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Wheeler v. Wheeler

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 13, 2009

BILLINGS WHEELER, IV, PLAINTIFF-APPELLANT,
v.
ANNA WHEELER, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-882-05G.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 2008

Before Judges Gilroy and Chambers.

Plaintiff Billings Wheeler, IV, appeals from the Family Part order of December 10, 2007, denying his motion seeking to compel defendant Anna Wheeler to contribute toward their daughter's support. We affirm.

Following a twenty-seven year marriage, the parties were divorced on January 24, 2007. The court entered an amended judgment of divorce (JOD) on February 2, 2007, incorporating the terms of the parties' property settlement agreement. Two children were born of the marriage: Billings, V, born November 1981; and Elizabeth, born May 1987.

The amended JOD directed plaintiff to: 1) pay defendant permanent alimony in the amount of $50,000 per year, or $4,166 per month; and 2) maintain life insurance on his life in the amount of $250,000, with defendant designated as the beneficiary. The amended JOD also addressed the issue of equitable distribution and each party's obligation to satisfy specific debts. However, the amended JOD did not impose an obligation on either party to pay child support, because the parties deemed the children emancipated. At the time, Billings, V, was twenty-five years old and had graduated college, and although Elizabeth resided with plaintiff at the time of divorce, she was eighteen years old and had voluntarily left college during her freshman year in the fall of 2006. Accordingly, the amended JOD provided: "[a]s a result of her current employment and educational status, there is no child support payable at this time on the part of the parties' daughter . . . ."

Following entry of the amended JOD, defendant filed three motions seeking to enforce litigant's rights. In the third motion filed on November 13, 2007, defendant sought, among other matters, an order compelling plaintiff to pay alimony arrearages, all of defendant's un-reimbursed medical expenses, and counsel fees. On November 19, 2007, plaintiff cross-moved, seeking an order compelling defendant to pay: child support on behalf of their daughter; a portion of their daughter's college tuition expenses; 50% of their daughter's car insurance premiums; and counsel fees. On December 10, 2007, Judge Cassidy entered an order, supported by an oral opinion and written statement of reasons, granting defendant's motion in part and denying plaintiff's cross-motion in its entirety. In denying plaintiff's motion, the judge reasoned that plaintiff failed to provide the court with sufficient information to rule on the merits of his motion. "I think that . . . his failure to provide the [c]court with anything that I would consider to be close to adequate for a Case Information Statement [(CIS)] makes his request for any type of financial remuneration from his wife totally inappropriate. And it will all be denied."

On appeal, plaintiff argues that the trial court erred in denying his motion, contending that "both parents have a duty to contribute to the support of their unemancipated child" and "[d]efendant should be required to make some contribution to her daughter's college expenses."

We have considered plaintiff's arguments in light of the record and applicable law. Because we conclude that Judge Cassidy properly denied plaintiff's motion for his failure to supply the court with sufficient information upon which a reasoned decision on the motion could be made, we affirm and do not address the merits of plaintiff's arguments.

A party moving to modify a child support order has the burden of establishing a prima facie showing of changed circumstances warranting the relief requested. Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). On a claim for contribution toward the cost of a child's college education, trial courts are required to consider not only the statutory criteria of N.J.S.A. 2A:34-23a, but also the factors of Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), "to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac v. Gac, 186 N.J. 535, 543 (2006).

Plaintiff, as the moving party on the motion, bore not only the burden of persuasion, but also the burden of producing all relevant information required for the court to decide the motion. This included providing the court with a properly documented CIS. R. 5:5-2. As stated in the comments to that rule:

Accurate, complete and current information is essential at every stage of a litigated matrimonial matter. The quality of every judicial decision depends heavily on the information presented to the court. Thus, counsel's obligation and the obligation of the parties to cooperate and produce pertinent financial information should be no different at the commencement of the action than it is at other times prior to the actual trial. [Pressler, Current N.J. Court Rules, comment 1 on R. 5:2-2 (2009) (quoting Supreme Court Committee on Matrimonial Litigation, Supreme Court of New Jersey, Final Report 17 (June 10, 1981)).]

Where the moving party fails to provide sufficient information for the court to make a reasoned decision on the relief requested, a court may deny the motion. See Lippmann v. Hydro-Space Technology, Inc., 77 N.J. Super. 497, 504 (App. Div. 1962) (a court need not consider an insufficiently verified complaint).

Here, plaintiff's motion was not supported by a properly documented CIS. For example, plaintiff failed to state his 2007 earned and unearned income on Pages 2 and 3 of the CIS; failed to explain a claimed yearly debt service of $2,283 in Schedule C on Page 6 of the CIS; failed to provide the court with any of Elizabeth's financial resources, including wages earned from part-time employers; and failed to inform the court that Elizabeth's college tuition was offset by a scholarship awarded to her by the college. The failure to provide the trial court with a properly completed CIS deprived the court of the necessary information upon which to make a reasoned determination on plaintiff's motion. Accordingly, we affirm the order of December 10, 2007, denying plaintiff's motion for affirmative relief, without prejudice to plaintiff re-filing the motion in the Family Part.

Affirmed.

20090113

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