July 2, 2007
SUEMAN CHEN (F/K/A SUEMAN CHAO), PLAINTIFF-RESPONDENT,
JOSEPH CHAO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2609-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically May 25, 2007
Before Judges Payne and Graves.
On December 15, 2003, after being married for more than twenty years, the parties signed a property settlement agreement (PSA), and they were divorced the same day. Defendant Joseph Chao appeals from an order dated February 16, 2006, awarding counsel fees to plaintiff in the amount of $3,500 and denying his request for an order directing plaintiff (1) to pay him the sum of $31,753, representing monies he paid to plaintiff pursuant to an order dated April 26, 2005, (2) to pay him directly or to transfer from plaintiff's 401(k) plan to defendant's 401(k) plan, the sum of $6,342.68, (3) to pay him the sum of $13,100 for "overpayment of child support," (4) to deliver a fully executed deed for a Keansburg investment property, (5) to deliver "documentation evidencing the children's education trust fund has been set up to include [defendant's sister] as a co-trustee," and (6) to pay "reasonable counsel fees and costs" incurred by defendant. We affirm the denial of defendant's request to vacate the order dated April 26, 2005, but we reverse and remand the remaining issues for reconsideration.
On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED IN REFUSING TO SET ASIDE THE APRIL 26, 2006 ORDER DIRECTING THE DEFENDANT TO PAY THE PLAINTIFF $6,000.00 AND DIRECTING THE PARTIES TO EQUALLY DIVIDE THE "REMAINING BALANCE" OF THE ESCROW ACCOUNT[.]
A. THE LANGUAGE IN THE ORDER DIRECTING THE BALANCE REMAINING IN THE TRUST ACCOUNT TO BE EQUALLY DIVIDED AND DISTRIBUTED WAS BASED UPON A MISTAKE WHICH, IF LEFT UNCORRECTED, GRANTS A SUBSTANTIAL WINDFALL TO THE PLAINTIFF AT THE DEFENDANT'S EXPENSE.
B. DEFENDANT SHOULD BE RELIEVED FROM THE PORTION OF THE APRIL 26, 2005 ORDER ORDERING $6,000.00 TO BE PAID TO THE PLAINTIFF FROM THE ESCROWED FUNDS BASED UPON R. 4:50-1(c).
C. DEFENDANT SHOULD BE RELIEVED FROM THE ORDER DIRECTING $6,000.00 AND THE BALANCE OF THE PROCEEDS TO BE PAID TO THE PLAINTIFF FROM THE ESCROWED FUNDS BASED UPON R. 4:50-1(f).
THE TRIAL COURT ERRED IN REFUSING TO FIND PLAINTIFF IN VIOLATION OF LITIGANT'S RIGHTS AND ENFORCE THE PARTIES' PROPERTY SETTLEMENT AGREEMENT.
A. THE TRIAL COURT ERRED IN REFUSING TO FIND PLAINTIFF IN VIOLATION OF LITIGANT'S RIGHTS AND ENFORCE ARTICLE IV, PARAGRAPH A OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT.
B. THE TRIAL COURT ERRED IN REFUSING TO FIND PLAINTIFF IN VIOLATION OF LITIGANT'S RIGHTS AND ENFORCE THE PROVISION IN THE PARTIES' PSA DIRECTING PLAINTIFF TO PROVIDE HUSBAND WITH DOCUMENTATION EVIDENCING THE CHILDREN'S EDUCATION TRUST FUND HAS BEEN SET UP TO INCLUDE LINDA LIN AS CO-TRUSTEE AND DOCUMENT ALL WITHDRAWALS FROM ACCOUNT.
THE TRIAL COURT ERRED IN REFUSING TO DIRECT THE PLAINTIFF TO REIMBURSE DEFENDANT $13,100.00 AS AND FOR OVERPAYMENT OF CHILD SUPPORT[.]
THE TRIAL COURT ERRED IN REFUSING TO ACCEPT AND CONSIDER DEFENDANT'S REPLY CERTIFICATION[.]
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S REQUEST FOR COUNSEL FEES AND DENYING DEFENDANT'S REQUEST THAT PLAINTIFF PAY REASONABLE COUNSEL FEES[.]
The parties were married in December 1981 and two children were born of the marriage: James was born on January 7, 1987, and Christine was born on November 8, 1988. In their PSA, the parties waived "all past, present, and future rights" to alimony or spousal support, and they agreed that plaintiff would be "primary physical custodian" of the children. Defendant agreed to pay child support to plaintiff, according to the child support guidelines, through the Essex County Probation Department, and he agreed to provide plaintiff with "current income information" by June 1st each year. The parties agreed to equally divide "[a]ll of the marital assets, including but not limited to the marital residence . . . the two investment properties in Keansburg, each of the parties['] 401Ks, and all personalty." And the parties agreed twenty-five percent of the total sale price of the marital residence (12.5 percent from each party) would be placed into an education trust account to be administered by plaintiff and defendant's sister for the benefit of the children.
Following their divorce, the parties were unable to agree on various matters and court orders were entered by the same judge on April 26, 2004, May 5, 2004, December 7, 2004, January 21, 2005, April 26, 2005, and the order under appeal dated February 16, 2006. During oral argument on January 20, 2006, the trial court noted defendant had not appealed the order entered on April 26, 2005, and he had never moved for reconsideration. Defendant, through counsel, argued that his failure to request reconsideration was not his fault because he relied upon his prior attorney's representation that he was in the process of filing a motion for reconsideration. The trial court ruled, however, that defendant failed to present any "special circumstances" that would justify vacating the court's prior order. In addition, the court stated that the April 26, 2005, order "was not unreasonable and was not in violation of any rule or law or the exercise of the discretion of the [c]court." Consequently, defendant's request to vacate the order dated April 26, 2005, was denied.
A party may move to have a final judgment or order vacated pursuant to R. 4:50-1. Motions made pursuant to R. 4:50-1(a), (b), or (c) must be made within one year. R. 4:50-2. A motion under R. 4:50-1 is addressed to the sound discretion of the trial court, and the court's decision will not be disturbed "unless it represents a clear abuse of discretion." Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994).
Defendant challenges the substance of the order dated April 26, 2005, charging that the court misapplied the facts. That argument, however, would have been more appropriately made in connection with either an appeal or a motion for reconsideration. "It is well established that a R. 4:50 motion may not be used as a substitute for a timely appeal." Wausau Ins. Co. v. Prudential Prop. and Cas. Ins. Co., 312 N.J. Super. 516, 519 (App. Div. 1998). And untimely motions for reconsideration are governed by the same principle. Ibid. In denying defendant's motion to vacate the order entered on April 26, 2005, the motion judge noted that defendant's former attorney "did a superlative job." Based on our review of the record, we are satisfied the judge, who was thoroughly familiar with the parties' claims and the history of the litigation, did not abuse his discretion.
With respect to defendant's other requests for relief, we note that, during oral argument before the trial court, plaintiff's attorney acknowledged the delay in providing defendant with a deed to the Keansburg property resulted from her "inadvertence" and not her client's. Plaintiff's attorney also advised us during oral argument that plaintiff does not object to defendant's sister being named as co-trustee of the children's educational trust fund. Thus, we conclude it is not necessary for us to address either of these issues.
Defendant's motion was "denied in its entirety," but the court failed to set forth its reasons for rejecting defendant's remaining requests and for awarding counsel fees to plaintiff in the amount of $3,500. We are therefore obliged to reverse and remand these issues to the trial court.
With respect to child support, we note the order dated December 7, 2004, provides in pertinent part as follows:
4. (a) Child support payable by defendant to plaintiff shall be retroactive to September 1, 2004[,] with credits for amounts already paid, not necessarily dollar for dollar. This shall be without prejudice to a claim by plaintiff for retroactive support prior to September 1, 2004.
(b) Once the amount of child support is quantified, an Order shall be submitted providing that the future payments shall be made through the Essex County Probation Department or the Probation Department of the County in which defendant resides if he is residing in a different County when the time comes.
(c) Payment of child support shall be direct to plaintiff until the Probation Account is established. James B. Dudley, Esq., shall pay child support to plaintiff from defendant's share of the escrowed marital residence proceeds.
Thereafter, on January 21, 2005, defendant was required to pay child support in the amount of $300.00 per week, and defendant's attorney was instructed to pay plaintiff "child support arrears in the amount of $2,400." According to defendant, his attorney sent a check to plaintiff in the amount of $15,600 for child support payments from September 2004 through September 2005. In paragraph fourteen of her certification dated January 11, 2005, plaintiff acknowledges the receipt of this check and seems to confirm defendant was not obligated to pay child support "until October 2005." Nevertheless, in the same paragraph, plaintiff states that by March 2005, defendant "was once again in child support arrears in the amount of $1,800."
14. In December 2004, Your Honor ordered Defendant to pay child support retroactive to September 2004. (EXHIBIT E) Defendant's attorney forwarded $15,600 to my attorney for one year of child support. This meant that Defendant had to begin to pay weekly child support until October 2005. However, he refused to do so [and] by December was again in arrears. Your Honor ordered Defendant's attorney to release $2,400 to my attorney from the escrowed funds for child support arrears and prospective child support. (EXHIBIT F) At the same time Defendant was ordered to establish a child support probation account and to pay weekly child support; Defendant did neither. By March 2005, Defendant was once again in child support arrears in the amount of $1,800. Defendant's attorney forwarded $1,800 from Defendant's portion of the escrow account to pay his arrears.
Thus, because of apparent inconsistencies as to dates, the record is unclear regarding the status of defendant's child support payments, and there were no findings by the motion judge regarding this issue, defendant's remaining requests for relief, or the counsel fees awarded to plaintiff. Accordingly, we reverse and remand these issues to the trial court for reconsideration, findings of facts, and conclusions of law consistent with R. 1:7-4.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
© 1992-2007 VersusLaw Inc.