July 22, 2008
CAROL HERNANDEZ, PLAINTIFF-APPELLANT,
RONALD HERNANDEZ, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-586-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 2, 2008
Before Judges Wefing, R. B. Coleman and Lyons.
Plaintiff ex-wife appeals numerous provisions of three post-judgment matrimonial orders, asserting that the trial judge did not address some issues and erred with respect to others.
After reviewing plaintiff's contentions, the record, defendant ex-husband's arguments, and the applicable law, we affirm.
The relevant facts and procedural history are as follows. The parties were married in 1977 and had two children, J.H., born August 23, 1981, and S.H., born May 14, 1988. In March 2003, a final restraining order was entered barring defendant from the marital home.
The trial judge conducted a divorce trial on November 12, 2003. The parties were divorced pursuant to a final judgment dated February 20, 2004, which was entered following a December 18, 2003, written opinion.
In the final judgment of divorce, the trial judge emancipated J.H. and granted joint legal custody of S.H., with primary residential custody to plaintiff. The trial judge ordered defendant to pay child support of $152 per week, and ordered him to be responsible for 54.11% of S.H.'s unreimbursed medical expenses, after the first $250 had been paid by plaintiff. Plaintiff, who had been a homemaker, was granted alimony of $165 per week.
The trial judge allocated the debts and obligations of the parties, and divided the home, the pension, the household items, and the parties' savings accounts equally between the parties. Defendant was ordered to comply with previous orders requiring defendant to reimburse plaintiff for insurance, one half of a homestead rebate, and mortgage payments. Defendant was also ordered to distribute half of a savings account to plaintiff.
The trial judge valued the marital residence and gave plaintiff thirty days from the date of the judgment to exercise her right to buy it. Plaintiff was allowed to use her share of equity in defendant's pensions and annuities as a credit to purchase the home. The judgment gave defendant the opportunity to purchase the home if plaintiff declined to do so. The trial judge ordered defendant to pay half of the mortgage and real estate taxes until the transfer to plaintiff was completed or the house sold to a third party.
The trial judge further ordered that the plaintiff's pension annuity be valuated for the time period from the date of the parties' marriage to the date of the filing of the complaint and distributed by means of a Qualified Domestic Relations Order (QDRO).
Plaintiff appealed from portions of the final judgment of divorce. We affirmed the trial judge's order in an opinion dated January 21, 2005. Hernandez v. Hernandez, No. A-4163-03T2 (App. Div. Jan. 21, 2005).
In March 2005, defendant filed a motion to enforce litigant's rights and for other relief. The main thrust of his motion was to permit defendant to purchase plaintiff's interest in the former marital home, as plaintiff still had not purchased the home. Plaintiff opposed the motion. Defendant filed a reply certification, and plaintiff then filed a motion to oppose defendant's attorney-fee request.
After oral argument on April 29, 2005, the trial judge signed an order of the same date. Among other things, the trial judge revoked either party's right to buy the marital home and ordered that it be listed for sale immediately. The trial judge ordered that a QDRO be prepared for the purpose of rolling over plaintiff's interest in defendant's pensions and annuities, but that the disbursal of that sum be deferred until thirty days after the closing on the house, in order to determine what credits defendant might be entitled to, if any. The trial judge also made numerous other specific rulings.
On May 19, 2005, plaintiff filed a motion for reconsideration. The trial judge placed her rulings on the record and signed an order dated June 24, 2005, denying plaintiff's relief.
On July 5, 2005, the trial judge signed a consent order transferring residential custody of S.H. to defendant, and terminating defendant's child support obligation.
On July 9, 2005, plaintiff filed a timely notice of appeal from the orders of April 29 and June 24, 2005. She requested a stay pending appeal, but that was denied.
In August 2005, plaintiff filed a motion to enforce litigant's rights, seeking numerous items of relief. Without oral argument, the trial judge put her reasons for her decision on the record on September 23, 2005, and signed an order that same day.
On October 7, 2005, plaintiff moved to amend her appeal to include the order of September 23, 2005. Her request was granted, despite defendant's opposition.
On October 14, 2005, plaintiff filed a bankruptcy petition. We were informed at oral argument that, since the filing of this appeal, the marital home had been sold and that the parties' son, S.H., has joined the Air Force.
On appeal, plaintiff presents a myriad of issues for our consideration:
PLAINTIFF IS NOT IN THE SAME STANDARD OF LIVING AS DURING THE MARRIAGE (plaintiff's brief point A).
THE TRIAL COURT DID NOT EQUITABLY DISTRIBUTE THE MARITAL PROPERTY (plaintiff's brief point B).
THE TRIAL COURT DID NOT ADDRESS DIRECT REIMBURSEMENT OF MEDICAL PAYMENT TO PLAINTIFF FROM UNION (plaintiff's brief point C).
THE TRIAL COURT DENIED PLAINTIFF RETURN OF HER POSSESSIONS (plaintiff's brief point D).
THE TRIAL COURT DENIED PLAINTIFF DIRECT DEPOSIT OF ALIMONY PAYMENTS (plaintiff's brief point E).
THE TRIAL COURT DENIED COUNSELING FOR DEFENDANT AND CHILDREN (plaintiff's brief point F).
THE TRIAL COURT DID NOT ADDRESS COLLEGE EXPENSES FOR S.H. AND DENIED COLLEGE EXPENSES FOR J.H. (plaintiff's brief point G).
THE TRIAL COURT DENIED PLAINTIFF A VEHICLE (plaintiff's brief point H).
THE TRIAL COURT DID NOT ADDRESS REIMBURSEMENT TO PLAINTIFF'S BROTHER (plaintiff's brief point I).
THE TRIAL COURT DID NOT ADDRESS DEFENDANT NOT OBTAINING LIFE INSURANCE FOR HIS SON AS PER THE FINAL JUDGMENT (plaintiff's brief point J).
TRIAL COURT JUDGE ERRED IN DEFERRING QDROS (plaintiff's brief point K).
THE TRIAL COURT ERRED IN REFUSING REIMBURSEMENT FOR HOME REPAIRS (plaintiff's brief point L).
THE TRIAL COURT ERRED IN NOT CONSIDERING J.H.'S MEDICAL CONDITION (plaintiff's brief point M).
THE TRIAL COURT ERRED BY NOT ADDRESSING THE ISSUE OF THE DEPOSITED GOVERNMENT CHECK (plaintiff's brief point N).
THE TRIAL COURT ERRED IN ASSIGNING DEFENDANT'S ATTORNEY FEES TO PLAINTIFF AND NOT GIVING PLAINTIFF REASONABLE ATTORNEY'S FEES (plaintiff's brief point O).
THE TRIAL COURT ERRED IN NOT AWARDING SUPPORT ARREARAGES, MEDICAL ARREARAGES AND MORTGAGE ARREARAGES TO PLAINTIFF (plaintiff's brief point P).
THE TRIAL COURT ERRED IN NOT APPLYING THE DOMESTIC VIOLENCE ACT IN THIS CASE (plaintiff's brief point Q).
STANDARD OF LIVING
Plaintiff's brief point heading "A" states that "[p]laintiff is not in the same standard of living as during the marriage." She claims that "[defendant] earned six times what she did during the marriage" and that the alimony awarded was only one-ninth of defendant's salary.*fn1 Plaintiff filed a motion in August 2005 to increase her alimony. Her certification stated that she suffered a change of circumstances because S.H. moved in with defendant and she consequently no longer received child support. She claimed that her $165 per week in alimony "does not help cover the bills." The trial judge denied her motion, stating that she "failed to make a prima facie case of changed circumstances in accordance with Lepis v. Lepis," 83 N.J. 139 (1980).
On appeal, plaintiff does not state why, factually or legally, this ruling was wrong. Plaintiff provides no authority for the proposition that when a supporting parent's child support is reduced or eliminated, that constitutes changed circumstances for the purposes of alimony. A reduction in child support standing alone does not constitute changed circumstances for alimony purposes. Cf. Koelble v. Koelble, 261 N.J. Super. 190, 192-194 (App. Div. 1992).
Plaintiff earlier appealed the initial alimony award, and that appeal was denied. There is no support for finding that the termination of child support constitutes changed circumstances for alimony purposes and, therefore, we affirm the trial judge's ruling on this issue.
In plaintiff's brief point B, she argues that because defendant concealed assets from her, the court did not equitably distribute the marital property. Defendant responds that plaintiff has already litigated this issue, and it was denied on appeal.
In August 2005, plaintiff made another motion claiming that defendant "did not bring forth all his pensions and IRS's [sic] and annuities, checking and savings accounts and disbursements from his union. That is fraud." She also claimed that he "lied about his back pay claims," and that he did "not bring forth all the marital assets that should have been considered in equitable distribution. This is fraud." The trial judge did not mention plaintiff's claims in her oral opinion and in her order, mentioned them only by implication, saying any claims not addressed were denied.
On appeal, plaintiff argues that the "judgment" (she does not say which one, but we assume she means the final judgment of divorce) should be vacated under Rule 4:50-1 on the basis of fraud, mistake and misrepresentation. She argues that defendant has assets that he did not reveal, including union pensions, bank accounts, three lawsuits that included back-pay claims, a coin collection, and a family vehicle. With regard to the lawsuits, plaintiff claims that defendant lied during the divorce trial when he stated that the claims arose prior to the marriage. She also claims that defendant had "payouts from his union that Plaintiff did not enjoy."
Plaintiff did not specifically move for relief in the trial court under Rule 4:50-1, but she did claim "fraud." The trial judge did not analyze her claims under Rule 4:50-1, but if she had, plaintiff was not entitled to relief.
Under Rule 4:50-2, a motion pursuant to Rule 4:50-1 shall be made "within a reasonable time, and for reasons (a), (b) and (c) [fraud] of Rule 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken." Plaintiff filed for relief in August 2005. The judgment of divorce was entered on February 20, 2004. Therefore, plaintiff's request was out of time.
Moreover, plaintiff's untimely claims fail to show that defendant withheld any information from her regarding his pensions and annuities, his lawsuits or his other assets, or that she is entitled to relief from the judgment of divorce under the catch-all provision of subsection (f) of Rule 4:50-1, "any other reason justifying relief from the operation of the judgment or order."
DIRECT REIMBURSEMENT OF MEDICAL PAYMENT
In her brief point C, plaintiff claims that the trial judge did not address "direct reimbursement of medical payment to Plaintiff from Union." She argues that under "Senate Bill 2346," if one parent provides health insurance, the other parent can submit claims directly to the health insurance carrier and obtain direct reimbursement, but, in defendant's union, it only pays the member, even though plaintiff has made the payment to the health care provider. Defendant, in his one sentence reply, states that this issue is "non-addressable due to the fact that Medical services provided commence with a co-pay upon each appointment."
Once again, plaintiff does not state her case clearly and fails to note when she requested this relief. It appears that in her August 2005 motion, she sought this relief when she certified, "Local Union 28 only reimburses the member for medical cash out. I need an order for the union to reimburse me directly." While the trial judge did not address this request directly in the September 23, 2005, order, the order did state: "Any other claims for relief not expressly addressed in the Court's Order are denied without prejudice."
Further, it is not clear what plaintiff was seeking from the trial court. Her oldest child, J.H., was declared emancipated by the court, and S.H.'s custody was transferred to defendant in July 2005. Defendant seems to believe that plaintiff is referring to the co-payments that she might have had to pay if she took S.H. for medical care. Those expenses, says defendant, are not reimbursable through his employer.
In her reply certification in the trial court application, plaintiff seemed to be claiming that she had to take S.H. to various medical appointments because defendant did not. But she does not make clear what exact expenses were incurred or when they were incurred which, given the change of custody, might implicate whether defendant was responsible for the bill. As the custody change occurred in July and this application was filed in early August, it would seem that plaintiff is addressing past charges incurred while S.H. lived with her. The trial judge addressed the issue of defendant's arrears with regard to these expenses, and ordered him to pay plaintiff. In light of these facts, the gravamen of plaintiff's complaint on appeal is indecipherable to us. Therefore, given that plaintiff has not clearly briefed this issue beyond her conclusionary statements, we will not consider it. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983).
RETURN OF PLAINTIFF'S POSSESSIONS
In her brief point D, plaintiff contends that defendant took her possessions over a two-year span and that she wants them back. She claims she has a witness who can testify that defendant took her personal possessions. Defendant maintains that plaintiff's "own proofs of Storage Receipts proves that she was the party who concealed joint Marital Property. Allegations to the contrary are unfounded, and lack any substance."
The trial judge did not specifically address plaintiff's request for her personal possessions, but said that any other claim for relief not specifically addressed in the court's order was denied. That would include this claim.
Although plaintiff claimed she had evidence that defendant took her personal possessions, she did not present any. She stated Officer Messler of the Helmetta Police Department had knowledge, yet she did not present an affidavit from him. Nor did she submit the "viewable" evidence she claimed to have. In the absence of any proof to support her claim, we find that the trial judge had no choice but to deny her motion.
DIRECT DEPOSIT OF ALIMONY CHECKS
In her brief point E, plaintiff claims that the judge erred in denying her request to have her alimony checks directly deposited into her account. She requested this relief in her August 2005 motion, stating: "Since defendant is not on time with the alimony, and has missed payments and is in arrears, I request direct deposit so there is verification of when he gives the checks to me." The trial judge denied the motion "based upon the Final Restraining Order."
Plaintiff argues on appeal that she "does not know what that means" and that she wants direct deposit because: 1) sending the checks through an attorney increases her fees; and 2) there is no record of payments that are in arrears.
While the trial judge did deny plaintiff's request based on the restraining order, which prohibited defendant from any "oral, written, personal or other" form of contact or communication with plaintiff, plaintiff fails to note the rest of the judge's ruling. The judge ruled: "Upon submission of confidential litigant information sheets for both parties, either party may submit an amended order requesting support payments to be payable through the New Jersey Family Support payment center and submit such order for the Court's review and signature." This provision gave plaintiff effectively the relief that she sought and would eliminate the problems she mentions with the current payment situation. It is up to plaintiff to take advantage of the opportunity. There is no basis to reverse the trial judge's decision on this point.
In her brief point F, plaintiff contends that the trial judge erred in denying her request that defendant and the children be ordered into counseling at defendant's expense, because the children are having "difficulties" and "the family needs to heal." Defendant maintains that the issue of counseling "is non-addressable and the product of plaintiff[']s animosity towards all family members excepting, of course, herself."
In her August 2005 motion, plaintiff stated that her daughter, her son, and defendant needed family counseling because defendant "abandoned my daughter," and J.H. felt abandoned by her brother. Plaintiff argues that defendant should pay for the counseling "as per the Domestic Violence Act," but does not elaborate.
The trial judge denied the motion, because J.H. was emancipated and S.H. was in defendant's physical custody. S.H. is now serving in the Air Force.
Plaintiff gives no authority to support the notion that a court should order family counseling for an emancipated child of divorced parents. Further, she gave no evidence, other than her own opinion, that S.H. needed counseling. We find this argument to be therefore without merit and now moot. R. 2:11-3(e)(1)(E).
In her brief point G, plaintiff contends that the trial court "did not address college expenses for S.H. and denied college expenses for J.H." Her argument is that J.H. should be considered unempancipated and allowed to go to college at defendant's expense and that S.H. deserves to further his education.
The final judgment of divorce addressed S.H.'s attendance at college, saying that should S.H. attend college, the parties had to contribute to the cost of his education (after financial aid) "based upon their respective income [sic] and assets at the time." Plaintiff does not point to any post-judgment motion by her concerning payment of S.H.'s college expenses. The issue was already addressed and resolved, and there was no subsequent development or application for us to resolve regarding S.H. In addition, S.H. is serving in the Air Force, so the issue is presently moot.
The final judgment of divorce did not address college expenses for J.H., as she was declared emancipated. Plaintiff does not point to any application she made post-judgment to address a potential change in J.H.'s status. Therefore, there is nothing for us to resolve with regard to J.H., either.
In her brief point H, plaintiff argues that the trial judge erred in denying her a vehicle. She claims that "defendant did not give equitable distribution of the vehicle he took with him" and he "denied [sic] a court order to maintain a vehicle for" her. Defendant states that the issue of a vehicle was addressed pre-trial, but "neglected" during the divorce trial and, therefore, does not survive post-trial.
Plaintiff does not cite to where she addressed this issue to the trial court, and there is no motion or order regarding a vehicle. However, in her proposed form of order for the August 2005 motion, she wrote "Defendant to replace vehicle as per Judge Pullen's order of 10/5/01." Then, in her reply certification, she stated that defendant defied Judge Pullen's pendente lite order regarding the vehicle, which caused her "irreparable harm" as she explained in her motion. But she does not provide Judge Pullen's order, nor does she explain in what motion she explained her harm.
Generally, "provisions of a pendente lite order do not survive the entry of a judgment of divorce unless expressly preserved in it or reduced to judgment prior to entry of final judgment." Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995). As plaintiff did not provide any proof that Judge Pullen's order was reduced to final judgment, and the final judgment reveals no provision about a vehicle, it appears that plaintiff does not have a legal claim to enforce regarding a vehicle.
REIMBURSEMENT OF LOANS
In her brief point I, plaintiff argues that the court did not address reimbursement of money she claims she was forced to borrow from her brother as a consequence of defendant's non-support of her. She claims that she submitted evidence of the debt, but the judge did not address the issue. Defendant maintains that the debt issue is "non-addressable" because it was contained in plaintiff's bankruptcy petition.
In her August 2005 motion, plaintiff stated, "I have documentation of my brother's loans to me to sustain my family because defendant did not." This is not a request for relief; it is a statement. As plaintiff sought relief in her motion for arrears of alimony and child support and an increase in alimony in the motion, this statement could be interpreted as support for her assertion that defendant was not providing enough money for her to live on. She did, however, seek in her proposed form of order for "defendant to make restitution for me having to borrow large sums from my brother to sustain the family."
The trial judge found that defendant did not owe plaintiff any support arrears. Moreover, plaintiff has failed to point to any authority that would support her claim that defendant should have been ordered to pay her alleged debt to her brother. Therefore, we find this argument to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
In her brief point J, plaintiff contends that the judge did not address her request to enforce the final judgment provision that required defendant to obtain life insurance for their son. In fact, the judge did address this issue in her September 23, 2005, order, paragraph 4, which stated:
Plaintiff's request to compel defendant to provide proof of a life insurance policy naming plaintiff as beneficiary in accordance with the Final Judgment of Divorce is denied as moot based upon documentation provided by defendant in opposition to plaintiff's motion.
Therefore, plaintiff is not due any relief from us.
In her brief point K, plaintiff argues that the trial judge erred in her order of April 29, 2005, when she held that
[t]he preparation of a QDRO regarding plaintiff's share in defendant's pension, if any, shall be deferred until thirty (30) days following the sale of the former marital residence for the purpose of determining the credits to which defendant may be entitled as a result of any outstanding debt owing to defendant from plaintiff.
Plaintiff maintains that she does not owe money to defendant and, in fact, he owes money to her. She claims that defendant is in possession of his pensions which "are growing in his name alone," and she did not get her portion of them and has "lost interest for two years because they remain in Defendant's name." This claim was addressed in the bankruptcy adversary proceeding to some extent. Plaintiff's half of the escrow fund following the sale of the former marital home was paid to the trustee of plaintiff's estate. Plaintiff received the full exemption amount for the property in the bankruptcy.
On April 29, 2005, the trial judge discussed the proposed order with both parties' attorneys. Counsel clarified that the QDRO would be deferred until the sale of the house to provide credits for any shortfalls. Plaintiff's attorney agreed, stating that the point had already been discussed. The trial judge then gave both parties a copy of the proposed order to review before she signed it. As counsel acquiesced to the deferment of the QDRO, we are bound by the plain error standard.
R. 2:10-2. Because the deferment, agreed to by the parties, was ordered for the reasonable purpose of compensating for any shortfalls following the sale of the house, we find the deferral did not have the capacity to produce an unjust result.
In her brief point L, plaintiff argues that the trial judge erred in not ordering defendant to reimburse her for repairs she made to the home "some of which were caused by Defendant and some while Defendant was still living there." She maintains that she has "enriched the value of the property" and that defendant would obtain the benefit when the house was sold.
The judgment of divorce stated that the "parties shall continue, as previously ordered by the court, to make of [sic] the mortgage, real estate taxes and expenses of the house until the property is sold." The trial court did not specify what were the household "expenses," and plaintiff did not provide a copy of whatever previous orders were made by the court concerning the "expenses" of the marital home.
Plaintiff moved in her August 2005 motion for an order compelling defendant to pay "at least half" of the home repairs that she paid by herself "to upkeep the home, which is also his asset." She claimed to have spent $1945.75. Attached to her motion were invoices for lawn cutting;*fn2 a "smoke detector fam [sic] guard;" a shop-vac; a washing machine hose; plumber visits to "snake" her clogged sewer, install a sump pump, clear a clogged tub, and install a new washing machine valve; a carpenter ant service agreement; and several visits from PSE&G for undecipherable services.
The judge denied the motion, stating:
As to enforcement of maintenance costs or expenses associated with the former marital home (other than the mortgage/equity loan and real estate taxes) incurred subsequent to the Final Judgment of Divorce, plaintiff is responsible for those costs as the Court considers such expense to be routine maintenance and plaintiff has had exclusive possession of the former marital home since the date of trial in this matter (if not earlier).
As noted, plaintiff does not provide whatever orders predated the final judgment of divorce that might support her claim that defendant had been ordered to pay repair expenses. While plaintiff argues that it is only fair that defendant pay for half of these costs, she fails to note that while she has been living in the house, defendant has been paying for half of the mortgage and real estate taxes since the time he moved out of the home in 2003 and continuing past the judgment of divorce. When the judgment of divorce was entered, the trial judge anticipated that defendant would not have to pay these expenses for long, as the judgment gave plaintiff thirty days from its date, February 5, 2004, to exercise her right to purchase the home. If plaintiff failed to exercise her right, defendant had the right to purchase the home, but within forty-five days of the date of the judgment. Over a year later -- and as of the time this appeal was filed -- the house still had not been sold, and defendant continued to pay those costs.*fn3 Thus, not only is there no specific authority requiring defendant to pay these expenses, but defendant also had a reasonable equitable argument given his continued mortgage and tax payments that he should not be responsible for these repair costs.
Plaintiff did not present any compelling reason to reverse the trial judge's decision that defendant was not responsible for half of the home maintenance costs.
DAUGHTER'S MEDICAL CONDITION
In her brief point M, plaintiff argues that the judge erred in not considering her daughter's medical condition.
Specifically, she argues that J.H. needs medical attention for hyperparathyroidism and has no medical insurance, so defendant should pay for it. The trial judge denied the request, stating that J.H. had been emancipated.
The trial judge's ruling was correct. J.H. had been emancipated and plaintiff did not move to "unemancipate" her due to changed circumstances. Thus, defendant had no legal obligation to contribute to his then twenty-four-year-old daughter's medical needs.
SAVER REBATE CHECK
In her brief point N, plaintiff claims that the trial judge failed to address a 2003 Saver Rebate check for $800 that was payable to both parties. Plaintiff claims that defendant deposited the check without her signature and that he was not even "entitled to this check because he did not live in the home at the time." Defendant does not respond to this argument.
Plaintiff does not advise when she moved for relief on this issue, and the record contains no mention of the Saver Rebate check in any of the motions or orders, including the final judgment of divorce. The rebate check was for 2003. She does not state when it was actually received, nor does she identify the check in the record, requiring the court to scour the record. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977); R. 2:6-9. The record includes a 2003 NJ Saver Rebate check dated December 5, 2004. There is no evidence that she moved for relief on this issue, nor does the issue impact a "great public interest"; therefore, we decline to consider the issue. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In her brief point O, plaintiff argues that the court erred in not ordering defendant to pay her attorneys and in ordering her to pay his counsel fees. She maintains that her counsel fees were over $100,000, the case became protracted because defendant was "unreasonable on every issue," and defendant has a "far superior capability of paying" the fees than plaintiff.
First, to the extent that plaintiff argues about attorneys' fees incurred through the judgment of divorce, we need not consider the argument because she already appealed that decision, and lost. T.W. v. A.W., supra, 224 N.J. Super. 675, 682 (App. Div. 1988), certif. denied, 117 N.J. 44 (1989).
Plaintiff did not request attorneys' fees in the April 2005, proceedings. Defendant did, but his request was denied.
Plaintiff did seek counsel fees in relation to her August 2005 motion, but the trial judge denied her request as she was acting pro se and did not incur any counsel fees. Further, the judge noted that much of plaintiff's requested relief was repetitive of previous relief requested and denied, and plaintiff failed to satisfy the requirements of Rule 5:3-5(c) regarding an award of counsel fees.
Defendant requested counsel fees incurred in connection with the motion returnable in September 2005, but the judge denied his request without prejudice, noting that she had previously awarded defendant attorneys' fees, "and it is questionable whether plaintiff has the ability to pay additional sums as attorneys' fees." The judge did warn plaintiff, however, that if she continued to relitigate the divorce complaint, she might face sanctions in the future.
Given the trial judge's denial of defendant's request for counsel fees, there is no award for her to appeal. Further, as plaintiff was a pro se litigant, she was not entitled to pay herself for her time. See Appell v. Reiner, 81 N.J. Super. 229, rev'd, 43 N.J. 313, on remand 86 N.J. Super. 515 (Ch. Div. 1963).
In her brief point P, plaintiff contends that the judge erred in not awarding her support arrearages, medical arrearages, and mortgage arrearages.
In her August 2005 motion, plaintiff claimed that defendant was in arrears on both his alimony and child support for a total of $1129. She claimed that he was "predating the checks and holding them," which allowed him to eliminate five payments. However, in her reply certification, she stated that defendant was four weeks behind, not the five she claimed in her motion.
Defendant submitted numerous alimony checks to substantiate his payments.
The trial judge denied plaintiff's motion, stating that "the information provided failed to substantiate that defendant has any arrears as to support."
On appeal, plaintiff again fails to substantiate her claim, making only general statements and failing to address the proofs defendant presented to the trial judge. There is no basis to find that the trial judge erred in her conclusion that there were no arrears due on alimony or child support.
Plaintiff next complains that the trial judge awarded her only $16.20 for over $2700 worth of medical bills for S.H. "and that was just from the point of the final judgment." She argues that defendant should be responsible for the $250 deductible in the final judgment because plaintiff "earns considerably less than Defendant and Defendant now has residential custody of S.H."
Under the judgment of divorce, plaintiff had residential custody of S.H., defendant paid child support and, in addition, was responsible for 54.11% of S.H.'s medical bills, after the first $250, which were to be covered by plaintiff.
In her motion of August 2005, plaintiff claimed that defendant had not paid his share of S.H.'s medical expenses, which she calculated to be $1379.91.
The trial judge granted plaintiff's motion to compel defendant's payment of his proportionate share of unreimbursed medical costs incurred for 2004. The trial judge stated that she "went through at great length all of the reported un-reimbursed medical expenses incurred for S.H." for the year 2004. She deducted expenses that were not strictly S.H.'s, such as over-the-counter drugs, and found that plaintiff documented $280 in expenses. The trial judge noted that under the final judgment of divorce, plaintiff was responsible for the first $250, and, therefore, awarded plaintiff $16.20, representing defendant's 54.11% share. The trial judge denied plaintiff's request to compel defendant's payment of unreimbursed medical expenses for 2005, "as plaintiff failed to document unreimbursed medical expenses in excess of $250.00 for the year 2005."
Plaintiff failed to show through documentation that the trial judge erred in her calculations. She was obligated to pay the first $250 of S.H.'s unreimbursed medical expenses under the final judgment. She already appealed the final judgment and cannot argue that she should not be responsible for that amount at this time. T.W. v. A.W., supra, 224 N.J. Super. at 682.
Under the final judgment of divorce, the parties were to split the costs of the mortgage and taxes for the former marital home until it was sold. In her August 2005 motion, plaintiff claimed that defendant had not paid half of the mortgage, taxes and insurance, which amounted to $6641.43.
Defendant admitted that when he moved for relief from this order, he stopped making payments because he could not afford all of his obligations, but when the court ordered him to continue to pay, he did. He acknowledged that "if I owe anything toward those unpaid bills at the time of closing, I am willing to adjust the distribution of proceeds, accordingly."
The trial judge held that "[t]o the extent either party is delinquent with respect to payment of the 1/2 monthly mortgage/equity loan and/or real estate taxes for the former marital home, such sums may be adjusted at closing."
Plaintiff argues that this money should have been awarded to her without waiting for the closing, but she does not provide any authority for her position. While the trial judge certainly could have ordered defendant to pay his share immediately, the trial judge did not abuse her discretion in ordering that this figure be adjusted at the time of closing. We note that the stipulation of settlement from the bankruptcy adversary proceeding makes no reference to any arrearages.
In her final brief point, plaintiff argues that the court erred in not awarding her remedies under the Domestic Violence Act.
The trial judge dismissed the parties' marital tort claims prior to trial because neither party submitted medical evidence in support of their claims by the deadline imposed by the court. Plaintiff already appealed the final judgment and is not permitted to raise the issue again. T.W. v. A.W., supra, 224 N.J. Super. at 682.
Accordingly, we affirm the trial judge's three post-judgment matrimonial orders. To the extent that we have not specifically addressed any of plaintiff's arguments, we find them to be without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).