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Dunn v. Dunn


February 11, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1587-04.

Per curiam.


Submitted December 19, 2007

Before Judges Axelrad and Sapp-Peterson.

In this post-judgment divorce action, defendant William M. Dunn appeals from the September 23, 2006 order*fn1 denying his application to modify child support, and from the October 27, 2006 order denying his motion for reconsideration. We affirm.

Defendant and plaintiff Valerie A. Dunn were divorced in March 2004. One child was born of the marriage. The parties entered into a Property Settlement Agreement (PSA) that apparently was incorporated into the Final Judgment of Divorce (JOD).*fn2 The PSA addressed child support and alimony. Under Article II: SUPPORT AND MAINTENANCE, defendant agreed to pay weekly child support in the amount of $140. The child support obligation was based upon each party's annual income of $50,000. Additionally, the parties also agreed to equally share the cost of their son's attendance at the Kumon Math and Reading Tutoring Program, with defendant reimbursing plaintiff his proportionate monthly share upon plaintiff's presentation of an invoice or monthly billing statement. Further, Paragraph 2.1c of Article II provided:

The parties acknowledge that the Wife is a school teacher and is not paid during the months of July and August each year, as such, the Husband agrees to pay the Wife the sum of $1,650 to be used for the Wife's August rental payment each year, subject to the following conditions:

1. In the event the Wife moves from her present residence of T-18 Farmhouse Lane, Morristown, New Jersey 07960, the Husband is no longer obligated to make the August rental payment.

2. Upon [K.S.D.] reaching the age of eighteen years old, Husband will no longer be obligated to make the August rental payment.

3. Should the rent be increased at T-18 Farmhouse Lane, Morristown, New Jersey 07960, the Husband will only be obligated to pay the August rental payment up to the sum of $1,650.

4. The Husband shall make the August rental payment no later than August 1st of each year while he is obligated to do so. The husband may prepay the yearly August rental payment to the Wife in installments preceding August 1st of each year that he is obligated, however such installment payments must be delineated as payments toward the August rental payment.

In August 2006, plaintiff filed an order to show cause to enforce litigant's rights in which she claimed that defendant had failed to pay the August 2006 rent and his share of the Kumon Program tuition in accordance with the PSA. Plaintiff also sought an order directing defendant to become current on his child support obligations within thirty days. The court did not grant oral argument, noting that the issues implicated in the motion had been resolved by the PSA. In granting plaintiff's motion in its entirety, the court reasoned, "Defendant has clear obligations to support [the] parties' 9-year-old son, per PSA, signed 3/24/05. Defendant has not established changed circumstances of his income and has not demonstrated efforts to bring income back up."

Thereafter, defendant moved for reconsideration, arguing that he had demonstrated changed circumstances that warranted relief from the requirement that he pay plaintiff's August rent because (1) his former spouse remarried in 2004, (2) she had boarders in the former marital home from whom she had been receiving rental income for the past three years, (3) his business had failed, and (4) at age sixty, he was having "difficulty finding meaningful work." The court, without entertaining oral argument, denied the motion noting:

[Defendant] previously moved to decrease spousal [and] child support payments. The application was denied in orders filed 9/23/06 for reasons stated in those orders, incorporated here by reference. The only reason [defendant] now offers is that the court did not hear oral argument. The court explained why it did not hear oral argument in the orders filed 9/23/06. This motion does not meet the standards of R. 4:49-2 because defendant does not state "[t]he matters or controlling decisions which [he] believes the court has overlooked or as to which it has erred." The court did not hear oral argument on this motion for reconsideration because it falls so far short of meeting the standards set forth in R. 4:49-2.

On appeal, defendant claims that his changed circumstances are cause for reversal of the previous rulings. Plaintiff responds that the payment of the August rent, which annually is part of the time each year that, as a teacher, she does not receive a paycheck (July 1 to September 15), was "agreed upon by both parties and put in place in order to compensate for the reduced child support that was agreed upon."

To begin, we first determine the nature of the August rental payment, that is, whether the parties intended that it be treated as child support or alimony. Since the PSA clearly states that plaintiff irrevocably "waives any and all rights to alimony and/or support from the Husband now and in the future[,]" the provision for payment of the August rent is included in the child support section of the PSA, and the obligation to make the payment terminates once the parties' son reaches eighteen, we are persuaded, as plaintiff contends, that the parties intended this payment to be considered as additional child support.

Child support obligations are subject to modification based on changed circumstances, regardless of whether the obligations were established by the court or by the agreement of the parties. Lepis v. Lepis, 83 N.J. 139, 146 (1980); Dolce v. Dolce, 383 N.J. Super. 11, 18-19 (App. Div. 2006). To determine whether there has been a change in circumstances that warrants a reduction in support, a comparison must be made between the parties' "financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations." Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). The "moving party has the burden of establishing the circumstances that warrant the change." Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

Once the movant establishes a prima facie case of changed circumstances, the judge must examine the parties' financial situation and, if warranted, conduct a hearing to resolve disputed material facts. Lepis, supra, 83 N.J. at 157-59. However, not every motion for a reduction in the support obligation requires a hearing. Rather, the party "must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary." Id. at 159.

In this case, the motion judge was satisfied that defendant failed to meet his threshold burden of demonstrating a prima facie case of changed circumstances and therefore was not entitled to relief. We observe, for instance, there does not appear to have been a Case Information Statement (CIS) that accompanied his opposition to the plaintiff's motion seeking to enforce litigant's rights nor with his motion for reconsideration. Rule 5:5-4 requires that "[w]hen a motion is brought for the modification of an order or judgment for alimony or child support, the pleading filed in support of the motion shall have appended to it a copy of the prior Case Information Statement." The CIS must include as an attachment "a full and complete copy of last year's Federal and State Income Tax Returns . . . W-2 statements, 1099's, Schedule C's, etc., to show total income plus a copy of the most recently filed Tax Returns." Family Part Case Information Statement, Pressler, Current N.J. Court Rules, Appendix V to R. 5:5-4 at 2270-71 (2008). Moreover, based upon the motion judge's finding that defendant "has not demonstrated efforts to bring [his] income back up[,]" defendant also apparently failed to document his efforts to obtain employment.

We are satisfied that given the woefully inadequate record before the court, the motion judge properly denied the relief defendant sought in his opposition to plaintiff's motion. Likewise, the court also properly denied defendant's motion for reconsideration since the sole basis for reconsideration was the court's failure to entertain oral argument on the original motion.

Rule 5:5-4, consistent with its counterpart, Rule 1:6-2, provides that "the court shall ordinarily grant . . . oral argument on substantive and non-routine discovery motions[.]" It is unclear whether either party sought oral argument in the first motion, but given the basis of defendant's motion for reconsideration, we assume that defendant either requested oral argument or believed that oral argument would be afforded even without a request. While the better course would have been to entertain oral argument in connection with both motions, given the significant deficiencies in defendant's proofs, the denial of both motions without oral argument was not an abuse of discretion. See Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (holding denial of oral argument is an abuse of discretion where significant substantive issues are implicated and argument is requested).


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