July 11, 2007
LORI LEON SPECTOR (N/K/A SILVERMAN), PLAINTIFF-APPELLANT,
JAY BRIAN SPECTOR, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, No. FM-13-1984-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2007
Before Judges Wefing, Parker and C.S. Fisher.
Plaintiff appeals from various portions of a trial court order entered on December 21, 2005, with regard to plaintiff's motion for reconsideration of the trial court's earlier post-judgment order. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
The parties were married in July 1982 and divorced pursuant to a judgment of divorce entered in December 1997. They had three children -- Shaun, now twenty-one, Tara, now nineteen and Michael, now nearly eighteen. The judgment of divorce incorporated a property settlement agreement the parties had negotiated. Under that agreement, plaintiff waived any claim to alimony, and the parties agreed that defendant's child support obligation would be set by the court in accordance with the child support guidelines. The parties agreed, however, that the calculation of child support would take into account any bonus income and the expenses of child care. The parties agreed to share joint custody of the children, with plaintiff having primary residential custody. Further, they agreed they would share the children's college expenses "in accord with their ability at the time after application of all loans, grants, aid, scholarships or other financial help for which the child may be eligible, or children's assets have been used, in accord with the law of New Jersey at that time."
Several months after the judgment of divorce, in March 1998, the trial court entered an order setting defendant's child support obligation at $217.08 per week. Attached to the order was the child support guidelines worksheet.
Four years later, in March 2002, plaintiff filed a motion seeking an increase in child support, noting that the children were in their teens and that their expenses had increased over the years. Defendant opposed plaintiff's motion and sought instead a decrease in his child support obligation. In June 2002 the trial court entered an order increasing the amount of child support to $330 per week. In that same order, it directed plaintiff to reimburse defendant one-half the cost of orthodontic work for the children.
In September 2005, defendant filed a motion seeking a reduction in his child support obligation. In support of that motion, he submitted a detailed certification asserting a change in circumstances. According to that certification, the couple's oldest son no longer resided with plaintiff. Defendant asserted that the boy was a full-time college student who spent all of his break time with defendant and his new wife. Defendant also asserted that the couple's daughter, who was about to enter college full-time, no longer resided with plaintiff on a full-time basis.
In his certification, defendant recited, in connection with his income history, that he had received a one-time $20,000 relocation bonus from his employer, paid over two years. He recited that he was "not otherwise entitled to bonus income." Defendant filed a Case Information Statement in connection with his motion. In that, he recited that he had received a $65,000 relocation bonus, payable over three years.
He also complained that plaintiff had never reimbursed him for the orthodontic work, as she had been directed to do in the March 2002 order. With his motion, defendant submitted a request both for counsel fees and for oral argument.
Plaintiff opposed defendant's motion and submitted a detailed certification in which she contested most of the assertions defendant had made in support of his motion. In addition, she submitted a cross-motion in which plaintiff sought to enforce various provisions of the parties' judgment of divorce and an increase in support. She included as part of her motion another detailed factual certification setting forth why, in her opinion, she should get the relief requested. Defendant, in response, filed two detailed certifications in which he disputed plaintiff's factual contentions. In addition, he submitted a further request for counsel fees. Plaintiff responded with a reply certification.
After reviewing the motion papers, the certifications, and their numerous attachments, the trial court, without conducting oral argument, entered an order dated November 1, 2005, which, inter alia, contained the following provisions: defendant's application for a reduction in child support to $235.35 was denied, his application to retroactively reduce his child support obligations with respect to the couple's oldest son was denied without prejudice, his application that the court determine each party's responsibilities toward their children's college expenses was denied without prejudice, as was his request that plaintiff pay $1,331.56 toward the children's medical expenses. The order granted his application to hold that plaintiff was in violation of litigant's rights both with respect to payment of the orthodontic fees and with respect to her failure to consult with defendant in connection with an academic evaluation of their youngest child. It also found that each party had, to date, satisfied his or her respective obligations to contribute to their children's college expenses. It denied without prejudice plaintiff's application to have defendant contribute to those college expenses based on his ability to pay as well as her application that child support be recalculated based upon defendant's failure to comply with the parties' shared parenting agreement. The parties were directed to exchange updated financial information, prepare child support guidelines calculations and an amended consent order; if they could not reach agreement, either party was given leave to apply to the court. Finally, the order awarded defendant $2,000 in counsel fees.
Plaintiff had, throughout the course of this motion practice, appeared pro se. Upon receipt of the trial court's order, plaintiff retained counsel and filed a motion for reconsideration, again supported by a detailed certification. In connection with that motion for reconsideration, plaintiff requested oral argument.
Defendant filed opposition to this motion for reconsideration and also filed a cross-motion seeking reduction in his child support obligations in addition to other forms of relief. Defendant also requested oral argument. Plaintiff responded to this motion with a further certification.
The trial court denied the requests for oral argument and decided the matter on the basis of the papers submitted. It entered the order that is the subject of this appeal. In this order, the trial court denied reconsideration of the award of counsel fees, reduced defendant's child support obligation to $166 per week, found defendant was entitled to a credit of $2,001.04 for child support, again held plaintiff in violation of litigant's rights and ordered the parties to share college expenses in accordance with their ability to pay but did not allocate a percentage responsibility to either party; further, it awarded defendant an additional $1,000 in counsel fees.
Having reviewed this record, we are compelled to agree with plaintiff that the trial court erred when it denied the requests for oral argument. Rule 1:6-2(d) provides that except as otherwise provided by Rule 5:5-4, requests for oral argument on motions in the Family Part other than those involving pretrial discovery or calendar matters "shall be granted as of right." In turn, Rule 5:5-4(a) states that "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions." Oral argument may be denied only if the court is satisfied that the motion is based on unsubstantiated allegations, is repetitive, or is intended to harass the former spouse. Kozak v. Kozak, 280 N.J. Super. 272, 274-76 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997).
Further, we are in substantial agreement with plaintiff that the certifications and exhibits submitted to the court in connection with these various motions clearly demonstrated the existence of significant disputed factual questions. The trial court should not have proceeded to rule upon the substantive merits of the applications, in essence resolving those factual disputes, without affording the parties the benefit of a hearing at which each could testify and be subjected to cross-examination. Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995).
The order is deficient, moreover, in simply directing the parties to share college expenses in proportion to their ability to pay. The parties disagreed as to their respective abilities, and it was that disagreement which contributed to this litigation.
The order under review is reversed, and the matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.
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