                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1745-17T2
                                                                    A-4985-17T2
A. MANNY ALICANDRO,

          Plaintiff-Appellant,

v.

SHARON ALICANDRO,
n/k/a SHARON MCQUEEN,

     Defendant-Respondent.
____________________________

                   Argued March 18, 2019 – Decided July 10, 2019

                   Before Judges Haas and Sumners.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Monmouth County,
                   Docket No. FM-13-0289-06.

                   Scott Adam Laterra argued the cause for appellant in
                   A-1745-17 (Laterra & Hodge, LLC, attorneys; Scott
                   Adam Laterra, of counsel and on the brief).

                   Howard A. Bachman argued the cause for respondent
                   in A-1745-17 (Dwyer Bachman & Newman, LLC,
                   attorneys; Howard A. Bachman, of counsel and on the
                   brief).
            A. Manny Alicandro, appellant, argued the cause pro se
            in A-4985-17.

            Sharon McQueen, respondent, argued the cause pro se
            in A-4985-17.

PER CURIAM

      These two appeals have been calendared back to back for the purpose of

a single opinion. A-1745-17 arises from an order dated December 4, 2017,

where the trial judge, without a plenary hearing or oral argument, granted

defendant Sharon Alicandro n/k/a McQueen's motion for reconsideration,

increasing plaintiff A. Manny Alicandro's child support obligations for their two

children, and requiring plaintiff to pay eighty percent of their daughter's college

expenses. A-4985-17 arises from an order dated June 25, 2018, where the same

judge, again without a plenary hearing or oral argument, denied defendant's

motion to enforce litigant's rights to compel plaintiff to pay their daughter's

college tuition as moot because he paid it prior to the motion's return date, but

ordered plaintiff without explaining the basis for the amount of the award to

reimburse defendant $2000 in attorney's fees she incurred in filing the motion.

      We reverse and remand both matters. In A-1745-17, the judge should

have conducted a plenary hearing to resolve disputed material facts regarding

child support and contribution of college tuition. In A-4985-17, the judge failed


                                                                           A-1745-17T2
                                        2
to set forth her findings of facts and legal conclusions regarding the amount of

plaintiff's attorney's fees defendant must pay.      Moreover, beyond these

shortcomings, the judge should have conducted oral argument in both matters.

                                       I.

      Plaintiff and defendant were married on October 9, 1991. Two children

were born of the marriage, F.A. (Fiona), in August 1999, and D.A., in September

2000.1 On March 28, 2007, the parties were divorced by way of a Dual Judgment

of Divorce, which incorporated an Interspousal Agreement setting forth their

financial obligations with respect to their children. They later entered into a

consent order on October 17, 2016, through which plaintiff's alimony obligation

was terminated effective October 1, 2016.        The order also stated, "[b]y

September 30, 2016, the parties shall exchange 2015 income tax returns, W-2's,

and their three (3) most recent paystubs, for the purpose of recalculating child

support," which would take effect October 1, 2016. The parties were unable to

facilitate this exchange and recalculation without court intervention, thus the

following litigation commenced.




1
   We use initials and fictitious names to identify the parties to protect and
preserve their confidentiality. R. 1:38-3(d)(12).
                                                                        A-1745-17T2
                                       3
      A-1745-17

      In 2017, defendant filed a motion seeking an increase in plaintiff's child

support, compelling him to contribute his share of Fiona's college education, and

attorney's fees and costs. Plaintiff cross-moved to decrease child support by

requiring the imputation of: defendant's income due to the payoff of her

mortgage by her live-in boyfriend; the boyfriend's shared household expenses;

and his salary decrease. Plaintiff also wanted his share of Fiona's college tuition

to take into consideration scholarships, loans, and her earnings and savings . He

also sought an award of attorney's fees and sanctions against defendant's

counsel.

      On August 29, without honoring the parties' request for oral argument, the

trial judge ordered, in pertinent part, the recalculation of child support and

allocation of Fiona's college tuition to twenty percent for plaintiff, ten percent

for defendant and the remaining seventy percent to be Fiona's responsibility.

The judge explained her decision in a statement of reasons attached to the order.

      Defendant moved for reconsideration. Again, the judge did not honor the

parties' request for oral argument and entered an order on December 4,

modifying child support and drastically changing the college tuition contribution


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                                        4
for Fiona to eighty percent for plaintiff, twenty percent for defendant, with no

contribution from Fiona. In her statement of reasons attached to the order, the

judge stated reconsideration was granted because her initial decision was

inadvertently based on the facts of a different case. This appeal followed.

        A-4985-17

        Plaintiff sought a stay of the December 4 order. The trial court and our

court denied the application. Plaintiff received a copy of our order on April 30,

2018.

        On May 3, plaintiff allegedly wrote and mailed a check for $6,085.52 to

defendant, the balance of his share of Fiona's tuition. The next day, defendant

filed a post-judgment notice of motion to enforce litigant's rights, seeking to

compel plaintiff to pay his share of Fiona's college tuition and attorney's fees

and costs.     The motion included defendant's supporting certification with

exhibits, and a certification of attorney's fees and costs. Defendant requested

oral argument if opposition was filed.

        On May 8, plaintiff filed his opposition and cross-moved seeking to deny

defendant's motion as moot because he paid his share of Fiona's tuition. Plaintiff

raised concerns regarding the reasonableness and authenticity of attorney's fees,

the timing of defendant's motion, and her failure to resolve the issue before filing


                                                                            A-1745-17T2
                                         5
a motion with a "simple phone call or email." Plaintiff also requested oral

argument.

         The judge did not allow oral argument, and ordered that the tuition issue

was moot because plaintiff made the payment to defendant. Nevertheless, the

judge ordered plaintiff to pay defendant $2000 in attorney's fees and costs –

$4385 was requested – without an explanation as to how she determined that

amount. This appeal followed.

                                         II.

                                         A.

         In A-1745-17, plaintiff contends that the trial judge should have

conducted a plenary hearing and honored his request for oral argument. We

agree.

         A plenary hearing is necessary when the parties' submissions show "a

genuine and substantial factual dispute." Hand v. Hand, 391 N.J. Super. 102,

105 (App. Div. 2007); see also Spangenberg v. Kolakowski, 442 N.J. Super.

529, 540-41 (App. Div. 2015). A trial judge may not resolve material factual

disputes, including credibility determinations, arising in the parties ' conflicting

affidavits and certifications; instead, when a genuine issue of fact is raised by

the parties' respective assertions, a plenary hearing must be held. Tretola v.


                                                                            A-1745-17T2
                                         6
Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006).         "Importantly, '[t]he

credibility of the parties' contentions may wither, or may be fortified, by

exposure to cross-examination and through clarifying questions posed by the

court[]' in a plenary hearing." Spangenberg, 442 N.J. Super. at 541 (alterations

in original) (quoting Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div.

2006)). A plenary hearing is unnecessary when it "would adduce no further facts

or information," and "[a]ll of the relevant material was supplied to the motion

judge[.]" Llewelyn v. Shewchuk, 440 N.J. Super. 207, 217 (App. Div. 2015)

(quoting Fineberg v. Fineberg, 309 N.J. Super. 205, 218 (App. Div. 1998)).

      Based upon our review of the record, there are material facts in dispute,

such as: the financial impact of defendant's cohabitation with her boyfriend;

whether plaintiff's reduction in income was voluntary; what was the current

income or assets of Fiona; whether Fiona was able to work; and whether Fiona

applied for financial aid pursuant to the parties' Interspousal Agreement.

Therefore, a plenary hearing should have been held to resolve these factual

disputes before the judge made her determinations for modifying child support

and determining the parties' contribution to Fiona's college tuition.

      Even if we conclude that a plenary hearing was not necessary, a reversal

and remand is in order because the judge mistakenly applied her discretion in


                                                                         A-1745-17T2
                                        7
refusing to conduct oral argument as plaintiff requested. Requests for oral

argument in family actions are governed by Rule 1:6-2(d), except as otherwise

provided in Rule 5:5-4.

      Rule 1:6-2(d) provides in pertinent part that "no motion shall be listed for

oral argument unless a party requests oral argument in the moving papers or in

timely-filed answering or reply papers, or unless the court directs." Rule 5:5-

4(a) provides that "in exercising its discretion as to the mode and scheduling of

disposition of motions, the court shall ordinarily grant requests for oral argument

on substantive and non-routine discovery motions and ordinarily deny requests

for oral argument on calendar and routine discovery motions."

      "This provision has generally been interpreted to require oral argument

'when significant substantive issues are raised and argument is requested. '"

Palombi v. Palombi, 414 N.J. Super. 274, 285 (App. Div. 2010) (quoting

Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998)). "The denial

of oral argument when a motion has properly presented a substantive issue to

the court for decision 'deprives litigants of an opportunity to present their case

fully to a court.'" Ibid. The court, however, retains discretion to dispense with

oral argument on substantive issues where the record provides all that is

necessary to make a decision on the issue presented. Ibid.; see also Raspantini


                                                                           A-1745-17T2
                                        8
v. Arocho, 364 N.J. Super. 528, 531-32 (App. Div. 2003). However, requests

for argument may be denied where the court sets forth appropriate reasons on

the record. Rule 1:6-2.

      Here, the issues of child support and college tuition were significant

substantive issues that warranted the judge to honor the requests for argument.

Furthermore, the judge did not identify the reasons as to why she denied the

argument requests for the reconsideration motion as well as the original motion.

                                        B.

      In A-4985-17, plaintiff contends that the trial judge erred in awarding

defendant attorney fees and costs by not conducting a plenary hearing and

honoring his request for oral argument. In addition, he contends the judge failed

to explain the reasons for the award.

      Applying the principles noted above, we agree that oral argument should

have been allowed, but do not agree that a plenary hearing was necessary.

Defendant's demand for $4385 in attorney fees and costs was significant enough

to allow plaintiff to argue why the request was unreasonable given the timing of

his payment. A hearing was unnecessary because there were no material facts

in dispute based upon the parties' submissions.




                                                                         A-1745-17T2
                                        9
      More importantly, our ability to consider the soundness of the fee award

has been hampered by the judge's failure to make findings of fact and

conclusions of law. Rule 1:7-4(a) requires that "[t]he 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[.]" When that is not

done, this court's review is impeded, and a remand is necessary. Elrom v. Elrom,

439 N.J. Super. 424, 443 (App. Div. 2015).         Accordingly, following oral

argument, the judge shall explain her reasons for determining whether defendant

is entitled to attorney fees and costs.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-1745-17T2
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