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O''Brien v. O''Brien

Decided: September 28, 1992.

CECELIA T. O'BRIEN, PLAINTIFF-RESPONDENT,
v.
JOHN A. O'BRIEN, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County.

Michels, Bilder and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

[259 NJSuper Page 403] Defendant appeals from the Family Part's denial of his motion for reconsideration of an application to reduce child

support. The prior motion, which was predicated upon defendant's claim that he had been terminated from his place of employment, was denied on the documentary submissions without a statement of reasons. The Judge who decided the original motion was then transferred. Defendant's motion for reconsideration was heard by another Judge who had recently been assigned to the Family Part. In denying defendant's application for reconsideration, the Judge noted that the original motion was not accompanied by an updated case information statement. Although defendant had corrected that omission in his motion for reconsideration, the Judge found no basis to modify the order previously entered. In a brief oral opinion, the Family Part made no specific findings, but instead denied defendant's motion "for whatever reasons [the Judge who decided the original application] may have expressed." We reverse and remand the matter to the Family Part Judge who decided the original motion.

The salient facts can be succinctly stated. The parties were divorced on April 28, 1980. Plaintiff was granted custody of the parties' two children and defendant was ordered to pay alimony and child support. In addition, defendant was directed to maintain health and medical insurance for the benefit of the children. Over the years, defendant's salary as a computer consultant increased. In various post-divorce judgment orders, the Family Part terminated defendant's alimony obligation, but increased child support. On April 9, 1991, the Family Part ordered defendant to pay $432 per week for child support. At the time, defendant was earning $116,000 gross income.

On June 28, 1991, defendant moved to reduce child support on the basis that he had been terminated from his employment approximately one month earlier. In his supporting affidavit, defendant asserted that he was unable to find a job and that his sole source of income was unemployment compensation. He also contended that his medical and health insurance for the children had been terminated when he was discharged.

On August 28, 1991, the Family Part entered an order denying defendant's motion and directing him to pay all arrears within 90 days. The court ordered plaintiff to attempt to obtain medical and health insurance from her employer and directed defendant to reimburse her if she were successful. In the event plaintiff could not obtain "the same coverage," defendant was ordered to reinstate his insurance at his own expense. As we noted previously, defendant's motion was decided on the papers and no statement of reasons was provided.

Defendant filed a timely motion for reconsideration returnable on September 27, 1991. In his supporting affidavit, defendant related that he had obtained employment as an independent computer consultant on July 31, 1991. He was to be paid $375 per day until April 1992, at which time his employment relationship was to be reviewed. Defendant anticipated working 44 weeks a year, allocating four weeks for vacation, two weeks for unpaid holidays and two weeks of sick time. He estimated that he would have a gross income of $82,500, $33,500 less than his previous salary.

Defendant's motion was assigned to a Judge recently transferred to the Family Part. The Judge observed that he was in an "awkward position," because he had not decided the original motion. While noting that "there was [not] enough information" before the Judge who had decided the motion to reduce and that no findings had been made, the court refused to modify the prior order, citing "whatever reasons . . . may have been expressed" previously.

It is against this factual backdrop that we consider defendant's arguments that (1) the motion for reconsideration should have been assigned to the Judge who decided the original application, and (2) neither Judge provided findings of fact and legal Conclusions sufficient to support the result reached. We agree with both contentions.

Initially, the transfer of the Judge who had decided the motion to reduce child support should not ...


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