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Scheiner v. Eisenberg

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 12, 2007

SHOLOM SCHEINER, PLAINTIFF-APPELLANT,
v.
RACHEL EISENBERG, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-194-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 7, 2007

Before Judges Wefing and Parker.

Plaintiff Sholom Scheiner filed a notice of appeal pro se stating that he is appealing from an order entered on February 8, 2006, denying his motion for reconsideration. His brief, however, makes it clear that he is actually appealing from two other orders: one entered on May 12, 2005 denying his motion to reduce child support and the other entered on December 16, 2005 requiring him to pay one-half of the private school tuition for the three children of the marriage and one-half of "the unreimbursed medical costs as his contribution in regard to health care providers including mental health care providers." Plaintiff subsequently moved for reconsideration of the December 16 order and that motion was denied in the February 8, 2006 order subject to this appeal.

A judgment of divorce was entered on October 5, 2000 in Massachusetts and addressed only child support. At the time of the divorce, the parties' three children were ages four, two and one. Plaintiff was ordered to pay $264 per week in child support.

The parties are Orthodox Jews and the three children of the marriage now attend a private Jewish school. Tuition for the three children was $13,350 for the 2005-06 school year. At the time of the cross-motions, which resulted in the May 12 and December 16 orders, plaintiff attested that his current wife was expecting her second child and he could not afford to pay the $264 per week in child support as ordered in the judgment of divorce. He sought a reduction to $150 per week. He objected to defendant's cross-motion seeking an order for him to pay one-half of the children's private school tuition.

Plaintiff's case information statement, dated January 18, 2006, indicates that he earned $54,509.84 in 2005. Defendant's case information statement, dated December 13, 2005, indicates that she earned $4,500 from her part-time job at the school attended by her children. Unfortunately, plaintiff failed to provide us with transcripts of the motions that led to the orders he seeks to appeal as required by R. 2:5-3(b).*fn1 Moreover, plaintiff failed to provide us with the child support worksheets, which should have been appended to the orders. R. 5:6A.

Plaintiff argues that his "circumstances have changed due to subsequent biological children." He maintains that defendant is under-employed and that her responding papers were inadequate because she failed to include pay stubs or other proof of her income. He argues further that his ability to pay was not seriously considered and the orders of the trial court should be reversed.

The May 12, 2005 order has a statement appended to it indicating that the "relief sought by the motion is denied for the reasons set forth on the record of May 6, 2005 after oral argument." Since we do not have the transcript, we are unable to determine the grounds for the trial court's decision. Similarly, the December 16, 2005 order indicates that the court conducted an in camera interview with one of the parties' children but no transcript has been provided for us to evaluate the court's reasoning for its decision, requiring plaintiff to pay fifty percent of the tuition and the unreimbursed medical costs.

In short, after considering the record presented to us on appeal, we are unable to determine whether the trial court applied the Child Support Guidelines or otherwise gave fair consideration to the motions.

We note, however, that

[C]hild support, as that policy is primarily implemented through the Child Support Guidelines, does not substantially differentiate between children born of first or ensuing relationships when modification is an issue . . . . The current theory, as practiced by our courts, is direct and sound: A child's right to be adequately fed, clothed, housed and educated should not primarily depend on the date of his or her birth, the family in which he or she is born. Equality before the court, the child's right to be nurtured, should never be subject to such a presumptive "time or status" litmus test.

Since our Child Support Guidelines do not specifically provide a pat formula where intact second families seek modification of first family orders, how to implement a fair division of a common parent's income can be a nettlesome task not amenable to mechanical, mathematical certainty or equation. (See Appendix IX-B, IX-C and IX-E, ¶ (c)(4), Pressler Current N.J. Court Rules, pp. 1676-79, 1682.) More often than not . . . second family petitions can raise tension levels severely, and can further polarize the parties: Family one sees such applications as an unfair erosion of their standard of living directly caused by the obligor's unwillingness to recognize that if he cannot support the children of the first relationship, he should have refrained from having more; and family two, primarily the new spouse . . . perceives such strident opposition as nothing more than a "cake for you, crumbs for me" response, a contest fought for her and for her child's survival . . . . For first and second family children do, in fact, frequently suffer direct economic, social consequence when there is too little foresight and insufficient income to meet the needs of both.

Every request for modification of a child support order must demonstrate that changed circumstances exist. Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980). A newly-born child, within a first family relationship or beyond it, is a person not contemplated at the time of the original order for whom provision, and accommodation must be made. Appendix IX-A(5), Pressler Current N.J. Court Rules, p. 1674. [Martinez v. Martinez, 282 N.J. Super. 332, 340-42 (Ch. Div. 1995).]

Thus, the trial court is obligated to undertake an analysis under the Child Support Guidelines to determine whether there are changed circumstances warranting modification of plaintiff's support obligations, and if so, determine the appropriate level of support for the children of the first marriage as well as the second. Moreover, the trial court must balance the parties' religious beliefs with their financial capabilities for providing private religious schooling for their children.

In the absence of the transcripts we are unable to determine whether the trial court undertook the necessary analysis or considered the relevant factors. Moreover, the Child Support Guidelines worksheet was not appended to the orders submitted to us as required by R. 5:6A. Accordingly, we are unable to undertake a meaningful review of the orders appealed and we affirm. R. 2:11-3(e)(1)(E).

We note, however, that if the trial court failed to undertake an analysis under the Child Support Guidelines either in writing or on the record, as required by R. 5:6A, plaintiff should make an application for the trial court to do so before he files a new appeal. Similarly, if the trial court failed to append a worksheet to the orders, as required by R. 5:6A, plaintiff should make an application for the trial court to do so.

Affirmed.


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