                        NOT FOR PUBLICATION WITHOUT THE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-1495-16T4

VICTORIA TOLSTUNOV,

        Plaintiff-Respondent,

v.

ROSTISLAV VILSHTEYN,

     Defendant-Appellant.
__________________________________

              Argued April 9, 2018 – Decided July 30, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Morris County,
              Docket No. FM-14-1000-15.

              Lawrence H.      Kleiner    argued    the   cause    for
              appellant.

              Ari H. Gourvitz argued the cause for
              respondent   (Gourvitz   & Gourvitz, LLC,
              attorneys; Ari H. Gourvitz and Elliot H.
              Gourvitz, on the brief).

PER CURIAM

        In   this   matrimonial      appeal,    defendant-husband        Rostislav

Vilshteyn appeals from aspects of three overlapping trial court

orders, including a final judgment of divorce (FJD).                   On October
24, 2016, the court entered an omnibus order that dismissed

defendant's pleadings with prejudice for discovery violations;

granted plaintiff partial summary judgment, mirroring provisions

in a Partial Marital Settlement Agreement (PMSA), which, defendant

argues,   the   parties   intended     to   be    temporary;       allocated    the

parties' marital debt; and awarded attorney's fees to plaintiff.

A second order denied defendant's cross-motion to reinstate his

answer and counterclaim.        The court also entered a FJD, which

incorporated the PMSA, and the omnibus order.               Defendant contends

the court erred in (1) failing to provide a statement of reasons

for its decision; (2) denying his motion to reinstate his pleadings

and instead dismissing them with prejudice; (3) granting partial

summary   judgment;     (4)   enforcing     the    PMSA;    and    (5)   awarding

plaintiff attorney's fees.         We reverse and remand for further

proceedings.

                                       I.

      Plaintiff-wife Victoria Tolstunov filed her divorce complaint

in   February   2015,   after   less    than      seven    years   of    marriage,

including a period of separation.            The parties have one child.

Plaintiff alleged adultery as the sole basis for the divorce.                   She

cited a January 2015 text message from defendant acknowledging he

had a girlfriend.



                                       2                                   A-1495-16T4
     During the marriage, defendant was convicted of Medicaid

fraud and incarcerated between September 2013 and June 2014, and

again between September 2015 and August 2016.              See State v.

Vilshteyn, No. A-4202-11 (App. Div. Aug. 20, 2013) (affirming

conviction to second-degree health care claims fraud, N.J.S.A.

2C:21-4.2 and -4.3(c), and third-degree Medicaid fraud, N.J.S.A.

30:4D-17(b)).   Defendant was sentenced to a five-year prison term

and ordered to pay $200,000 in restitution, fines, penalties and

assessments.    Ibid.1      Defendant    was   returned   to   custody    in

September 2015 after allegedly violating the terms of the Intensive

Supervision Program (ISP).    He was released again to ISP in August

2016, after he was exonerated of the violation.

     Only some aspects of the extensive procedural history are

relevant to the issues on appeal.       The court entered default after

defendant failed to answer the complaint.            Rather than enter

default judgment as plaintiff thereafter proposed pursuant to Rule

5:5-10, the court allowed, and then granted, defendant's motion

to vacate default.       In August 2015, defendant filed an answer

denying plaintiff's factual allegations related to adultery, but

did not assert a defense to the cause of action.               He filed a




1
 Defendant contended the remaining restitution was $83,000 in the
fall of 2016.

                                   3                               A-1495-16T4
counterclaim seeking divorce based on irreconcilable differences

causing a breakdown of the marriage for more than six months.

     In its October 2015 order, the court compelled the parties

to exchange discovery, and defendant to pay plaintiff's reasonable

attorney's fees associated with the motion, which it later set at

$4583.19.    A case management order a month later acknowledged that

defendant was incarcerated, but ordered him to pay the full cost

of a custody expert, and to file a completed case information

statement (CIS) in a week.

     In February 2016, on plaintiff's motion and pursuant to Rule

4:23-5(a)(1)    and   Rule   1:10-1,   the   court   again   dismissed     and

suppressed   defendant's     pleading.       In   response   to   plaintiff's

motion, defendant contended he had complied with discovery, and

provided copies of his newly minted responses to plaintiff's

interrogatories, custody interrogatories, request for admissions,

and notice to produce.       The court credited plaintiff's contention

that defendant's responses were incomplete, but the court did not

specify the deficiencies.        The court noted that defendant was

incarcerated, but found no "viable explanation" for his failure

to comply.    The court awarded plaintiff fees of $2585.            The court

noted that "the parties may have enjoyed a luxurious lifestyle,

[but] it was obviously based on criminal proceeds."



                                       4                              A-1495-16T4
      In June 2016, invoking Rule 4:23-2 and Rule 4:23-5(a)(2),

plaintiff   sought   dismissal   and   suppression   with   prejudice,

contending defendant: failed to comply with the court's prior

order to pay fees; failed to provide proof that he filed an amended

tax return as required (although he provided a copy of the return);

and   failed    to   answer   discovery,   without   specifying     the

deficiencies.    Plaintiff also sought partial summary judgment on

issues of child support, custody, alimony, marital debt, and

medical insurance.    She sought $322 per week in child support and

allocation of the cost of the child's school and extracurricular

activities; sole legal and physical custody of the child; mutual

waiver of alimony; and allocation of the marital debt.         As for

medical insurance, plaintiff requested that defendant obtain his

own; she would provide it for the child.         She also sought to

prohibit defendant from claiming the child as a dependent for tax

purposes.

      However, plaintiff postponed consideration of the motion, as

the parties were engaged in discussions that ultimately led to the

defendant and plaintiff signing a PMSA in early July, and a second

one later that month.2        The first PMSA reflected defendant's



2
  Defendant's signature on the first was dated July 6, 2016, and
his second on July 28, 2016.     Plaintiff's signatures were not
dated.

                                   5                           A-1495-16T4
review, including his initials on each page, and next to individual

provisions.     The first PMSA included a mutual waiver of alimony.

It also granted plaintiff sole legal and physical custody of the

child,   denied     defendant   parenting     time,    and    barred   him    from

contacting the child until further order or agreement of the

parties.    A separate provision acknowledged the parties' rights

to seek post-judgment relief.

     The parties mutually waived their rights to take further

discovery     and     defendant       acknowledged     that     he     had    "not

substantially       answered    the    discovery      propounded,"      and    his

pleadings were "dismissed."           Plaintiff stated she was "completely

satisfied with the financial disclosures from her Husband."                    The

PMSA stated that each party was to be responsible for their own

counsel fees "associated with the dissolution of the marriage,

except as otherwise stated in paragraph 6.2 above" — although

there is no paragraph 6.2 — but granted a right to fees for

enforcement of the PMSA.

     The first agreement included defendant's handwritten cross-

outs of numerous provisions, including those: setting his child

support obligation at $250 a week; imputing $100,000 in annual

income to him and $49,000 to plaintiff "for the sole purpose of

[the child support] . . . calculation"; obliging defendant to pay

sixty-four percent of the cost of the child's Montessori tuition

                                         6                               A-1495-16T4
and extracurricular activities, and stating he would be entitled

to receive information about the activities and school when he was

released from prison; and suspending enforcement while he was

incarcerated.   Also crossed out were provisions obliging defendant

to obtain $300,000 in life insurance; to pay sixty-four percent

of the child's unreimbursed medical costs; identifying marital

debt and allocating it equally; and affirming prior fee awards.

The various cross-outs were in addition to changes reflected in

the typescript, typical of a "redline" version. The word "Partial"

was handwritten on the agreement's title page.

       The second agreement mirrored the first, but it left intact,

without further revision, provisions that were previously crossed-

out.    The second version restored the provision pertaining to

child support and imputation of income, except the part stating

that enforcement would await defendant's release remained crossed

out. Instead, it was annotated, "Judge to decide." Also, restored

were the provisions on life insurance and the costs of unreimbursed

medical expenses, Montessori and extracurricular activities.     The

provision on marital debt remained crossed out, but it now included

the annotation, "Judge to decide."

       Two months after defendant's release from incarceration, he

sought to reinstate his pleadings.     He blamed his incarceration

for his failure to pay ordered fees and his incomplete production

                                  7                         A-1495-16T4
of documents.    He said that his previous responses were truthful,

although he incompletely produced documents, because he had no

access to them while incarcerated.         He stated that he provided

additional   financial   and    tax   information   after   his   release.

Defendant did not object to the dissolution of his marriage, but

he contested plaintiff's allegation of adultery.

     Defendant    objected     to   plaintiff   having   sole   legal   and

physical custody of the child, asserting — contrary to plaintiff's

allegations — he was an attentive and responsible father before

his incarceration, and his lack of contact was plaintiff's fault.

Defendant challenged the PMSA provision on custody, and other

"financial agreements":

          I do not dispute that while incarcerated on
          the wrongful I.S.P. violation I also agreed
          to give the Plaintiff sole legal and physical
          custody, as well as agreeing to a suspension
          of my visitation pending my incarceration.
          However that agreement, as well as various
          financial agreements, was solely conditioned
          upon my release, which has since occurred on
          August 26, 2016. . . .     Therefore, as I no
          longer agree to the terms of the partial
          Marital    Settlement    Agreement,    I    am
          respectfully   requesting   that   the   Court
          litigate this matter on the merits, finding
          that the Settlement Agreement was nothing more
          than an interim agreement pending my release
          from jail.

     Also in October 2016, plaintiff's attorney asked the court

to grant her motion for partial summary judgment, in accordance


                                      8                            A-1495-16T4
with the PMSA's terms.           Counsel argued that defendant did not

comply with discovery as he still had not filed an updated CIS,

and did not amend his answers to interrogatories or notice to

produce, and instead "dumped" a volume of documents on plaintiff's

counsel   after    he    filed    his   cross-motion.          In   an   opposing

certification, plaintiff itemized the parties' marital debt, and

requested defendant be ordered to pay sixty-four percent of it.

She also alleged that defendant had no relationship with the child

before his incarceration.           She asked the court to enforce the

custody agreement in the PMSA.          Plaintiff stated "I am not denying

that [d]efendant someday will have the ability to see his son, but

I do not believe that there is anything wrong in asking him to be

drug   tested,    and    go   through   psychiatric      and   substance     abuse

evaluation(s) . . . ."

       At oral argument, plaintiff's counsel argued that the court

should dismiss defendant's pleadings with prejudice for failure

to answer discovery.          He asserted that defendant's failures were

"willful" and "deliberate."         Further, counsel argued that the PMSA

was not a pendente lite agreement because it was drafted in

anticipation of defendant's release from jail.             Counsel added that

defendant should be responsible for sixty-four percent of the

marital   debt,    and    plaintiff's       attorney's   fees.      Plaintiff's

counsel also requested that the court grant the parties' divorce

                                        9                                  A-1495-16T4
and   incorporate     the   PMSA,    based    on    plaintiff's        June    2016

certification.

      Defendant's     counsel     argued     that        defendant's     wrongful

incarceration played a central role in the prolonged history of

the divorce proceeding, and defendant should not be responsible

for all of plaintiff's attorney's fees.            Counsel argued that while

defendant signed the PMSA, it was only meant to be a partial

agreement   that    controlled      while    he    was    in   jail.      Counsel

acknowledged   that    this     stipulation       was    not   written    in   the

agreement, but argued that defendant only agreed to plaintiff

having custody of the child while he was in jail because he did

not want the child visiting him there.3             Counsel urged the court

to consider the provision in the PMSA, which states the parties

are free to file post-judgment motions, as evidence that the

agreement was modifiable and not final.

      Defense counsel further argued that defendant complied with

discovery, providing financial documentation for the previous

three years – commenting that plaintiff's request for documents

from the past five years was "overly burdensome" – and asserted


3
  Defendant stated in his certification, "While incarcerated from
2013 to 2014, the Plaintiff . . . brought my son only one time to
see me after multiple repeated requests to see him." But, during
his second incarceration, he acquiesced to his counsel's request
that he suspend visitation when he was held in the Passaic County
jail, to avoid traumatizing or causing the child stress.

                                     10                                   A-1495-16T4
that the documents were not "dumped" on plaintiff's counsel, but

rather were appropriately annotated and organized.      Counsel also

represented that defendant filed an amended 2014 tax return.      She

offered defendant's testimony on this fact, but the court declined

to hear it.4   On the issue of marital debt, counsel argued that

the allocation agreed upon in the PMSA with respect to the child's

expenses should not automatically apply.

     The court found no support in the PMSA's text for defendant's

argument that the agreement was intended only to apply temporarily.

Recognition of defendant's right to seek post-judgment relief did

not render the custody provision temporary.      "Where there's an

agreement between parties getting divorced . . . the [c]ourt's

required to enforce the terms of the agreement that are fair and

that are expressed.   I can't rewrite the agreement."   However, the

court made no explicit findings regarding the fairness of the

agreement, or that the parties entered into it voluntarily and

knowingly.

     The court held that discovery was irrelevant, except for

those issues left open by the PMSA.   The court awarded attorney's

fees, stating only: "I'm satisfied that plaintiff is entitled to



4
  Defendant's 2014 tax return, submitted to this court in
plaintiff's appendix, is on an "Amended U.S. Individual Income Tax
Return" form.

                                11                           A-1495-16T4
an award of counsel fees.         This case has gone on too long.        This

— I mean she's had to pay over $11,000 in accumulating fees because

of debt."    The court noted that the PMSA allocated sixty-four

percent of certain expenses to defendant, and thirty-six percent

to plaintiff, and the ratio of imputed income was slightly higher.

     As for the cause of action, the court stated, "I am going to

grant divorce to plaintiff. . . .          I'm going to grant it based

upon her certification.     It's clear she's entitled to a divorce."

The court added, "And that will give defendant an opportunity to

move forward with his application to change the custody arrangement

that he agreed on in July."         The court reserved judgment on the

distribution of marital debt.

     Two days later, the court issued the orders referenced above

without a further statement of reasons.          The FJD, as submitted by

plaintiff's counsel, and which the court entered, stated that

plaintiff had proved a cause of action for divorce "as alleged in

the Complaint." The FJD stated that the court reviewed plaintiff's

complaint and her sworn certification, without any reference to

defendant's certifications.          The court incorporated the PMSA,

again   without   any   finding    that   the   parties   entered   into    it

voluntarily and knowingly, and expressly declining to rule on its

fairness and reasonableness.



                                     12                              A-1495-16T4
       Notwithstanding the court's statement that discovery was

irrelevant, the court denied defendant's motion for reinstatement

and dismissed and suppressed his pleading with prejudice pursuant

to Rule 4:23-2, for violating the court's October 20, 2015 order,

and Rule 4:23-5(a)(2), for discovery violations. The court granted

plaintiff      partial   summary       judgment    on     the    points      originally

requested in her June 2016 motion, but adjusted the relief in

accordance with the terms in the PMSA.                  In addition, the court

granted partial summary judgment as to the marital debt, assigning

defendant sixty-four percent of the costs, totaling $18,721.31.

The court also ordered defendant to pay plaintiff's attorney's

fees, totaling $9,035, incurred in connection with the partial

summary judgment motion.

       This appeal followed.

                                         II.

                                         A.

       We begin with our standard of review.                    Generally, we defer

to   the   Family   Part's      fact    findings    that        are   rooted    in   its

familiarity with the case, its opportunity to make credibility

judgments based on live testimony, and its expertise in family

matters.      Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).                   However,

we review legal issues de novo, Slutsky v. Slutsky, 451 N.J. Super.

332,    345    (App.     Div.   2017),        including     issues      of     contract

                                         13                                     A-1495-16T4
interpretation of a matrimonial settlement agreement, see Quinn

v. Quinn, 225 N.J. 34, 45 (2016) (stating that contract principles

apply to the interpretation of matrimonial settlement agreements);

Kieffer v. Best Buy, Inc., 205 N.J. 213, 222-23 (2011) (stating

that the interpretation of a contract is an issue of law that an

appellate court reviews de novo).         We also owe no deference if the

trial court overlooks governing legal standards, Gotlib v. Gotlib,

399 N.J. Super. 295, 309 (App. Div. 2008), or enters an order that

lacks evidential support, Mackinnon v. Mackinnon, 191 N.J. 240,

254 (2007).

     Furthermore, the trial court's failure to articulate adequate

findings of fact and conclusions of law pursuant to Rule 1:7-4

generally necessitates a reversal and remand.             See Strahan v.

Strahan, 402 N.J. Super. 298, (App. Div. 2008) (reversing and

remanding for failure to make adequate findings of fact and

conclusions   of   law   regarding    child    support   calculation   and

imputation of income); Heinl v. Heinl, 287 N.J. Super. 337, 347

(App. Div. 1996) ("The absence of adequate findings, as here,

necessitates a reversal to allow the trial judge to reconsider the

alimony decision."). Applying these standards, and for the reasons

set forth below, we are constrained to reverse and remand, as the

trial court's orders suffer from procedural and legal error, and



                                     14                           A-1495-16T4
are   generally     unsupported     by     adequate     findings        of    fact    and

conclusions of law.

                                          B.

      We turn first to the PMSA.           We are guided by well-established

principles.         "Settlement     of    disputes,        including     matrimonial

disputes, is encouraged and highly valued in our system."                        Quinn,

225 N.J. at 44.        We generally apply basic contract principles in

interpreting      matrimonial      settlement       agreements.          Id.    at     45.

However, those principles are tempered by principles of equity.

Id. at 45-46.     As the Court observed, "To be sure, 'the law grants

particular leniency to agreements made in the domestic arena and

vests     'judges      greater     discretion        when        interpreting         such

agreements.'"       Ibid. (quoting Pacifico v. Pacifico, 190 N.J. 258,

266 (2007)).      "A narrow exception to the general rule of enforcing

settlements as the parties intended is the need to reform a

settlement     agreement     due     to        'unconscionability,           fraud,    or

overreaching in the negotiations of the settlement.'"                         Id. at 47

(quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).

      A   court   is   obliged     to    ascertain     that       the   parties       have

voluntarily and knowingly entered into a matrimonial settlement

agreement,     because     such     a     finding     is     a     precondition         of

enforceability.        See id. at 39 (stating that PSA providing for

alimony termination upon cohabitation is "enforceable when the

                                          15                                    A-1495-16T4
parties enter such agreements knowingly and voluntarily"); id. at

55   (stating      agreement     is   enforceable    absent    "evidence       of

overreaching, fraud or coercion").

     The court is generally obliged to take testimony, in order

to reach such findings.         See, e.g., Gere v. Louis, 209 N.J. 486,

501-03    (2012)    (noting     court's    finding   based    on   testimony);

Ehrenworth v. Ehrenworth, 187 N.J. Super. 342, 343-46 (App. Div.

1982)    (setting    forth     extensive   voir   dire   of   parties    before

accepting marital settlement agreement); see also 1 Gary N. Skoloff

& Laurence J. Cutler, New Jersey Family Law Practice, § 1.9A(2)

at 1:288 (15th ed. 2012) ("In cases in which the agreement is to

be incorporated, the court will take testimony to ascertain whether

the parties have knowingly, willingly and voluntarily entered into

the agreement . . . .").        A boilerplate recital in the PMSA itself

that the parties have executed the agreement voluntarily is of no

consequence, particularly when, as here, the statement is not

sworn or certified.      See R. 1:6-6.

     Here, the court incorporated the PMSA into the FJD without

taking any testimony or making any essential findings regarding

whether the parties entered into it knowingly and voluntarily.                 On

that basis alone, incorporation of the PMSA was error.

     However, in this case, the court was obliged to do more than

ascertain whether the parties entered the agreement voluntarily

                                      16                                A-1495-16T4
and knowingly.    Defendant focused his challenge to the PMSA on the

provision in which he not only forfeited any claim to legal and

residential custody of his child, but agreed to avoid all contact

with his child.     Defendant contended he believed the provision

applied only while he was incarcerated.          We agree that there is

no   textual   support   for   his    claim.   Indeed,    the   text    itself

undermines the claim, by explicitly referencing his release from

incarceration in other provisions, but not as to custody and

parenting time.

      Nonetheless, the court was required to review the custody and

parenting time provision because it affected not only defendant's

rights; it affected the welfare of the child.            "In custody cases,

it is well settled that the court's primary consideration is the

best interests of the children."           Hand v. Hand, 391 N.J. Super.

102, 105 (App. Div. 2007); see also Colca v. Anson, 413 N.J. Super.

405, 414 (App. Div. 2010).           A "child cannot be prejudiced by an

agreement between parents."           Kopak v. Polzer, 4 N.J. 327, 333

(1950); see also Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div.

2006) (stating that parties may not "bargain away a child's right

to support because the right to support belongs to the child, not

the parent . . . ."); Gulick v. Gulick, 113 N.J. Super. 366, 371

(Ch. Div. 1971) (stating that "the conscience of equity will not



                                      17                               A-1495-16T4
permit present needs of children to be limited by the agreement

of the [parties]").

     A court shall not enforce parents' custody arrangement if it

is contrary to the child's best interests.               N.J.S.A. 9:2-4(d)

("The court shall order any custody arrangement which is agreed

to by both parents unless it is contrary to the best interests of

the child.").     A child is entitled to maintain and develop a

relationship with each parent.       See Cooper v. Cooper, 99 N.J. 42,

50 (1984) (noting "mutual right of the child and the noncustodial

parent to develop and maintain their familial relationship");

N.J.S.A. 9:2-4 (finding "it is in the public policy of this State

to assure minor children of frequent and continuing contact with

both parents").   "The agreement between the parties has no binding

effect insofar as visitation is concerned.        The question is always

what is in the best interests of the children no matter what the

parties may have agreed to." Hallberg v. Hallberg, 113 N.J. Super.

205, 209 (App. Div. 1971).

     The parties' respective certifications created a factual

dispute as to defendant's relationship with his child; defendant's

capacity   to   serve   as   a   responsible   parent;    and   plaintiff's




                                    18                              A-1495-16T4
cooperation   in   nurturing   the    father-child    relationship.5       In

ascertaining the child's best interests, the court may not resolve

material factual disputes without a plenary hearing.             See K.A.F.

v. D.L.M., 437 N.J. Super. 123, 137 (App. Div. 2014).         "Even where

a party waives a plenary hearing, 'the matter of visitation is so

important, especially during the formative years of a child, that

if a plenary hearing will better enable a court to fashion a plan

of   visitation    more   commensurate     with   a    child's     welfare,

nonetheless it should require it.'"         Id. at 138 (quoting Wagner

v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979)).            The trial

court's failure to conduct a plenary hearing on whether the custody

agreement serves the child's best interests, even if defendant

entered it knowingly and voluntarily, requires reversal.            See id.

at 140.

     In sum, it was error for the court to incorporate the PMSA

wholesale into the FJD.    As a result, we are constrained to vacate

the FJD.   Moreover, inasmuch as the PMSA was apparently the basis




5
   We   acknowledge   plaintiff's  allegation,   which   defendant
contested, that defendant suffered from a substance abuse problem.
However, even if that were so, the record does not support a
conclusion that it was in the best interests of the child to have
zero contact with defendant. Options such as supervised parenting
time, or parenting time conditioned upon appropriate drug testing,
might enable the child to maintain a relationship with defendant,
and should be explored on remand.

                                     19                             A-1495-16T4
of the court's grant of partial summary judgment, that order must

be reversed as well.

                                     C.

     We   are   also   constrained    to    reverse    the   trial    court's

discovery-related orders.     As noted, as a discovery sanction, the

court granted plaintiff's motion to dismiss and suppress with

prejudice    defendant's   counterclaim       and     answer,   and    denied

defendant's motion to reinstate.

     We review the trial court's discovery ruling for an abuse of

discretion and shall not disturb it absent an injustice.                   See

Bender v. Adelson, 187 N.J. 411, 428 (2006) (reviewing for an

abuse of discretion a "trial court's decision to bar defendants'

requested amendments to their interrogatory answers and deny a

further discovery extension"); Abtrax Pharms., Inc. v. Elkins-

Sinn, Inc., 139 N.J. 499, 517 (1995) (stating appellate courts

shall review the dismissal of a complaint with prejudice "for

discovery misconduct" under an abuse of discretion standard and

shall not "interfere unless an injustice appears to have been

done").     A court abuses its discretion when it makes a decision

"without a rational explanation."         Flagg v. Essex Cty. Prosecutor,

171 N.J. 561, 571 (2002).

     Courts should order dismissal "sparingly" because it is "the

ultimate sanction."     Id. at 514.        Even if there is a discovery

                                     20                               A-1495-16T4
violation, in deciding whether to "suspend the imposition of

sanctions," a court should consider whether there was "absence of

a design to mislead"; "absence of the element of surprise if the

evidence is admitted"; and "absence of prejudice from admission

of the evidence."       Wymbs v. Twp. of Wayne, 163 N.J. 523, 544

(2000).   Furthermore, "[i]f there is a bona fide dispute over the

responsiveness of the answers, then it is error to dismiss the

complaint."   Adedoyin v. Arc of Morris Cnty., 325 N.J. Super. 173,

181 (App. Div. 1999).

      Here, the court provided no explanation for its discovery-

related   decisions.     It   was   obliged     to   review   the   competing

certifications,    to   ascertain   whether:      the   specific    discovery

requests were reasonable and not unduly burdensome; defendant's

incarceration provided good cause for any shortcomings in his

responses; defendant ultimately complied fully or reasonably with

the discovery requests; and plaintiff abided by the procedural

requirements of Rule 4:23-5.        To the extent defendant failed to

comply with discovery – the court was required to determine whether

the violations were significant enough to justify the extreme

sanction of suppression and dismissal.          See id. at 175 (reversing

and   remanding   dismissal   under      Rule   4:23-5(a)(1)   for    further

factfinding, as trial court did not explain why it dismissed

instead of compelling more specific answers).

                                    21                                A-1495-16T4
     Furthermore, the court stated in its oral decision that

discovery was "irrelevant."     If so, then the basis for dismissing

and suppressing defendant's pleadings is all the more perplexing.

Lastly, if the PMSA is enforceable, then according to its plain

terms,   plaintiff   waived   any   further    objection    to   defendant's

discovery responses.

     In sum, we reverse the court's discovery-related orders and

remand for reconsideration. The parties may update their discovery

requests and disclosures given the passage of time while the appeal

has been pending.

                                      D.

     Even if the PMSA is deemed enforceable on remand, the court's

allocation of marital debt must be reversed. As with other aspects

of the court's ruling, the decision lacks any explanation that

would permit appellate review.

     The allocation of responsibility for the parties' marital

debts is subject to the same factors as the equitable distribution

of assets.   See Slutsky, 451 N.J. Super. at 348; Ionno v. Ionno,

148 N.J. Super. 259, 262 (App. Div. 1977); see also Rothman v.

Rothman, 65 N.J. 219, 232 (1974) (stating that a court must first

identify   the   property   subject    to   distribution;   determine     its

value; then allocate it most equitably). Once the court identifies

the debts that are subject to distribution, it must allocate them

                                    22                               A-1495-16T4
after considering the sixteen statutory factors identified in

N.J.S.A. 2A:34-23.1.         Elrom v. Elrom, 439 N.J. Super. 424, 444

(App. Div. 2015).

      "In every case . . . the court shall make specific findings

of fact on the evidence relevant to all issues pertaining to asset

eligibility or ineligibility, asset valuations, and equitable

distribution . . . ."        N.J.S.A. 2A:34-23.1.          Here, the court made

none.     The court did not explain the basis for identifying and

quantifying the various marital debts; nor did the court explain

its   reasoning    for   allocating      sixty-four       percent     of    them    to

defendant.

      We recognize that a 64:36 formula was used to allocate certain

expenses    in   the   PMSA,   however,      the   PMSA    reflects    a    lack    of

agreement to apply that ratio to marital debts.               Even if the court

concluded that the ratio of the parties' respective actual or

imputed    incomes     was     64:36,    the   parties'       relative      incomes

constitute just one factor in the equitable distribution analysis.

See   N.J.S.A.    2A:34-23.1(g).        For    these      reasons,    the   court's

allocation of marital debt must be reversed and reconsidered.

                                        E.

      In the order granting partial summary judgment, the court

awarded plaintiff $9035 in fees "for this application."                            The

court's sole explanation for the award was its oral observation

                                        23                                   A-1495-16T4
that "[t]his case has gone on too long" and plaintiff had incurred

fees.      The award of counsel fees is discretionary, and should be

disturbed "only on the rarest occasions, and then only because of

a clear abuse of discretion."          Packard-Bamberger & Co. v. Collier,

167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J.

292, 317 (1995)); see also Barr v. Barr, 418 N.J. Super 18, 46

(App. Div. 2011).        However, a court abuses its discretion when it

fails to consider the factors set forth in Rule 5:3-5(c).                       See

B.G. v. L.H., 450 N.J. Super. 438, 464 (App. Div. 2017) (stating

that "[i]n considering a request for legal fees, the court must

consider the factors set forth in Rule 5:3-5(c)").                   Consequently,

we   are    constrained    to   reverse      the   fee   award   and   remand   for

reconsideration.        See Clarke v. Clarke ex rel. Costine, 359 N.J.

Super. 562, 572 (App. Div. 2003) (remanding for reconsideration

of fee award where court "did not address the pertinent factors

under Rule 5:3-5(c), and failed to make the required findings set

forth therein") (citing Rule 1:7-4).                Furthermore, if the court

finds      that   the   PMSA    is   enforceable,        it   must   consider   the

significance of the parties' mutual waiver of attorney's fees

expressed in that document.

      Reversed and remanded.          We do not retain jurisdiction.




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