February 15, 2008
BRENDA BEAUFORD HOPSON, PLAINTIFF-RESPONDENT,
STACEY L. HOPSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-014027-90.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 7, 2008
Before Judges Graves and Alvarez.
Defendant, Stacey L. Hopson, appeals from a July 28, 2006 order that denied his motion for reconsideration of an earlier order dated May 12, 2006, directing that he reimburse plaintiff, Brenda Beauford Hopson, for college expenses she incurred for the parties' son. The order also required defendant to provide proof of medical insurance covering his son, to reimburse plaintiff for his son's uninsured medical expenses, and to pay a portion of plaintiff's counsel fees. Both decisions were made on the papers submitted without the benefit of oral argument. We reverse in part and remand for further proceedings.
When the parties divorced on February 14, 1991, they entered into a property settlement agreement (PSA). The PSA required each parent to contribute to their child's college education "in an amount that is proportionate to their income at the time the child commences college." Defendant claims he should not be compelled to contribute to his son's educational expenses because he was not consulted about the selection of the college his son attended and was not actively involved with his son during the college years. As found by the motion judge, however, he was well aware of his son's ongoing educational needs and maintained a relationship with him during that time. Additionally, while their child was in school, plaintiff notified defendant in writing, as they were apparently not on speaking terms, of the college expenses on at least an annual basis. Defendant continued to pay weekly child support during the son's college years.
On May 12, 2006, the motion judge found defendant in violation of the PSA, and entered an order enforcing litigant's rights as to college contributions. Although defendant contends he did not receive plaintiff's moving papers, he filed a pro se letter in opposition to the enforcement motion. The May 12, 2006 order required him to pay, retroactively, sixty percent of the college expenses incurred over five years, or $36,113.72, fifty-seven percent of unreimbursed medical expenses in the amount of $475, and a $2012.50 counsel fee award. Defendant was also required to obtain medical insurance for their son and to obtain a life insurance policy naming him as a beneficiary.
Defendant retained counsel and on June 5, 2006, filed a notice of motion seeking reconsideration of the May 12, 2006 order. While defendant's notice of motion for reconsideration did not specifically request an offset for child support payments he made while his son was attending college, in his reply to plaintiff's opposition he certified: "I paid nearly $40,000 in child support to the plaintiff during the past five (5) years when our son was not even living at home. Therefore, at least some of this money should be credited toward any obligation I might have toward college expenses."
The motion for reconsideration, like the initial application, was decided without the benefit of oral argument, even though it was requested by both parties. The motion judge explained:
I did not take oral argument on the notice of motion to reconsider. The reason I did not is because the motion is based primarily on an analysis of the bills and the proofs of payment that were submitted on the original motion, and I was able to go through all of the bills and all of the proofs of payment quite readily without having to burden the record further with oral argument . . . so I had no questions and I saw no reason, and I did not believe I would be assisted by holding oral argument.
On July 28, 2006, the motion judge entered an order denying defendant's request for reconsideration. The judge's oral statement of reasons included a thorough and comprehensive review of the college expenses and a proportionate allocation based on each party's income. Defendant, prior to his voluntary retirement, was making at least $70,000 a year, while plaintiff earned $50,000, a sixty percent/forty percent split. Accordingly, the judge calculated that the total cost of the college education was $60,189.54 and that sixty percent of the total cost was $36,113.72. The judge also ordered anew that defendant pay unreimbursed medical expenses of $475, that he maintain life insurance as called for in the PSA, and that he pay $2012.50 by way of attorney's fees. The judge also found, because defendant submitted a pro se response, that he had been adequately served with the initial moving papers seeking to enforce litigant's rights. On the other hand, the court did not address defendant's request for an offset based on the "nearly $40,000" of child support defendant allegedly paid to plaintiff while the parties' son was attending college.
On appeal, defendant contends he is entitled to a credit or offset for the "nearly $40,000" he paid in child support during the time the parties' son was in school. As defendant correctly indicates, "[t]his argument was never addressed at all, and therefore it was neither accepted nor rejected by the [motion] [j]udge."
Rule 5:5-4(a) states that "in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions." The rule has been interpreted to mean that oral argument is mandated "when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (citing Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997)). By refusing to conduct oral argument the motion court deprived the parties of the "opportunity to present their case fully." Ibid. "[W]hile the grant of a request for oral argument of the motion is discretionary with the court, there is a strong presumption favoring argument of motions other than calendar matters and routine discovery applications." Pressler, Current N.J. Court Rules, comment 1.1 on R. 5:5-4 (2007). This court has noted for years that "based on the matters which have . . . found their way to our appeal and motion calendars, . . . the presumption is almost always against oral argument, and we perceive a growing tendency of matrimonial judges to decide all manner of questions . . . on the papers." Fusco v. Fusco, 186 N.J. Super. 321, 328 (App. Div. 1982). While ultimately remanding for a plenary hearing, the court in Fusco stated that oral argument may disposed of "when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision." Id. at 329. Had oral argument been granted in this case, the motion judge would have addressed whether defendant is entitled to any offset for support, and if so, to what extent. As it stands, the record does not reveal if he even considered the issue.
Accordingly, the matter will be remanded. Some additional comments are appropriate. As previously stated, we do not disturb the motion judge's detailed and thorough findings as to the actual amount of college expenses. We further find no error in his conclusion that defendant had been properly served with the moving papers or that absent medical proofs, defendant's early retirement was essentially a voluntary reduction in income. His imputation of income to defendant at the $70,000 range is therefore appropriate. See generally Silvan v. Sylvan, 267 N.J. Super. 578 (App. Div. 1993); Lissner v. Marburger, 394 N.J. Super. 393 (Ch. Div. 2007).
Similarly, there is no error as to the attorney fee award. Defendant was "in a slightly better position to bear the cost." Plaintiff was forced "to come to court to enforce the property settlement." The "results obtained" favored plaintiff. As the motion judge carefully considered the factors enumerated in R. 5:3-5(c), and as his findings were not an abuse of discretion, this court will not disturb them. Chestone v. Chestone, 285 N.J. Super. 453, 468 (App. Div. 1995).
Oral argument will therefore be conducted as to whether defendant is entitled to any offset for the $40,000 in child support allegedly paid while the son was in college. Should a substantial fact question develop on the issue, the motion court shall require appropriate discovery and schedule a plenary hearing in due course.
Defendant also contends that if the matter is remanded, it should be addressed by another judge because he has "already resolved conflicting issues of fact in favor of plaintiff." The authority to require the matter to be revisited by another judge should be used in limited circumstances. See generally Carmichael v. Bryan, 310 N.J. Super. 34, 49 (App. Div. 1998); see also Pressler, Current N.J. Court Rules, comment 4 on R. 1:12-1 (2008). The clear intention "of the Legislature and the Supreme Court [is] to allow a judge to continue to participate in a case when any opinion which he has rendered with respect to a matter in controversy was expressed in the course of proceedings regarding that same controversy." Matthews v. Deane, 196 N.J. Super. 441, 444 (Ch. Div. 1984). "Absent a showing of bias or prejudice, the participation of a judge in previous proceedings in the case before him is not a ground for disqualification. And the fact that a judgment resulting from previous proceedings is reversed on appeal is likewise not a sufficient ground for disqualification." State v. Walker, 33 N.J. 580, 591 (1960), cert. denied, 371 U.S. 850, 83 S.Ct. 89, 9 L.Ed. 2d 86 (1962) (citations omitted). Defendant has not established a showing of bias or prejudice. His concern is merely that the motion judge previously rendered an opinion with which he disagrees. That is not a basis for recusal.
Reversed in part and remanded for further proceedings.
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