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Rubin v. Rubin

Decided: October 27, 1982.


On appeal from the Superior Court, Chancery Division, Bergen County.

Pressler and Trautwein. The opinion of the court was delivered by Pressler, J.A.D.


This is a post-judgment matrimonial cause. Defendant Michael Rubin appeals from an order of the Chancery Division denying his application for reconsideration of a prior order granting plaintiff Phyllis Rubin, on an ex parte basis, an increase in child support. We reverse and remand.

The parties were divorced by a judgment entered in December 1977, which incorporated the terms of their property settlement agreement. It appears that at the time the agreement was entered into, plaintiff was employed as a school teacher, earning considerably more than her husband, who was self-employed as a "consultant" and whose net earnings for calendar year 1976 had been stipulated to be $4,002. No provision was consequently made for alimony to the wife and, based on his modest income, his child support obligation was fixed at $25 weekly subject to the proviso that upon "improvement in the husband's financial circumstances" he would increase child support payments "to an extent satisfactory to the wife." In aid of the prospective increase the husband agreed to provide the wife, by May 1 of each year, with a copy of his income tax for the preceding year. It further appears that the husband failed to comply with the wife's subsequent requests for income tax data although he did on occasion give her some small additional sums for child support. She has since remarried and now resides with her new husband and the child in Rockland County. Defendant has in the interim maintained his paternal relationship with the child through regular visitation.

This matter, the first post-judgment proceeding between the parties, was commenced by the wife's motion filed in May 1981 seeking an order requiring defendant to supply her with his prior years' income tax returns, retroactively increasing child support to $100 weekly, requiring him to reimburse her for all the expenses incurred by her since 1977 for the child's nursery and religious school attendance and awarding her costs and counsel fees on the motion. The motion was supported by the wife's certification arguing that although she did not know what the husband's annual income had been since 1976, his life style suggested a substantial increase over its then level.

The notice of motion was served upon the husband, who neither retained an attorney nor filed answering papers. He did, however, appear in court on the return day of the motion. As he explained in a subsequently filed certification:

I have never gone through this procedure before where a former wife asks for an increase. I thought I could come to Court and argue the motion, but when I arrived in Court, I found out then for the first time, that because I had not filed any papers in opposition, I could not even be heard. Quite frankly, I thought I could go into Court, speak to the other attorney and settle this matter before the Judge.

It appears that despite his offering of the foregoing explanation to the judge, it was nevertheless the judge's ruling that since no answering papers had been filed, the wife's motion would be considered as an ex parte motion. Accordingly, the judge entered an order, dated July 8, 1981, noting the ex parte status of the wife's motion and according her a variety of relief, including increasing child support to $100 retroactive to January 1, 1978; directing the husband to provide her with his prior tax returns as well as with an authorization enabling her to get his future returns directly from the Internal Revenue Service, and requiring the husband to pay the child's nursery and religious school expenses incurred since 1977.

Prior, however, to the entry of this order and, apparently promptly following his futile court appearance, the husband obtained counsel who filed a motion on his behalf on June 29, 1981, returnable July 17, 1981, requesting reargument of the

wife's original motion or, alternatively, a reduction of the anticipated $100 a week order. The husband also sought modification of the visitation schedule in order to afford him two full weekends monthly with the child rather than the agreed single weekend a month. That motion was supported by defendant's certification which addressed both procedural and substantive concerns and which also had annexed thereto his income tax returns showing for the years 1977 to 1980, inclusive, respective adjusted gross incomes of $9,982, $442, $26,464 and $27,356. The wife's disputatious answering certification did not challenge these income figures.

The return date of the husband's motion was apparently adjourned to August 14, 1981. On that date the judge commenced the proceedings by announcing that he was denying the application for reconsideration of his July 8 order without oral argument and that he would hear argument only on the question of the modified visitation schedule requested by the husband. Following this hearing he entered an order on September 11, 1981 denying reconsideration of the July order and denying modification of the provisions of the July order. The husband was granted his requested additional visitation subject to terms respecting the child's ...

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