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Brennan v. Brennan

December 27, 1982

DIANE BRENNAN, PLAINTIFF-APPELLANT,
v.
MICHAEL BRENNAN, DEFENDANT-RESPONDENT.



On appeal from Superior Court, Chancery Division, Union County.

Before Judges Fritz, Joelson and Petrella.

Petrella

The opinion of the court was delivered by PETRELLA, J.A.D.

This appeal in a matrimonial action is from a May 29, 1981 ruling,*fn1 as embodied in a September 22, 1981 order, denying plaintiff's post-judgment motion for enforcement of litigant's rights and granting defendant certain relief on his cross-motion. We affirm.

Defendant had cross-moved for an order declaring plaintiff in violation of litigant's rights because of her failure to comply with the terms of the divorce judgment and certain orders filed thereafter regarding visitation rights with the infant children of the marriage. The cross-motion also sought a reduction in the $2,460 of arrearages in child support as a sanction against plaintiff for her lack of compliance with the court's prior orders for visitation, and permission for defendant to pay the remaining balance of arrearages in by-weekly installments. Defendant also sought to restrain plaintiff from interfering with his visitation rights and his relationship with the children, as well as an order directing her to encourage rather discourage visitation. Both motions sought counsel fees.

After hearing the applications as a sanction against plaintiff, the judge forgave half of the arrearages owed by defendant and essentially granted him the relief sought on his cross-motion, except that the judge ordered the remaining balance paid through the Union County Probation Office. Defendant was also directed to pay for orthodontic care rendered to his daughter. Plaintiff's attorney orally obtained a 14-day stay from the May 29, 1981 ruling. He represented to the court that he would prepare the order immediately so that they might have an order from which to appeal if his client so decided. However, plaintiff's attorney did not prepare or submit a proposed form of order within the time required by R. 4:42-1(a), or as represented, and finally on September 15, 1981 counsel for defendant prepared and forwarded a form of order to the judge. That order was ultimately signed and filed on September 22, 1981. Plaintiff appeals therefrom, contending that there should have been no reduction in arrearages; that defendant should have been denied visitation because of the arrearages, and that she should have been awarded counsel fees.

The parties were divorced by a final judgment entered March 23, 1979, which included the agreement of the parties that defendant would pay $260 a month in alimony and child support, allocated $65 a month for plaintiff and $65 a month for each of

the minor children born of the marriage. The judgment also provided, among other things, for visitation of the children by defendant. In October 1979 plaintiff moved for an order in aid of litigant's rights to collect arrearages which had accrued in defendant's alimony and support payments and to enforce his obligation to pay medical and dental bills. Defendant cross-moved for enforcement of litigant's rights, seeking, in part, an order requiring plaintiff to comply with the divorce judgment with respect to his right of visitation. Defendant did not deny the existence of arrearages but said by way of explanation that his business had been slow. He also asserted that his wife had obstructed his visitation attempts by instructing his children to tell him that they did not want to go with him. Defendant filed a supplemental motion in December requesting the court to direct plaintiff to allow Christmas Eve visitation as specified in the divorce judgment. Although these motions were apparently decided only after the holiday, plaintiff was ordered to comply with defendant's visitation rights. That order is not the subject of this appeal, but it is background to the unduly protracted nature of this case.

Problems persisted with respect to defendant's right of visitation and new motions were brought which gave rise to this appeal. Plaintiff brought another motion for enforcement of litigant's rights. Defendant cross-moved for enforcement of his rights. Defendant's supporting certification, dated May 12, 1981, asserted that his former wife and influenced the children against him, and that since his remarriage in September 1980 he had been totally denied visitation. He asserted that his failure to make support payments since October 1980 was in part attributable to his frustration with plaintiff's total disregard of his visitation rights, by a slump in his landscaping and roofing business as a result of the water crisis, and to increased competition due to others entering the field because they were unable to find jobs in other occupations.

In a May 22, 1981 reply certification plaintiff denied interference with defendant's visitation ...


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