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Tuman v. Tuman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 31, 2008

MONICA TUMAN, PLAINTIFF-RESPONDENT,
v.
MICHAEL TUMAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, No. FM-07-2950-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2008

Before Judges Wefing and Koblitz.

Defendant appeals from post-judgment orders entered on June 13, 18, and 19, 2007; July 31, 2007 and August 27, 2007. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

The parties were married on June 29, 1997, and had three children during the course of their marriage, the oldest of whom is now ten years of age and the youngest, six years of age. They were divorced pursuant to a judgment of divorce entered June 29, 2004, which incorporated their property settlement agreement. Under that agreement, the parties shared joint custody of the children, with plaintiff being the residential parent. Defendant agreed to pay five hundred fifty dollars per week in child support, an amount beyond what he would have been called upon to pay if the parties had used the child support guidelines. He also agreed to maintain medical insurance for the children and to be responsible for seventy-five percent of their unreimbursed medical, dental, orthodontic and drug expenses. The agreement made no provision for any additional expenses that might be incurred in connection with the care and rearing of the children, such as camp, Hebrew school or extracurricular activities. Each of the parties waived any claim he or she might have to equitable distribution or to alimony.

Two years after the divorce, the parties returned to court, plaintiff seeking payment of arrears for child support and defendant seeking a reduction in his monthly child support obligation that he sought to have calculated in accordance with the child support guidelines. The trial court, in an order entered on November 3, 2006, denied his motion for a reduction, finding he had not demonstrated a sufficient change in circumstances. In that same order, the trial court removed the cost of living adjustment to the monthly child support that had been added by the probation department. The trial court noted in its opinion that such an adjustment would be appropriate if child support were calculated in accordance with the child support guidelines but was inappropriate in this case where the monthly child support payment was substantially in excess of what would be payable under the guidelines.

Five months later, in April 2007, plaintiff filed a motion seeking to have defendant held responsible for the cost of the children's activities, such as camp, sports and Hebrew school. She contended in her motion that defendant's income from his business had increased and that she could not afford these extra expenses, which she estimated at three thousand dollars per month. She also sought to have the trial court reinstate the cost of living adjustment to the monthly child support. There was no explanation of why this issue was not raised as part of her earlier motion. Defendant opposed this motion and also sought the court's assistance in what he said was plaintiff's failure to comply with the visitation and parenting provisions of their agreement.

Both parties filed conflicting certifications in support of their respective positions. After hearing oral argument but without conducting a hearing, the trial court entered an order on June 13, 2007, directing that defendant would be responsible for seventy-five percent of the costs attendant to the following activities for the children: day camp, Hebrew school, Temple dues, math tutoring and school supplies. That is the first of the orders that is on appeal.

On June 18, 2007, the trial court entered an order amending the June 13 order. The amendment stated that defendant would be responsible for seventy-five percent of the children's extracurricular activities and specified that his obligation included the activities listed but were not limited to those activities alone. That is the second order that is on appeal.

On June 19, 2007, the trial court entered a further amended order. This order included the provision that defendant had fifteen days from the date of the order to pay for the children's day camp. That is the third order that is on appeal.

Defendant then moved for reconsideration and asked for oral argument. Plaintiff filed opposition papers, and the trial court denied the motion without hearing oral argument. The trial court's order entered July 31, 2007, is the fourth order that is on appeal.

The trial court later issued a subsequent order directing defendant to pay seventy-five percent of the amount plaintiff had paid to send the children to Willow Lake Day Camp. That is the final order on appeal.

It is apparent from the record that the parties significantly dispute defendant's financial capabilities. Within the trial court's several opinions, it made no attempt to make any findings with respect to defendant's income but simply stated its belief that he had the available income. It gave no reasons for that belief, however. In light of the conflicting certifications that had been submitted, it would not seem to be possible to come to such a conclusion without conducting a plenary hearing.

It is also apparent from the record that a large portion of the parties' lifestyle during the time they were married was funded to a significant degree by plaintiff's mother, not by defendant's earnings. It is also apparent that plaintiff's mother funded a large portion of the extracurricular expenses attendant to raising the children as they got older. The trial court did not address the question whether defendant is obligated to fund those activities at the same level afforded by his former mother-in-law.

During the course of the argument on plaintiff's initial motion, the trial court commented that defendant's child support obligation of five hundred fifty dollars per month was in the nature of a gross amount since there was no provision requiring him to contribute to the cost of extracurricular activities. It is not immediately apparent to us what led the court, a few months later, to conclude that defendant did have an obligation to contribute to the cost of these activities.

In addition, we note that the orders entered do not provide a dollar limit on the cost of such activities, leaving that issue apparently in the sole discretion of plaintiff. The orders also direct defendant to pay seventy-five percent of the cost of school supplies. It is not clear why that is in addition to defendant's obligation to pay monthly child support.

It is, however, clear that the parties' acrimonious relationship has not improved since their divorce. Although we are not unmindful of the emotional and financial costs that may attend a plenary hearing, that is not a sufficient basis to dispense with proceeding with one when required. At the remand proceedings the trial court shall determine which extracurricular activities fall within defendant's monthly child support payment and which are extraordinary expenses. It then must determine whether those expenses are reasonable and if so, what proportion must be paid by defendant. Accardi v. Accardi, 369 N.J. Super. 75, 87-90 (App. Div. 2004).

The orders under review are reversed, and the matter is remanded for further proceedings.

20080731

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