Most practitioners that handle divorce, family law and complex custody cases know that it is axiomatic that to change, alter, or modify custody or parenting time, or to issue a parenting time sanction, the court must make findings of fact and conclusions of law.  In fact, all decisions made by the court from the bench in family cases that are not considered temporary trigger that requirement.   It is for that reason that practitioners must always be cognizant of the nature of the court’s determinations and whether a demand or reservation should be noted for the record requiring findings of fact.  It is a powerful tool to protect your client from error with regard to custody and parenting, alimony imputation, valuation and equitable distribution determinations.   Despite the obvious nature of the requirement, it occasionally  happens that a party is penalized in a post-judgment order and the record does not provide an adequate explanation.  Such a reminder can be seen in the recent New Jersey Appellate Division opinion of M.S. v. J.S, 20-2-3018 N.J. Super. (App.Div. 2017) per curiam.

In M.S. v. J.S., supra, the Defendant’s two-year therapeutic reunification process with his child through Skype was suspended without explanation, and it was ordered that all future parenting-time decisions were to be determined by drawing an adverse inference against the Defendant.  The Defendant was also ordered to pay counsel fees.  The only discernable reason for these orders was that the Defendant failed to produce discovery unrelated to parenting and custody and because the Defendant recorded one therapeutic session so that his therapist could help give him better guidance on how to interact with his daughters.  The Skype sessions were previously recorded under the direction of the court appointed expert.  There was no order, as pointed out by the Appellate Division, that prevented the sessions from being recorded.

The Defendant was incarcerated for two years for financial fraud, paid a fine and released on parole.  The Defendant lived continuously in England.  The Plaintiff lived in New Jersey with the parties’ two daughters.  The children were fifteen and seventeen years old.  At some point, given the distance over two shores and the Defendant’s incarceration, a previous restraining order was amended to include therapeutic reunification therapy between the Defendant and children.  The Appellate Division specifically noted that the conviction for white collar financial crimes had nothing to do with custody and parenting time.

In May 2015, the Superior Court entered an Order suspending the Defendant’s reunification therapy conducted over Skype, awarding counsel fees, and a monetary sanction of $10,000.  Additionally the Order required the Defendant to continue to provide information regarding his conviction for financial fraud nearly five years earlier.  Finally, and most importantly, the Order granted Plaintiff’s request, “that an adverse inference be inferred against the Defendant in determining future parenting time and future conditions of such parenting time. . .”  The entire Order, however, was entered without complete findings of fact and conclusions of law explaining the reasoning for suspending the therapeutic visitation or the awarding of counsel fees and monetary sanctions.  In reversing the entire Order, the Court stated, “The adverse inference in this case, imposed without explanation, preemptively sanctions defendant in his future interactions with his children.”

Rule 1:7-4, “Findings by the Court in Non-jury Trials and on Motions,” states in part:

(a) Required Findings. 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 Rule 3:29 The court shall thereupon enter or direct the entry of the appropriate judgment.

“Because of the frequency of the failure of trial judges to make findings, the Appellate Division Case Information Statement, Appendix VII, was amended to require information as to whether findings were made and if so whether oral or written.”  See Pressler & Verniero, Comment 1 to Rule 1:7-4.  

The requirement that the court make findings of fact to support its decisions is compounded in family cases, because every final decision is made by the judge, unless consented to by the parties. The requirement applies to nearly every decision made and ordered that is not considered interlocutory.  It can be said that post-judgment motions in the family part will likely trigger Rule 1:7-4, since the judge’s decision will likely be appealable as of right and is final, whereas pendente lite motions are generally interlocutory.   Various successful appellate attempts in family cases have been made due to the failure of the trial court to adequately explain its decision, on valuation of assets, division of lawsuit proceeds, deviations from child support guidelines and custody and parenting decisions.  See, e.g. Amato v. Amato, 180 N.J.Super. 210 (1981); Elrom v. Elrom, 439 N.J.Super. 424, 443 (App.Div.2015).

Ultimately, in M.S. v. J.S., the Appellate Division was concerned that not only were the therapeutic visits halted, purported discovery violations precipitated financial sanctions and future adverse inferences against parenting time, without any explanation as to the basis and vacated the entire eighteen paragraph Order.  To demonstrate the significance and power of Rule 1:7-4 as it applies to all aspects of family decisions and appeals:

Thus, the entire May 28, 2015 order is reversed. This effectively returns the parties to the visitation status quo, which implemented a therapeutic visitation program. Counsel shall promptly notify Dr. Dasher to reach out to the parties in order to begin anew in the manner, given the intervening two years, that he believes would be most productive after this long hiatus.

Every family law attorney will tell you that in their career they have experienced a final decision that they were not prepared for and that the basis or rationale was not provided.  Most often it is regarding a minor or insignificant issue.  Family part judges are often inundated and our courts are over-taxed, causing the court to make quick decisions at times.  In these situations it is incumbent to politely remind and request the court to provide a record of the basis for the decision.  It is also important to be reminded that where it does not occur and a decision is made without an adequate basis, a failure to make findings of fact is solid ground for successful appellate review.