning. See Curtis v. Finneran, 83 N.J. 563, 570
(1980); Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996);
R. 1:7-4(a).
Having carefully reviewed the record, we find no support for
the court's conclusory finding that the parties were on an equal
footing regarding their cooperation with discovery. The court's
own order appointed the expert to review only plaintiff's finances,
evidently in response to defendant's assertion that plaintiff had
understated her income. The expert contended that plaintiff did
not cooperate with the production of documents, which inflated his
fees. There was no allegation that defendant was delinquent in
discovery, or that he had to produce documents to the accountant,
let alone that he was uncooperative with the accountant and
increased the extent of his fees. Notably, plaintiff raised no
question about the accuracy of defendant's financial disclosures.
On the other hand, the accountant found support for defendant's
6 A-4894-15T2 assertions that plaintiff did not present a full and accurate
picture of her finances. Thus, the record indicates defendant's
position was reasonable and the results favored him.
Of course, the accountant's contentions might be inaccurate,
and thus plaintiff may have acted in good faith. However, the
court could not reach those conclusions without holding a plenary
hearing. On the current record, nothing supported the court's
conclusion that defendant and plaintiff were equally
uncooperative.
Even if the court were ultimately to find that plaintiff did
not act in bad faith, the striking disparities in the parties'
assets and income were worthy of consideration. "Fees in family
actions are normally awarded to permit parties with unequal
financial positions to litigate (in good faith) on an equal
footing." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div.
2012) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div.
1992)).
Although we discern insufficient support for the court's
order, we reject defendant's suggestion that the court should have
reallocated the payments already made. Although the original
order said the division of the accountant's fees was subject to
readjustment after completion of his services, the plain language
of the settlement order left open only the "outstanding invoice."
7 A-4894-15T2 The parties waived all other issues, which we interpret to include
past payments.2
In sum, we vacate the court's order and remand for
reconsideration of its decision. We leave it to the court to
determine whether a plenary hearing is necessary.
Vacated and remanded. We do not retain jurisdiction.
2 We recognize that plaintiff argued before the trial court that the settlement order did not preserve the allocation issue at all, apparently contending that the only issue preserved was the amount of the invoice. However, the plain language is not so narrow, and no extrinsic evidence was presented to support plaintiff's interpretation.
8 A-4894-15T2