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Schwarz v. Jester

January 8, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1680-96.

Per curiam.


Submitted December 17, 2007

Before Judges Parrillo and Graves.

Defendant Peter Jester appeals from a December 6, 2006 order of the Family Part increasing his child support obligation for his son from $100 to $173 per week, and from the January 23, 2007 order denying his motion for reconsideration. Plaintiff Doreen Schwarz has not filed a brief in opposition. For the following reasons, we reverse and remand for a plenary hearing.

As best as can be determined from the scant record in this case, the parties' son was born on September 15, 1996 and by order of January 9, 1997, defendant's child support obligation was fixed at $100 per week, or $430 monthly, effective on the date of the child's birth. According to defendant, at that time he was earning $45,644 annually. Defendant has been employed by United Water in Toms River since August 6, 1991, and by the United States military since February 4, 1983. He was called to active military status on July 24, 2005 and served until his discharge on February 7, 2007. He returned to work at United Water on March 11, 2007.

Ten years having elapsed since the initial order, on November 15, 2006, defendant was notified of a hearing for modification of child support for his son. On the return date, a hearing officer fixed defendant's child support obligation at $196 per week. Defendant appealed and the matter was heard by a Family Part judge on December 6, 2006. Despite the fact that defendant's annual income for 2006 was reported on both his W-2 wage and tax statement and federal individual income tax return 1040 as $43,338, the judge attributed to defendant gross taxable income of $71,481.73 as of November 15, 2006, or $1554 weekly, based on Defense Finance and Accounting Service Military Leave and Earnings Statement indicating year-to-date "entitlement" of $71,481.73 as of November 15, 2006. The judge also imputed $400 in gross taxable weekly income to plaintiff. Based on their respective percentage shares of income (20.47% for plaintiff and 79.53% for defendant), the judge increased defendant's weekly child support obligation to $173.

Defendant immediately moved for reconsideration, arguing that the judge erred in attributing to him "bonus" income that was neither earned nor "received." He certified that his "[i]ncome was elevated due to a portion of unpaid entitlement dating back to July 24, 2005, which included pay that was not received and was added to year[-]to[-]date portion of leave earnings statement." In denying the motion, the judge noted simply:

At the prior hearing, defendant provided the Court with his pay stub establishing that his annual income totaled $71,481.73 as of November 15, 2006. Further, defendant testified that he received a bonus, which is as he explained, why his year-to-date income was higher than the total of his weekly reported income as set forth on his pay stub. Furthermore, the Court spent an inordinately large amount of time reviewing his income and pay stubs.

This appeal follows.*fn1

While we ordinarily defer to the factual findings of a Family Part judge, those findings are only "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Here, our review of the record compels us to conclude that the evidence, both testimonial and documentary, is at best conflicting and therefore deserving of resolution at a plenary hearing.

Of course, "[a] hearing is not required or warranted in every contested proceeding for the modification of a judgment or order." Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998). Rather, a hearing is only required "where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful." Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976) (citations omitted); see also Lepis v. Lepis, 83 N.J. 139, 159 (1980).

"[I]n a variety of contexts, courts have opined on the impermissibly of deciding contested issues of fact on the basis of conflicting affidavits or certifications alone." State v. Pyatt, 316 N.J. Super. 46, 50 (App. Div. 1998) (citations omitted), certif. denied, 158 N.J. 72 (1999). In particular, where the papers filed raise issues of fact or require credibility determinations, relief cannot be granted or denied absent a plenary hearing. See Whitfield v. Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998); Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982).

Here, defendant's certification and supporting documents plainly raise a disputed issue of material fact as to his actual income in 2006. Yet, there has been no clear resolution of the conflict below. The documentary proof remains irreconcilable and the motion judge's choice of one version over another appears without reason or explanation. Moreover, the judge relied on testimony of a "bonus" that appears nowhere in the record of the December 6, 2006 hearing and is, in fact, directly refuted by defendant's certification in support of his motion for reconsideration, which was rejected also without benefit of full reason or explanation. This is all the more troubling given the ...

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