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Newman v. Newman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 31, 2007

SALLY ANN NEWMAN, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
WILLIAM GUY NEWMAN, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, Docket No. FM-13-1187-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted:*fn1 October 3, 2007

Before Judges Cuff and Lisa.

Plaintiff Sally Ann Newman and defendant William Guy Newman divorced in January 1997. Both parties appeal from various provisions of a March 20, 2006 order entered in response to cross-motions for post-judgment relief. We affirm in part, reverse in part and remand for further proceedings.

A judgment of divorce (JOD) was entered on January 30, 1997. A supplemental judgment of divorce (SJOD) was entered on February 28, 1997, several provisions of which are the basis for the motions filed by each party. According to the SJOD, plaintiff has legal and physical custody of their child. The SJOD provided that defendant would receive joint legal custody when he completed six months of individual therapy and weekly co-parenting treatment interventions with a designated therapist. Defendant was also obliged to pay $78 basic child support weekly, as well as $40 weekly for work-related child care expenses and $8 weekly for kindergarten expenses. The SJOD also established child support arrearages of $4,500.

The SJOD also required plaintiff to maintain medical coverage for the child and provided that defendant was responsible for forty-six percent of all unreimbursed medical expenses, including dental, prescription drug, orthodontic and counseling expenses.

In January 2006, plaintiff filed a motion to enforce various provisions of the SJOD. She also sought reimbursement for medical and COBRA expenses. Defendant filed a cross-motion seeking joint legal custody of his son, recalculation of child support, an order requiring plaintiff to pay the first $250 of annual unreimbursed medical expenses, termination of his obligation to pay $8 weekly kindergarten and $40 weekly work-related child care expenses, and reimbursement for overpayment of kindergarten and work-related child care expenses.

The certifications in support of and in opposition to the requested relief reveal that plaintiff has had ongoing problems with alcohol abuse. We discern that she was sober for four years but relapsed in September 1999. She received in-patient rehabilitation services in 1999 during which the parties' son resided with defendant. Plaintiff also suffers from bipolar disorder. Defendant asserted, and plaintiff did not deny, that the parties' son resided with defendant from January 2003 to April 2005.

Following oral argument on the cross-motions, the motion judge entered an order on March 20, 2006. Defendant was ordered to pay the $6,621.14 judgment contained in the SJOD within ninety days of the date of the order, but plaintiff's request for interest on the judgment was denied. Plaintiff's application that defendant contribute to the costs of medical insurance was denied, but her request that defendant pay $5,024.95 of unreimbursed medical expenses was granted.

Plaintiff was ordered to reimburse defendant $3,088 representing overpayment of kindergarten expenses that defendant continued to pay from September 1, 1998 through March 17, 2006, and to repay $6,288 representing overpayment of work-related day care expenses.

Defendant's application for joint custody was denied. His application to vacate the $4,500 support arrearage in the SJOD was granted. The order denied both parties' application for counsel fees.

On appeal, plaintiff argues that the motion judge erred as a matter of law by failing to award interest on the $6,621.14 judgment and by vacating the $4,500 judgment for support arrears. She also contends that she was entitled to interest on the child support arrears and that the motion judge should not have vacated the kindergarten and work-related child care elements of the child support award. In his cross-appeal, defendant argues that the motion judge improperly denied his request for joint legal custody and expanded parenting time.

We commence our discussion with a reminder of the need for findings of fact and conclusions of law. Following a lengthy oral argument, the motion judge did not deliver an oral opinion. The motion judge did not include an oral opinion or a statement of reasons with the March 20, 2006 order. This court, counsel and the litigants are left without any explanation of the various rulings. We recognize that the motion judge has retired but because this matter must be remanded for further proceedings, we remind the judge who receives this case that the findings of fact and conclusions of law are not merely for the benefit of an appellate tribunal but also for the benefit of the litigants. Curtis V. Finneran, 83 N.J. 563, 569-70 (1980); Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006). The failure to explain the various reasons for granting some relief and denying other relief is a fundamental disservice to counsel and the litigants. Curtis, supra, 83 N.J. at 569-70.

As to the merits, plaintiff challenges paragraph 13 of the March 20, 2006 order that vacated the $4500 judgment for support arrears. Following trial, the trial judge entered a judgment of divorce. A month later, the judge made oral findings of fact and conclusions of law and entered the SJOD. The appropriate amount of support was a contested issue at trial. The SJOD modified previously entered pendente lite orders based on updated information regarding defendant's income. The trial judge found that defendant's child support should have been set at a higher amount and calculated that defendant owed $4500 to plaintiff.

Plaintiff contends that vacation of the support arrears is contrary to N.J.S.A. 2A:17-56.23(a), which bars retroactive modification of child support arrears. We agree that the support arrears provision of the SJOD should not have been modified but for different reasons.

Defendant did not appeal from the SJOD. He did not seek to vacate this award until March 2006 when he responded to plaintiff's enforcement motion and filed his motion for custody. The SJOD was a final order. Any party aggrieved by all or some of the provision of the SJOD should have filed a notice of appeal within forty-five days of entry of the SJOD. R. 2:4-1(a). A motion nine years later to reconsider the factual and legal basis of the child support arrears judgment is not the remedy for an award that may have been based on a misapprehension of the facts developed at trial. Defendant presented no other basis to disturb this provision. The requested relief should have been denied. We, therefore, reverse paragraph 13 of the March 20, 2006 order.

Having reinstated the $4500 judgment for child support arrears, plaintiff urges that this judgment should also accrue interest. This issue was not raised in her motion to enforce litigant's rights. The argument is founded on our opinion in Pryce v. Scharff, 384 N.J. Super. 197 (App. Div. 2006) issued one week after entry of the March 20, 2006 order. Plaintiff also urges that the motion judge erred by failing to award interest on the $6621.14 judgment contained in the SJOD. Payment of this judgment was deferred for five years. Plaintiff sought, and the motion judge denied, interest on this judgment.

In Pryce, the precise issue before the court was whether the Probation Division of the court is required to collect the post-judgment interest that unpaid child support obligations carry. Id. at 201. It was conceded that child support judgments bear post-judgment interest. Ibid.; R. 4:42-11(a). Neither the statute that authorizes child support judgments to be treated the same as any other civil money judgment, N.J.S.A. 2A:17-56.7a, nor the court rule, Rule 4:42-11(a), bestows any discretion on the motion judge on the issue of whether post-judgment interest should be awarded on a judgment for child support arrears. Having reinstated the judgment for child support arrears, we also order that the judgment shall bear post-judgment interest.

We also discern no reason why post-judgment interest should not be assessed on the $6621.14 judgment in plaintiff's favor. This judgment is a money judgment. While payment may have been deferred, the ordinary operation of the rules of court contemplate the assessment of post-judgment interest. The motion judge should have granted this request. Therefore, we reverse paragraph 7 of the March 20, 2006 order.

We also reverse and remand for further proceedings defendant's request for joint legal custody and expanded parenting time. Applications to revise custody or parenting time cannot be summarily resolved in the face of conflicting certifications. Peregoy v. Peregoy, 358 N.J. Super. 179, 206 (App. Div. 2003) (citing P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999); Wilke v. Culp, 196 N.J. Super. 487, 500 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982)). Moreover, when the child is of sufficient age, the child should be interviewed by the judge. Ibid.; N.J.S.A. 9:2-4; R. 5:8-6.

The motion judge did not provide any reasons for denying either request. The conflicting certifications, however, presented facts that clearly suggested that designation by defendant as joint legal custodian of his then fifteen year old son should have been carefully examined. Similarly, the judge could not summarily dismiss defendant's request for expanded parenting time of the parties' child based on defendant's failure to obtain therapy nine years ago, particularly when defendant had served as the residential custodian for extended periods of time. The child is now a teenager and has resided with defendant for substantial periods of time. Defendant's application for joint legal custody and expanded parenting time must be remanded for an appropriate hearing and interview with the child.

Plaintiff also urges that the motion judge erred by modifying defendant's child support obligation to the extent that he ordered a credit for the $8 kindergarten contribution and $40 weekly work-related child care contribution for the periods during which the child was not enrolled in kindergarten or plaintiff did not incur work-related child care expenses. She argues that this modification violates N.J.S.A. 2A:17-56.23(a), the prohibition against retroactive child support modifications.

We have recognized that the statutory prohibition against retroactive modification of child support orders is not transgressed when the factual basis for the obligation no longer exists. For example, when a child is emancipated, the obligation to support that child ceases. Modification of a child support order retroactive to the date the obligation to support ceased does not offend the statue. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). Elimination of the kindergarten and work-related child care contributions are similar circumstances. The child was enrolled in kindergarten for only one year. The reason for the extra contribution ceased when he enrolled in first grade. The work-related child care contribution was intended to defray a specific cost. If plaintiff did not incur any work-related child care expenses, defendant had no obligation to make that additional weekly contribution. Elimination of a financial obligation when the factual predicate for the obligation ceases does not offend the terms or spirit of the statute barring anti-retroactive modification of child support awards. Thus, we affirm paragraphs 10, 11 and 12 of the March 20, 2006 order.

The March 20, 2006 order is affirmed in part and reversed in part. We remand for further proceedings consistent with this opinion.


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