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Accardi v. Accardi

May 14, 2004


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Number FM-14-1147-94.

Before Judges Pressler, Parker and R.B. Coleman.

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


Argued January 13, 2004

Defendant appeals from post-judgment orders entered in this matrimonial matter on October 29, 2002, March 18, 2003, and April 1, 2003.

The parties were married on August 15, 1987, and had three children: Nicole on August 24, 1988, Alexandra on July 1, 1991, and Gabrielle on May 4, 1993. After a trial, a judgment of divorce was entered on February 22, 1996, awarding joint custody of the children with plaintiff having physical custody; directing defendant to pay $6,000 per month in child support,*fn1 provide health insurance for the children and pay all unreimbursed medical, dental and psychological expenses; directing defendant to pay $2,500 per month in rehabilitative alimony for four years from December 1, 1995; directing defendant to maintain $250,000 in life insurance for each child's benefit until she is emancipated; directing the parties to contribute to the children's college expenses to the extent they are able; dividing defendant's pension equally in a Qualified Domestic Relations Order (QDRO); ordering the parties' condominium sold and the proceeds distributed equally; and ordering distribution of the remaining property owned by the parties. The judgment also allocated tax exemptions for the children to defendant until plaintiff "has sufficient earned income to benefit from a tax exemption, following which defendant will be entitled to claim two of the three children."

In 1998, two years after the judgment of divorce was entered, defendant moved to decrease child support based upon changed circumstances, namely, a reduction in his 1997 income from $350,000 to $169,000. After a plenary hearing, an order was entered on November 4, 1998, reducing child support to $2,500 per month, "subject to future increases if so warranted by defendant's future income."*fn2 In a lengthy statement of reasons, the hearing judge reviewed the parties' finances in detail and stated that child support calculated in accordance with the Child Support Guidelines (Guidelines) "would yield a child support obligation of approximately $456 per week or a little less than $2,000 per month." She declined to reduce support to that amount, however, "because the children's activities and lifestyle have been planned upon the expectation of a much larger amount and because [defendant's] income not only includes additional benefits, but is to at least a limited extent controllable by [defendant] - for example, as to how many billable hours are worked."*fn3 The hearing judge noted that "[a]t the hearing, the parties agreed to exchange tax returns on an annual basis in order to see if there are significant changes in current incomes, and the court so orders." That provision, unfortunately, set the stage for the quagmire through which we now wade.

In November 2000, plaintiff moved to increase child support based upon defendant's 1999 income. The motion was argued on March 9, 2001, and on May 24, 2001, an order was entered*fn4 directing that a plenary hearing be scheduled to determine: whether plaintiff was entitled to an increase in child support; whether tax exemptions should be reallocated; and whether plaintiff was entitled to counsel fees. The parties were directed to exchange all documents they intended to offer into evidence at the hearing.

The plenary hearing was never scheduled, however, and on August 29, 2001, plaintiff filed a new motion requesting, among other things, a date for the hearing. Rather than schedule the hearing to resolve the issues pending since November 2000, the instant motion judge heard oral argument on October 12, 2001, and directed the parties "to submit initial papers and reply papers (submitted to each other simultaneously) to the court directly prior to the end of November 2001. Oral argument on support modification to be conducted within thirty days." That order scheduled the motion with disputed issues for oral argument, rather than a plenary hearing. The oral argument did not occur within thirty days, however.

On February 12, 2002, fifteen months after the initial motion was filed, and after lengthy argument, the motion judge reserved decision to the dismay of plaintiff's counsel who commented that "we've spent such an inordinate amount of time talking about it without resolution." On March 1, 2002, the motion judge entered an order directing defendant to: (1) pay retroactively $3,895 per month in child support, including $745 per month in extraordinary expenses, for the year 2000; (2) pay retroactively $3,175 per month, including $745 per month in extraordinary expenses, for 2001;*fn5 (3) continue providing health insurance for the children and pay unreimbursed therapy expenses; and (4) pay plaintiff's counsel fees in the amount of $5,000. The order declined to "impute additional income to [plaintiff] because there was no record on which to impute additional sums;" "declined to attribute an 'overpayment' of support [to defendant] under [the hearing judge's] order and offset it against future support because that would eliminate the equitable adjustment intended by [the hearing judge];" "declined to use a mandatory pension contribution offset for support because [the hearing judge] had apparently not utilized that offset;" and "declined to add an increment to [defendant's] salary for 'perks' because it appeared that the formerly cost free benefits were now enjoyed with costs." The order included the motion judge's worksheets with the calculations upon which she based support, but did not include a statement of reasons.*fn6

Shortly after entry of the March 1, 2002 order, defendant moved pursuant to R. 4:50-1 to correct mistakes in the motion judge's calculations and to resolve a number of issues raised in the motions, but not addressed in the March 1 order, including credits for overpayment of child support; allocation of taX deductions; apportionment of unreimbursed medical expenses; and the current (2002) child support obligation pending a determination of actual child support for 2002.

Although returnable on May 24, 2002, the motion was not heard until July 5, 2002. On that date, again, there was extensive oral argument, with the parties disputing virtually every issue. With respect to defendant's 2000 child support obligations, he argued that the motion judge erred (1) in calculating $9,000 per year or $173 per week for extraordinary expenses and incorrectly added it to, rather than included it in his child support obligation; (2) in calculating an upward adjustment of 14.6 percent for the oldest child; and (3) in calculating support for 2000 based upon plaintiff's attorney's representation of plaintiff's income, rather than plaintiff's 1999 income tax return.*fn7

In respect of defendant's 2001 child support obligations, he contended that the motion judge erred: (1) in calculating support based upon plaintiff's attorney's representation of plaintiff's income, rather than her 2000 tax return; (2) in failing to deduct alimony from defendant's income; (3) in failing to recognize as income to plaintiff $16,500 cash that plaintiff received from the sale of a car won in a raffle; (4) in failing to include defendant's other dependant deduction (ODD) for the child of his second marriage; and (5) in miscalculating defendant's 2001 support obligation.

Finally, defendant maintained that in the March 1 order, the motion judge failed to take into account: (1) that he overpaid child support in 2000 and 2001 by $1,630; and (2) plaintiff's ability to pay her own counsel fees. After extensive oral argument on July 5, 2002, no order was entered.*fn8

On October 29, 2002, there was yet another oral argument*fn9 on what the motion judge characterized as a motion and cross-motion. The judge indicated that plaintiff moved for reconsideration of a prior ruling "denying her contribution to childcare," and for counsel fees. The judge also addressed what was apparently a cross-motion by defendant for the judge to recuse herself; to set a visitation schedule; and "a lot of issues... revolving around Dr. Hagovsky and visitation, and... issues involving insurance."

Defendant's recusal motion was based upon the fact that the judge had previously recused herself from the case on the ground that she had been an associate of plaintiff's counsel. The judge denied the recusal motion on the record, explaining, "the problem has been here that when one judge recuses him or herself there aren't that many judges around." She further indicated "that [defendant] may also be concerned because he's filed a ...

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