                        NOT FOR PUBLICATION WITHOUT THE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-1836-15T2

ABDULBASET TAHA,

        Plaintiff-Appellant,

v.

GHADA ABDULBASET TAHA,

        Defendant-Respondent.

________________________________________________________________

              Submitted January 10, 2017 – Decided May 19, 2017

              Before Judges Messano and Espinosa.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part, Bergen
              County, Docket No. FM-02-2346-08.

              Awad & Khoury, LLP, attorneys for appellant
              (Abed Awad, on the brief).

              Respondent Ghada Abdulbaset Taha has not filed
              a brief.

PER CURIAM

        Plaintiff appeals from an order that adjudicated him to be

in violation of litigant's rights, granted various forms of relief

to defendant, denied his cross-motion for a modification of his

support obligation and awarded counsel fees to defendant.                  For the
reasons that follow, we reverse that order and remand for further

proceedings.

                                 I.

     The parties were divorced in 2008 and later entered into a

property settlement agreement (PSA) that established plaintiff's

support obligations.   In June 2014, plaintiff filed a motion to

reduce the spousal support obligation established in the PSA due

to changed circumstances and for other relief.     Defendant did not

file any opposition to the motion.    Plaintiff's motion was denied.

     Plaintiff filed a motion for reconsideration, which was also

unopposed by defendant. In September 2014, the trial court granted

plaintiff's motion for reconsideration.    The trial judge's written

statement of reasons states, in part:

           [A]fter reviewing the filed certification in
           the matter, [the court] determines that
           plaintiff has demonstrated a change in
           circumstances such to warrant a downward
           modification of his support obligation.
           Plaintiff has provided copies of his yearly
           tax returns which show a consistent decline
           in plaintiff's income from the time of
           inception   of   support  to   the   present.
           Furthermore, since the time of inception of
           support, plaintiff has had another child born
           to his new wife . . . .

           [(Emphasis added).]

     The   September   2014   order   reduced   defendant's   alimony

obligation to $750 per month and his child support obligation for


                                  2                           A-1836-15T2
the last remaining unemancipated child to $614.90 per month.             The

order also granted plaintiff's request to emancipate the parties'

twenty-two-year-old   son,   who   worked   full-time   and   was     self-

sufficient.

     In January 2015, defendant filed a motion to: vacate the

September 2014; reinstate the earlier order denying plaintiff's

motion for modification of support; maintain spousal support at

$4,000 per month and for counsel fees.           The motion did          not

explicitly ask for the court to reverse the emancipation of the

parties' son or to reinstate the prior child support obligation.

In support of her motion, defendant asserted she had not been

served with the motion papers; that she was out of the country

when the motions were filed.       Plaintiff had represented to the

court that she had been served by regular and certified mail.

     The trial judge granted defendant's motion based upon her

representation that she had not had actual service of the motions

and entered an order that vacated the September 2014 order "in its

entirety." The trial judge's written statement of reasons includes

the following:

          [T]he Court believes that the plaintiff's
          application for a significant reduction of his
          support obligations should be determined on
          its merits and that the defendant should have
          an opportunity to respond to and/or oppose
          such requests, especially in light of the fact
          that when determining appropriate support

                                   3                                A-1836-15T2
          obligations, a Court must take into account
          the financial standings and circumstances of
          both parties. The plaintiff's application in
          support of his Motion for Reconsideration
          merely set forth dollar amounts that the
          plaintiff felt were appropriate amounts for
          his support obligations to be set at. Had the
          defendant had an opportunity to respond to his
          plaintiff's motion and set forth her own
          financial circumstances, the Court believes
          that the resulting support obligations would
          almost certainly have come out differently.

               For the reasons stated, the Court's Order
          of September 22, 2014 shall be, and is hereby
          vacated. Plaintiff is directed to file a new
          Motion   seeking   a   recalculation    and/or
          reduction of his support obligations based
          upon his previously alleged reduction in
          income or for any other reason applicable to
          the plaintiff's current circumstances.

          [(Emphasis added).]

     Despite the trial court's direction, plaintiff did not renew

his motion for modification of his support obligation until he

filed a cross-motion to the motion in aid of litigant's rights

filed by defendant in October 2015.    The relief sought in that

motion was for the court to compel the payment of outstanding

support and issue a two-missed-payment warrant.

     Oral argument on the motion and cross-motion was held before

a different judge than the one who had entered the prior three

orders in the case.   Unfortunately, the transcript reveals that

the new judge's understanding of the orders previously entered was

inaccurate.

                                4                          A-1836-15T2
     The excerpts we have quoted from the first judge's decisions

clearly show that the only reason the order reducing spousal

support was vacated was to afford defendant an opportunity to

respond to the merits of plaintiff's motion, a motion the judge

had previously determined had merit.      And, the first judge did not

foreclose   plaintiff   from   relying    on   the   materials   already

submitted or "any other reason applicable to the plaintiff's

current circumstances."

     The second judge interpreted the prior orders as a denial of

plaintiff's motion on the merits that precluded a motion to reduce

his obligation on res judicata grounds unless he was able to

establish there was a change in circumstances since the July 2014

order that originally denied his motion for modification.            This

was not the case.   Although plaintiff sought relief belatedly, his

motion was explicitly authorized by the first judge.

     In his appeal, plaintiff argues the trial judge erred in

failing to apply appropriate legal standards.          He contends the

judge erred in failing to modify his support obligations because

the first judge had already determined he had presented a prima

facie case of changed circumstances that warranted modification

and also argues it was error for the judge to deny his cross-

motion without a plenary hearing.        Plaintiff argues further that



                                  5                              A-1836-15T2
the trial court abused its discretion in awarding counsel fees to

defendant.

                                       II.

       We   need   not   address    plaintiff's   arguments   regarding   his

support obligation at length because it is clear from the record

that the decision to deny plaintiff a decision on the merits of

his motion was based upon an erroneous perception of the orders

previously entered in this case.             The order denying plaintiff's

cross-motion,1 reducing plaintiff's support arrears of $48,161.60

to judgment, and ordering him to sell property in Jordan is hereby

vacated.2

       Plaintiff    argues    the    prior    determination   that   he   had

presented a prima facie case of changed circumstances requires the

court to reduce his support obligation.           We reject this argument.

The prior order was vacated explicitly to provide defendant an

opportunity to respond; we reverse and remand so that the parties

may each have their day in court.

       The matter is remanded for a determination on the merits of

plaintiff's motion to modify his support obligation.           As the first

judge directed, plaintiff may rely on the information previously


1
    The order erroneously refers to "defendant's cross-motion."
2
  We note that defendant's notice of motion did not seek the sale
of the property in Jordan or the reduction of arrears to judgment.

                                        6                            A-1836-15T2
submitted and "any other reason applicable to the plaintiff's

current circumstances."    Defendant shall have the opportunity to

respond.   We leave to the trial judge the determination whether

discovery or a plenary hearing are warranted.

                                III.

     We next address plaintiff's challenge to the motion judge's

award of counsel fees to defendant.

     An    appellate   court   "will     disturb     a     trial    court's

determination on counsel fees only on the 'rarest occasion,' and

then only because of clear abuse of discretion."            Barr v. Barr,

418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v.

Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)).            A decision

arises from an abuse of discretion if it is "made without a

rational   explanation,   inexplicably    departed       from   established

policies, or rested on an impermissible basis." Ibid. (quoting

Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

     Counsel fees may be awarded "to any party accorded relief

following the filing of a motion in aid of litigant's rights, R.

1:10-3, or to any party in a divorce action, R. 5:3-5(c), subject

to the provisions of Rule 4:42-9." Ibid.; see N.J.S.A. 2A:34-23

(directing a court to consider the factors set forth in the court

rule on counsel fees).      The motion judge cited both rules as

providing authority for the award of $3,905 in counsel fees.             She

                                 7                                  A-1836-15T2
failed, however, to set forth reasons that justified an award

under either rule.

                                     A.

      Rule 1:10-3 grants the trial court discretion to "make an

allowance for counsel fees to be paid by any party to the action

to a party accorded relief under this rule."           "[A] proceeding to

enforce litigants' rights under Rule 1:10-3 'is essentially a

civil proceeding to coerce the defendant into compliance with the

court's order for the benefit of the private litigant.'" Pasqua

v.   Council,   186   N.J.   127,   140   (2006)   (citation   omitted).    A

threshold finding before relief can be granted under this rule is

that the failure to comply with a court order was willful. 3             See

Pressler and Verniero, Current N.J. Court Rules, comment 4.3 on

R. 1:10-3 (2017) ("Before punitive or coercive relief can be




3
  We note that the amount of alimony was fixed by the parties'
PSA, which they entered into approximately eighteen months after
their divorce. The record before us does not include any order
incorporating the PSA into the judgment of divorce. And none of
the orders entered in July, September or November 2014 established
$4,000 as the monthly alimony obligation.      They: (1) denied a
motion to reduce the settled upon amount; (2) reduced the settled
upon amount and (3) vacated the order that reduced alimony,
essentially restoring the term established in their PSA. In the
absence of an order that established the amount of alimony, there
is some doubt that relief was available under R. 1:10-3.       See
Haynoski v. Haynoski, 264 N.J. Super. 408, 414 (App. Div. 1993)
("The sine qua non for an action in aid of litigant's rights,
pursuant to R. 1:10-[3], is an order or judgment . . . .").

                                      8                             A-1836-15T2
afforded, the court must be satisfied that the party had the

capacity to comply with the order and was willfully contumacious.")

     That threshold finding was absent here.   To the contrary, the

motion judge cited plaintiff's inability to pay the counsel fee

she awarded as the reason for ordering that the counsel fee be

deducted from the proceeds of the sale of the Jordan property.

Absent a finding that plaintiff's failure to pay the alimony was

willfully contumacious, there is no basis for relief or a counsel

fee award under Rule 1:10-3.

                                B.

     For counsel fees to be properly awarded in family actions

under Rule 5:3-5(c), a court must consider nine enumerated factors:

          (1) the financial circumstances of the
          parties; (2) the ability of the parties to pay
          their own fees or to contribute to the fees
          of the other party; (3) the reasonableness and
          good faith of the positions advanced by the
          parties both during and prior to trial; (4)
          the extent of the fees incurred by both
          parties; (5) any fees previously awarded; (6)
          the amount of fees previously paid to counsel
          by each party; (7) the results obtained; (8)
          the degree to which fees were incurred to
          enforce   existing   orders   or   to   compel
          discovery; and (9) any other factor bearing
          on the fairness of an award.

          [See also Mani v. Mani, 183 N.J. 70, 94-95
          (2005) (explaining a court "must" consider
          these factors even though Rule 5:3-5(c) says
          a court "should" consider them); Barr, supra,
          418 N.J. Super. at 46 (same).]


                                 9                          A-1836-15T2
     While not every factor must be considered, Reese v. Weis, 430

N.J. Super. 552, 586 (App. Div. 2013), failure to provide analysis

on the record of these factors is a ground upon which a counsel

fee award may be disturbed. Accardi v. Accardi, 369 N.J. Super.

75, 90 (App. Div. 2004); see Gnall v. Gnall, 432 N.J. Super. 129,

165 (App. Div. 2013) ("A counsel fee award is left to the sound

discretion of the trial court, after consideration of the factors

identified in Rule 5:3-5(c)." (emphasis added)), rev'd on other

grounds, 222 N.J. 414, 423 (2015).

     Here, the only reason the Family Part put on the record for

granting counsel fees was that plaintiff was "in violation of

litigant's rights for failure to comply with an order."        This

purports to address only one of the factors listed in Rule 5:3-

5(c), i.e., "(8) the degree to which fees were incurred to enforce

existing orders."   The judge appeared to consider this factor

dispositive as she gave the following response to plaintiff's

protest that he was unable to pay:

          [T]his application had to be made because of
          non-compliance with an order. You're in
          violation of litigant's rights for failure to
          comply with an order, that has ramifications.
          But for that happening Ms. Taha wouldn't hire
          an attorney and pay an attorney to come into
          court to seek relief.

     As we have discussed, the record fails to show a willful

violation of an existing order by plaintiff.     Moreover, it is

                               10                          A-1836-15T2
clear the judge gave some credence to plaintiff's claim he was

unable to pay any fees because, in awarding defendant $3,905, she

stated, "The plaintiff is not in a position to pay that outright,

it will be satisfied from the sale of the proceeds [sic] from the

Jordan property."   Yet, there was no discussion of plaintiff's

financial circumstances or the other factors set forth in Rule

5:3-5(c).

     We are satisfied that the deficiencies in the legal and

factual bases relied upon by the motion judge warrant a reversal

of the order awarding counsel fees to defendant.

     Reversed and remanded.   We do not retain jurisdiction.




                               11                          A-1836-15T2
