                                NOT FOR PUBLICATION WITHOUT THE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-1443-18T2

AMY KAMMERMAN,

           Plaintiff-Respondent,

v.

PETER KAMMERMAN,

     Defendant-Appellant.
____________________________

                    Submitted September 9, 2019 – Decided September 16, 2019

                    Before Judges Sabatino and Geiger.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Ocean County, Docket
                    No. FM-15-0285-13.

                    Stolfe Zeigler, attorneys for appellant (Sonya K.
                    Zeigler and Heather N. Capp, on the briefs).

                    Wilentz, Goldman & Spitzer, PA, attorneys for
                    respondent (Joseph J. Russell, Jr. and Risa M. Chalfin,
                    of counsel and on the brief).

PER CURIAM
      In this post-judgment matrimonial case, defendant Peter Kammerman

appeals from a Family Part order denying his motion to modify parenting time

and granting the cross-motion of plaintiff Amy Kammerman, now known as

Amy Sandjso, for counsel fees and costs. We affirm in part and vacate and

remand in part.

                                       I.

      The parties have one child, a daughter, born in March 2007. They were

married in January 2008 and divorced on July 23, 2013. The parties entered into

a marital settlement agreement (MSA) that resolved the issues of custody and

parenting time. The MSA, in turn, incorporates by reference a consent order for

parenting time, including a modified court holiday schedule. Under the terms

of the MSA, the parties share joint legal custody of their daughter. Plaintiff is

the parent of primary residence and defendant is the parent of alternate

residence. The dual final judgment of divorce (FJOD) incorporates the terms

and conditions of the MSA.

      Pertinent to this appeal, defendant has parenting time on alternate

weekends from after school on Friday until 7:30 p.m. on Sunday during the

school year, and until 8:00 p.m. during summer recess. He also has parenting

time every Tuesday from after school until 7:30 p.m. during the school year and


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                                       2
from 9:00 a.m. until 8:00 p.m. during summer recess.          During the weeks

defendant does not have weekend parenting time, he has parenting time on

Thursday from after school or camp until 7:30 p.m. during the school year, and

from 9:00 a.m. until 8:00 p.m. during summer recess.

      Defendant has holiday parenting time from noon on Christmas day

through noon on New Year's Eve, every Memorial Day, and alternate

Independence Days. Each party has two non-consecutive weeks of vacation

parenting time. Each parent has the right of first refusal to have parenting time

if the other parent will be gone for two or more nights. Defendant also has

parenting time if plaintiff is working on a school holiday.       The parent not

exercising parenting time is entitled to two telephone calls a day with the child.

      Defendant first moved to modify parenting time in April 2017; however,

he voluntarily withdrew the motion before it was decided. Defendant then filed

a second, similar motion in August 2017. Defendant sought to substantially

modify the parties' parenting time schedule.

      Defendant requested parenting time every Monday at 9:00 a.m. through

Wednesday at 9:00 a.m. and alternate weekends from Friday at 9:00 a.m.

through Monday at 9:00 a.m.       In the alternative, as with the first motion,

defendant sought to: add a Tuesday overnight; extend his alternate weekend


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                                        3
parenting time through drop off at school on Monday morning; and extend

weekday parenting time by thirty minutes during the school year and one hour

during the summer.

      The second motion also sought holiday and vacation time modifications .

As to vacations, defendant sought to modify the parties' agreement as follows:

(1) increase a vacation week from seven to eight days; (2) increase the total

vacation time per parent to four vacations per year with each vacation consisting

of two consecutive weeks; (3) allow defendant to pick the child up at 8:00 p.m.

prior to exercising vacation parenting time; and (4) eliminate the twice daily

telephone requirement during vacations "where communication is limited." The

vacation parenting time modification sought were identical to those in

defendant's first motion.

      As to holidays, defendant wanted to change to an alternating winter school

break schedule; specifically, the parties would alternate having their daughter

from school closing until December 25 at 1:00 p.m. with having her from

December 25 at 1:00 p.m. until New Year's Day. Defendant also sought to

expand parenting time on July 4th, and to begin parenting time on Memorial

Day and Labor Day the Friday evening before the holiday and continue until the

Tuesday morning after the holiday.


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                                       4
      As with the first motion, defendant sought to pick the daughter up at 8:00

p.m. the night if there is a school holiday and plaintiff is working and when

exercising his right of first refusal, but only if plaintiff would be away on

business. For the first time, defendant also sought to decrease the amount of

time that triggered the right of first refusal to twenty-four hours; parenting time

on both holidays and non-school days when plaintiff was working, with pick up

at 8:00 p.m. the night before; and the right to pick up the daughter anytime

plaintiff was unable to do so. In addition, defendant sought parenting time

during summer recess when he was available and the daughter would otherwise

be enrolled in summer camp. Finally, defendant again sought to compel plaintiff

to obtain health insurance for the daughter that defendant would pay for and

added a request to compel the daughter to attend therapy.

      The second motion was adjourned to allow the parties to attend mediation

with a retired judge. After the mediation was unsuccessful, plaintiff cross-

moved for an award of counsel fees. In the alternative, plaintiff sought a

discovery schedule, an in camera interview of the child, and a plenary hearing

if the court determined defendant established a prima facie case of changed

circumstance.




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                                        5
      The trial court circulated a tentative decision pursuant to Rule 5:5-4(e),

which denied defendant's request to modify parenting time, approved

defendant's health insurance request and compelled therapy, and denied ordering

mediation as moot. Counsel for both parties advised the court that their clients

accepted the tentative decision. Accordingly, the court entered a November

2017 order that incorporated the terms of its tentative decision. Defendant did

not appeal that order.

      Less than ten months later, defendant filed his third motion to modify

parenting time, the denial of which is the basis for this appeal. Defendant

sought: (1) responsibility for the daughter's after-school care from pick up at

1:45 p.m. until plaintiff arrived home from work; (2) twenty days of vacation

parenting time with a twelve-day block of consecutive days; (3) Sunday

overnight parenting time; and (4) to extend his weekday drop off time by thirty

minutes during the school term and one hour during summer recess.

      Defendant asserts he was fifty-two years old when the parenting time

schedule was created six years ago in 2013. At that time he owned and operated

multiple dental practices and a gym. He claims he was in good health and had

no substantial medical issues. Defendant subsequently retired from practicing




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                                       6
dentistry and claims his health deteriorated and he was diagnosed with

"aggressive kidney failure" in 2017.

      In addition, defendant underwent quadruple bypass surgery in June 2018

and developed a pulmonary embolism, which he claims necessitated selling all

his dental practices and freed him from any employment obligations.

      Defendant claims that his daughter's school requirements, extra-curricular

activities, and social interests have changed since the November 2017 order was

entered. She now attends middle school and is dismissed at 1:45 p.m. each

school day, two hours earlier than elementary school ended. He noted plaintiff

still works and does not arrive home until 5:00 p.m.        While the child was

registered to attend the Y Kids aftercare program for two hours each day until

picked up by plaintiff, defendant claims the child actually took a bus home with

a neighbor's son and stayed at the neighbor's house until picked up by plaintif f.

The child now takes a bus to a different aftercare program.

      Defendant claims these events constitute a substantial change in

circumstances warranting a modification of the parenting time schedule.

      Plaintiff opposed the motion and cross-moved to deny defendant's motion

and for an award of counsel fees. In the alternative, plaintiff again sought a

discovery schedule, an in camera interview of the child, and a plenary hearing


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                                        7
if the court determined defendant established a prima facie case of changed

circumstances.

      Plaintiff asserts defendant filed his third motion to annoy and harass her.

She claims defendant incurs no counsel fees because he is in a relationship with

an attorney in the firm that represents him. Plaintiff contends the child is

thriving under the existing parenting time schedule. Plaintiff also contends

defendant shirks his parenting time responsibilities, has the child picked up by

others, and repeatedly cancels parenting time for personal reasons. She claims

defendant regularly fails to exercise scheduled parenting time and has requested

plaintiff pick up the child more than 300 times. As to defendant's health,

plaintiff asserts defendant had medical issues throughout the marriage and was

already retired and on long-term disability when the MSA was negotiated. She

contends defendant cancels parenting time or places the child with a third party

due to his medical issues.

      Plaintiff sought counsel fees of $8420.50. She states she incurred counsel

fees and costs of $10,901.50 opposing defendant's unsuccessful second motion.

      The trial court found no changed circumstances warranting a change to

the parenting time provisions in the parties' MSA and denied defendant's motion

in its entirety. It also found defendant was litigating the matter in bad faith,


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                                       8
causing "unnecessary legal fees," and awarded plaintiff counsel fees. The court

noted it denied awarding plaintiff counsel fees on the second motion, and

described the third motion as "almost identical" to the second motion, and

caused plaintiff to incur substantial legal fees. The court found the hourly rates

sought were reasonable under the circumstances. Finding some unspecified

services were duplicative, the court reduced the counsel fees from $8420.50 to

$7500. This appeal followed.

      Defendant argues the trial court erred when it: (1) found no change in

circumstances warranting a modification of parenting time; (2) applied the

standard of harm to the child to determine if the parenting time schedule should

be modified; (3) found defendant consented to the parenting time schedule

imposed by the November 17, 2017 order; (4) awarded plaintiff $7500 in

counsel fees without analyzing each of the factors set forth in Rule 5:5-3(c); and

(5) failed to make factual findings and state its conclusions of law in its decision

to award counsel fees in violation of Rule 1:7-4.

                                        II.

      Our review of Family Part orders is generally limited. Cesare v. Cesare,

154 N.J. 394, 411 (1998). We "accord particular deference to the Family Part

because of its 'special jurisdiction and expertise' in family matters." Harte v.


                                                                            A-1443-18T2
                                         9
Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at

413).    Generally, "findings by the trial court are binding on appeal when

supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411–

12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484

(1974)). We will not disturb the factual findings and legal conclusions unless

convinced they are "so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend the interests

of justice." Ricci v. Ricci, 448 N.J. Super. 546, 564 (App. Div. 2017) (quoting

Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015)). Challenges to

legal conclusions, as well as a trial court's interpretation of the law, are subject

to de novo review. Id. at 565.

        We begin our analysis by noting the parties agreed to the parenting time

schedule that defendant sought to modify.        The consensual parenting time

schedule was incorporated into the MSA and FJOD. "New Jersey has long

espoused a policy favoring the use of consensual agreements to resolve marital

controversies." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v.

Konzelman, 158 N.J. 185, 193 (1999)). "Voluntary agreements that address and

reconcile conflicting interests of divorcing parties support our 'strong public

policy favoring stability of arrangements' in matrimonial matters." Konzelman,


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                                        10
158 N.J. at 193 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). Thus, "fair

and definitive arrangements arrived at by mutual consent should not be

unnecessarily or lightly disturbed." Id. at 193-94 (quoting Smith, 72 N.J. at

358). "A party seeking modification of a judgment, incorporating a [settlement

agreement] regarding custody or visitation, must meet the burden of showing

changed circumstances and that the agreement is now not in the best interests of

a child." Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (alteration in original)

(quoting Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.

2003)).

      The MSA and defendant's submissions provide differing accounts of his

health and work schedule. The MSA states defendant's "income consists of

$120,000.00 that he receives in private disability insurance each year, his

income from his Kamy Dental practices, the income generated by Retro

Fitness/AJH Enterprises and additional income generated by [his] interests in

various other entities/properties." In contrast, defendant's brief asserts that at

the time the MSA was entered into, defendant owned and operated multiple

dental practices and a gym, and "was in good health with no substantial medical

issues." Defendant purportedly sold his dental practices on July 31, 2018.




                                                                          A-1443-18T2
                                       11
      While defendant may have more free time to exercise parenting time since

the sale of his dental practices, his disability predated the negotiation of the

parenting time schedule and MSA. Although "illness, disability or infirmity

arising after the original judgment" may constitute a change of circumstances

warranting modification of a parenting time schedule, Lepis v. Lepis, 83 N.J.

139, 151 (1980), the record demonstrates defendant was already disabled when

the parenting time schedule was established.

      Defendant also contends the changes in his daughter's school schedule and

her advancing age constitute changed circumstances. The child was six years

old when the FJOD was entered and eleven when defendant filed his third

motion. Her school day now ends two hours earlier.

      The court found defendant failed to present a prima facie case of

substantially changed circumstances warranting a modification of the parenting

time schedule. To the contrary, it found defendant's motion was filed in bad

faith, causing plaintiff to incur unnecessary legal expenses. The court based its

decision in large part on the denial of defendant's second motion, less than one

year earlier. Notably, defendant accepted the court's tentative decision denying

his second motion.     The court found defendant did not demonstrate any

substantially changed circumstances in the intervening ten months. It also noted


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                                      12
the child was "thriving" under the present schedule, and concluded a two hour

change in the child's school day was a minor change. The court also declined to

order another round of mediation.

      We discern no abuse of discretion by the trial court in resolving the merits.

Its findings and conclusions are supported by adequate, substantial, credible

evidence in the record. In a Family Part motion scheduled for oral argument, a

judge may tentatively decide the matter on the basis of motion papers and make

the decision available to the parties. R. 5:5-4(e). Unless either party renews the

request for oral argument after reviewing the tentative decision, the tentative

decision becomes final, and the right to oral argument is waived. Id. Here,

defendant reviewed the tentative decision and agreed to the terms. The final

order denying his second motion was, in all material aspects, identical to the

tentative decision and resolved all parenting time issues raised by defendant.

The record supports the trial court's finding that defendant did not demonstrate

any substantially changed circumstances that occurred after the denial of his

second motion or that the parenting time schedule is no longer in the best

interests of a child. Accordingly, the trial court properly concluded that a

modification of the parenting time schedule was unwarranted. Of course, if a

genuine future change in circumstances arises, nothing prevents either party


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                                       13
from moving to modify the parenting time schedule if the dispute cannot be

amicably resolved.

                                        III.

      We next address the award of counsel fees to plaintiff. A court may, in

its discretion, order a party to pay the successful opposing party's attorney's fees

in family actions, including claims for parenting time. N.J.S.A. 2A:34-23; R.

4:42-9(a)(1); R. 5:3-5(c). When doing so, the court should consider:

            (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.

            [R. 5:3-5(c); see also Mani v. Mani, 183 N.J. 70, 94-95
            (2005).]

      Fee awards should be disturbed "only on the rarest occasions, and then

only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292,

317 (1995). A trial court's failure to consider the appropriate factors, make the

required findings, and state its conclusions of law constitutes a clear abuse of

discretion. Saffos v. Avaya Inc., 419 N.J. Super. 244, 270-71 (App. Div. 2011).

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                                        14
      "Trial judges are under a duty to make findings of fact and state reasons

in support of their conclusions." Giarusso v. Giarusso, 455 N.J. Super. 42, 53

(App. Div. 2018) (quoting Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div.

1996)). "Naked conclusions" do not satisfy the requirements of Rule 1:7-4(a).

Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562 (App. Div. 2009)

(quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)). A counsel fee award that

is unsupported by adequate findings must be set aside. Clarke v. Clarke ex rel.

Costine, 359 N.J. Super. 562, 572 (App. Div. 2005); Loro v. Colliano, 354 N.J.

Super. 212, 227 (App. Div. 2002).

      During oral argument, defense counsel asked the Family Part judge to set

forth the basis for its counsel fee award. Counsel also inquired if the fee award

was punitive. The court responded:

            It was both. Your client by virtue of his actions created
            unnecessary legal fees. I was persuaded by their
            argument that this was predictable, that last time I
            specifically declined their request for attorney's fees
            which I was considering . . . . Now he's back again with
            the almost identical motion and it caused them to incur
            a lot of fees. I didn't give them everything they asked
            for because there were, some things were duplicative.
            But I did think that the $7500 was justified, that . . . the
            hourly rate was reasonable under the circumstances.

Notably, the court stated it read counsel's certification and "considered all of the

factors required under the rules in order to award fees," but did not "weigh all

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                                        15
of the factors" and did not "know what the respective economic" positions were.

Nevertheless, the court concluded defendant "is better able to pay these fees than

[plaintiff] is." The court also explained: "I didn't give them everything, but I

would say it was weighted by the fact that I thought that this was almost the

identical motion from last year and it shouldn't have been brought at this time."

      Defendant argues the trial court failed to comply with Rule 1:7-4(a),

which requires the court to "find the facts and state its conclusions of law." We

agree. The court did not: specify the services it found duplicative or the amounts

charged for those services; make findings regarding "the time and labor

required, the novelty and difficulty of the questions involved, and the skill

requisite to perform the legal service properly;" nor address in its decision "the

experience, reputation, and ability of the . . . lawyers performing the services."

RPC 1.5(a) (1), (7). Instead, the court only stated the hourly rates charged were

reasonable without making any findings regarding "the fee customarily charged

in the locality for similar legal services." RPC 1.5(a)(3). The court also did not

specifically address and weigh each of the Rule 5:3-5(c) factors, including

plaintiff's ability to pay her own fees or the extent of the fees incurred by

defendant. R. 5:3-5(c)(2), (4).




                                                                          A-1443-18T2
                                       16
      We vacate the counsel fee award and remand the issue for the development

of a proper reviewable record. On remand, the judge shall make appropriate

findings of fact and conclusions of law addressing the factors set forth in Rule

5:3-5(c) and RPC 1.5(a). We express no opinion as to the appropriate fee award

in this matter.

      Affirmed in part and vacated and remanded in part for further proceedings

consistent with this opinion. We do not retain jurisdiction. Any party aggrieved

by the trial court's final disposition on remand may file a timely appeal.




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                                       17
