On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-117-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Baxter.
Defendant John Pafumi appeals from the October 20, 2006 order of the Family Part denying his application under Rule 4:50-1 seeking relief from a July 13, 2006 order fixing the amount of his child support obligation. He argues that the court erred in the July 13 order by: (1) failing to deduct the $38 per week he paid for his daughter's healthcare insurance; and (2) failing to adjust his income to reflect his social security contribution paid as a self-employed individual. The court denied the motion, finding that defendant had not established any of the grounds for relief outlined in Rule 4:50-1.
After reviewing the record, we remand for the trial court to consider the merits of defendant's application. The controlling facts are essentially undisputed.
The day after receiving the court's July 13 order, instead of filing a formal motion for reconsideration under Rule 4:49-2, defendant's counsel simply wrote a letter to the trial judge asking him to reconsider his decision. The next relevant event occurred one month later, when, by letter dated August 14, 2006, defendant's counsel advised his adversary that the judge, through his law clerk, had "recently" suggested that the parties should get together to see if they were able to "work it out." In this letter, defendant's counsel also referred to plaintiff's counsel's failure to return his telephone call. By this date, the time for filing a motion for reconsideration had expired.*fn1
From this record, we can surmise that defense counsel's failure to proceed in a formal and timely manner pursuant to Rule 4:49-2 may have been influenced, at least in part, by the court's suggestion to explore the possibility for a negotiated settlement. Under these circumstances, we are satisfied that defendant's conduct constitutes excusable neglect under Rule 4:50-1(a). Mancini v. EDS, 132 N.J. 330, 335 (1993).
The matter is remanded for the trial court to consider defendant's application on the merits.
Reversed and remanded. We do not retain ...