On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1587-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...