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Terwilliger v. Terwilliger

March 25, 2009

JOANNE TERWILLIGER, PLAINTIFF-RESPONDENT,
v.
DAVID TERWILLIGER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1292-02C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 20, 2008

Before Judges Sapp-Peterson and Alvarez.

Defendant David Terwilliger (David) appeals from an October 10, 2007 order that required his former wife, plaintiff Joanne Terwilliger (Joanne), to pay $170 per week in child support for the parties' two children retroactive to September 4, 2007. We reverse only as to the effective date of the order and remand for further proceedings as to the appropriate effective date for Joanne's child support obligation.

We begin with the tortured procedural history that leads us to this result. The parties divorced on January 31, 2003. At the time, Joanne had custody of the children. On January 30, 2006, David filed a pro se motion under the parties' matrimonial FM docket number*fn1 to modify his child support obligation as the children, by mutual consent, had come to live with him. The divorce decree required him to pay $90 per week in child support. Despite Joanne's failure to file any response, David's FM application was dismissed on March 7, 2006, because he did not include a copy of the January 31, 2003 divorce decree, or any financial information, with his pro se application. The children have lived continuously with David since at least some time in January 2006, prior to his first pro se motion seeking to modify child support. Despite the children's residence with David, and the fact that Joanne was not paying child support, David was incarcerated twice for non-payment of child support between January 30, 2006, and June 18, 2006.*fn2

David next filed an application under a new and separate FD docket number, and on June 20, 2006, Joanne's parenting time was limited to supervised visitation. David's obligation to pay child support was suspended from June 18, 2006, "until further order of the court." A hearing date of July 5, 2006, was scheduled, presumably to address his request for child support, although no hearing took place on that date.

On September 1, 2006, under the same FD docket number, David filed a third motion seeking custody of the children and an order for child support. On December 22, 2006, the court continued custody in David, but did not decide the issue of child support. The December 22 order also stated that child support would be addressed at a plenary hearing, and scheduled a case management conference for January 30, 2007. It was anticipated that a date for the plenary hearing on child support would be set at the case management conference.

Following the case management conference on January 30, 2007, the court ordered Joanne to file a Case Information Statement (CIS)*fn3 and other relevant economic information and directed that failure to file the CIS would result in dismissal of Joanne's pleadings. The order also consolidated the FD docket into the FM docket, set a schedule for discovery, and indicated that subsequent to Joanne filing her CIS, the parties were to "discuss fixing temporary child support under [the] guidelines without prejudice." The order states: "Failure to resolve by 2/23/07 shall be a basis for renewed motion for PL support."

No support hearing was ever conducted. We cannot discern from our review of the scant documents included in the appendix to David's brief any reason for the court's failure to award child support, even on an interim basis. Nor can we discern why the burden was shifted to David to file yet another application so as to obtain the relief he had been seeking for months. In any event, on March 19, 2007, citing Joanne's refusal to "discuss" temporary child support, David filed a motion to "enforce litigant's rights."

We do not know why on April 26, 2007, enforcement of litigant's rights was denied "without prejudice." No plenary child support hearing was scheduled. No child support was ordered.

A plenary hearing was finally scheduled for September 5, 2007, for reasons not clear from the record we have been provided, as at that time, there did not appear to be a motion pending. On August 24, 2007, however, Joanne's attorney was permitted to withdraw as her counsel.

On September 4, 2007, David filed another motion, possibly his fifth, again seeking child support retroactive to the initial January 30, 2006 filing date. The application sought additional relief not relevant to this appeal and included a request that David's child support obligation be vacated retroactive to the date that the children began to live with him.

On September 18, 2007, David was awarded sole custody of the children. A hearing on the financial issues, however, was postponed once more, this time to October 5, 2007. On October 10, 2007, when child support was at last awarded, it was made effective retroactive only to September 4, 2007. The court also denied David's ...


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