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Graulich v. Stochel

May 22, 2008

LAURIE GRAULICH, PLAINTIFF-RESPONDENT,
v.
ROBERT STOCHEL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-559-94H.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 16, 2008

Before Judges Lisa and Lihotz.

Defendant, Robert Stochel, appeals from the denial of his motion to reconsider the June 12, 2007 order (1) denying his motion to vacate a provision in a default judgment order entered on September 8, 2006 and filed on September 13, 2006 awarding plaintiff, Laurie Graulich, more than $21,000 in child support arrears for the period from November 1993 to September 1997, (2) refusing to emancipate the couple's two children retroactive to the dates of the son's eighteenth birthday and the daughter's professional school graduation, and (3) awarding $1930 in counsel fees to plaintiff.

Defendant argues that the trial court repeatedly misconstrued his motion to vacate the default judgment as an untimely motion for reconsideration, and that defendant presented a timely and sufficient basis to vacate the default judgment. He further argues that the judge erred in setting the emancipation date for the children as the date of the filing of defendant's motion, rather than the earlier requested dates. Finally, defendant argues that the judge failed to make adequate factual findings regarding the counsel fee award.

We agree with defendant with regard to the child support arrears and the counsel fee award. We vacate the trial court order and (1) remand for a plenary hearing to determine plaintiff's claim of a child support arrearage, and (2) order that the court reconsider the counsel fee award after conclusion of the remand proceedings and, in ruling upon any fee application, set forth a sufficient statement of findings, giving due consideration to all applicable factors provided by statute and court rule. We affirm the order regarding emancipation.

The parties married in 1983 and divorced in 1993. Two children were born of the marriage, Megan (born July 8, 1986) and Wesley (born November 18, 1988). The divorce judgment incorporated the parties' agreement requiring defendant to pay $479 per month in child support.

In 1999, plaintiff moved for an order to set child support in accordance with the Guidelines and for other relief not relevant in this appeal, which resulted in the entry of an order on August 9, 1999 setting child support at $225 per week. In 2003, the Middlesex County Board of Social Services filed a motion on plaintiff's behalf for an upward modification of child support and for a determination of the amount of arrears, if any. Significantly, in the 1999 and 2003 motions, plaintiff made no mention of any child support arrears.

On August 2, 2006, plaintiff filed a pro se motion seeking enforcement of defendant's agreed-upon contribution to educational expenses for the children, reimbursement of medical expenses, adjustment of visitation rights, and enforcement of child support at the rate provided in the divorce judgment "from 11/93 to 9/97 approx amount owed $21,821." In her supporting certification, plaintiff set forth the basis for the other forms of relief she sought, but made no mention of not having received child support during the time alleged in her notice of motion.

Plaintiff served defendant by regular and certified mail. Defendant later admitted that he did not pick up the certified mailing at the post office, explaining that he knew it was from his former wife, he had no reason to believe court papers were involved, and he thought it was another of her alleged harassing communications. He later denied ever receiving the ordinary mailing. He did not respond, and the court entered an order granting the relief requested in plaintiff's unopposed motion, including the obligation to pay child support arrears for the time requested.

The order was entered on September 8, 2006, filed on September 13, 2006, and a copy received by defendant on September 16, 2006. Defendant promptly engaged the services of counsel on September 20, 2006 to address the order.

Before defendant's retained counsel filed an application with the court, plaintiff filed a pro se motion on October 17, 2006 to enforce litigant's rights with respect to the provisions of the September 8, 2006 order pertaining to educational and medical expenses. She mentioned nothing in her moving papers about the child support arrears. Through counsel, defendant cross-moved for an order "vacating" the prior order. In his certification, defendant referred to prior court orders reflecting that no arrears existed and stated: "That is because there were no arrears! . . . I was completely current and paid up-to-date in my child support payments."

The cross-motions came before the court on November 17, 2006. The parties settled many of the issues, which are not relevant on appeal, and placed the terms of settlement on the record. However, the parties could not settle the dispute over the child support arrears. The judge asked the pro se plaintiff to explain her long delay in pursuing the arrears. She said she approached defendant about the deficiency in 1997. He reacted in a hostile manner, but then began paying support after September 1997. She further stated that she believed she had lost the right to seek arrears in 1999, and that her attorney at that time did not ask about any arrears. There was some colloquy, but no clear decision on the issue. At the conclusion of the hearing, the court clerk questioned the judge ...


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