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Canning v. Canning

June 15, 2007

PHILLIP CANNING, PLAINTIFF-APPELLANT,
v.
TONI ANN CANNING, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2757-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2007

Before Judges Parker and Messano.

Plaintiff Phillip Canning appeals a series of post-judgment orders culminating in the June 1, 2006 order directing him to pay $3988.05 to his ex-wife, defendant Toni Ann Canning. After carefully considering the record and the legal arguments raised, we reverse and remand the matter for further proceedings consistent with this opinion.

The parties were divorced on December 13, 2004, after more than twelve years of marriage and having had two children together, Alexa, born on June 16, 1993, and Michael, born on August 7, 1997. On February 8, 2005, they entered into a property settlement agreement which was incorporated into their dual judgment of divorce. In pertinent part, the agreement required defendant, in whose name various credit card accounts were established, to provide plaintiff with a full accounting of the outstanding balances on the credit cards within thirty days; thereafter, plaintiff would pay defendant fifty percent of all balances due either in one lump sum, or in equal monthly installments over the next six months.

Apparently the accounting never took place and defendant was subjected to at least one collection action brought by one of the creditors. On July 26, 2005, defendant appeared ex parte and pro se before the motion judge applying for an order to show cause to enforce litigant's rights. Although the defendant's application is not part of the record, we gather from the motion judge's amplification of reasons filed pursuant to R. 2:5-1(b) that defendant raised "monetary" issues in her request. It is undisputed that defendant never served her initial papers on plaintiff prior to the court's entry of its order.

In that July 26, 2005, order, the motion judge converted defendant application for an order to show cause into a "motion to enforce litigant's rights" returnable on September 8, 2005. The order further provided that defendant was to serve plaintiff personally or by certified mail no later than August 1, 2005. On July 29, defendant sent a letter to the motion judge directly. In it, she requested that he "address all other agreements in the Amended Dual Judgment of Divorce" that plaintiff "has not responded to."

On September 9, 2005, defendant appeared in court but plaintiff did not. The judge inquired of defendant whether she served the July 26 order upon plaintiff. Defendant apparently displayed the certified mail return receipts and indicated she recognized plaintiff's signature on them. She also claimed to have spoken to plaintiff about the upcoming court date. Convinced plaintiff had been properly served, the judge entered an order which found plaintiff "in violation of litigant's rights" and also 1) fixed plaintiff's obligation for the credit card debts at $8500; 2) ordered probation to immediately "take an additional $250 per week from [plaintiff's] wages and forward [those monies] to defendant until the $8500 is paid off"; 3) ordered plaintiff to pay an additional $300 "as his share of extra expenses"; 4) ordered plaintiff to furnish defendant with proof of life insurance no later than October 21, 2005, failing which defendant could obtain life insurance and any premiums would be deducted from plaintiff's wages; and 5) ordered plaintiff to provide all necessary information from his employer regarding the formulation of the Qualified Domestic Relations Order (QDRO) contemplated in the judgment of divorce.

Plaintiff moved for reconsideration seeking to vacate the September 9, 2005 order, the return of any amounts that had been garnished from his salary since the order was entered, and counsel fees. In his certification, plaintiff contended that he never received notice of the return date because defendant served him at his mother's address where he no longer resided, that his mother signed for the certified mail and did not tell him, and defendant never orally told him about the date despite having seen him on multiple occasions when he visited with his children. In addition, he contested many of defendant's claims regarding the credit card debts, failure to provide the life insurance information, and failure to produce the QDRO.

Plaintiff's motion was made returnable on December 20, 2005, and he did not seek oral argument unless the motion was opposed. Defendant did not file any opposition, but she appeared pro se on the return date of the motion as did plaintiff and his counsel. The motion judge -- who noted at one point his "difficulty believing both of these people" -- was obviously frustrated in trying to determine whether defendant had actually served plaintiff with her prior motion.

The judge determined that plaintiff knew about the prior court date but ignored it. Turning to the substance of plaintiff's motion, the judge advised plaintiff's counsel that he would employ the following process to decide the disputed issues between the parties:

[The Court]: I just got a great idea. It's going to take you out of the mix and me out of the mix. I'm going to appoint an accountant . . . . They're both going to pay and . . . the Court will assess who should [] reimburse at the end . . . . I'm not going to go and play nursemaid and neither should you . . . . I'm not going to have a hearing on whether you got the information, didn't get any of the information, he paid, she paid. It's ridiculous.

He noted, "The accountant will be my deputy judge. And we get rid of this nonsense once and for all." The judge concluded the hearing by noting, I'll have [the plaintiff and defendant] back here at the end of January, and that will remove both of us from the mix. The accountant's report will be absolutely convincing to the Court because it ...


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