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Simon v. King

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 17, 2009

DAVID SIMON, PLAINTIFF-APPELLANT,
v.
JANET KING, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1171-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 25, 2009

Before Judges Waugh and Newman.

David Simon appeals from an order of May 14, 2008, denying his motion for post-judgment relief, and from the order of July 3, 2008, denying plaintiff's motion for reconsideration. By way of relief, plaintiff sought, pursuant to the final judgment of divorce and order subsequent thereto, to enforce the Family Part's order that defendant Janet King, his former spouse, not interfere with plaintiff's relationship with the parties' son James and to provide updated financial documentation. Plaintiff further sought an order directing the parties to hire a different therapist and directing that the parties and their son James attend therapeutic counseling. In denying both motions, the trial judge decided the matter on the papers.

By way of background, the parties were divorced January 10, 2001. Two children were born of the marriage, Charles on December 9, 1986, and James on November 22, 1990. Charles will be graduating from the University of South Carolina this spring and will then enter the service. James is a senior at Morristown High School and is now eighteen years of age. Although he is not emancipated for support purposes, he has reached the age of majority. James does not have immediate plans for college and expects to work to help defray the cost of any college expense should he seek to go on to college in the future.

Because James is now an adult, we have concluded that the issues related to his relationship to his father are moot. Consequently, we express no opinion with respect to those issues or the propriety of the motion judge having decided them without oral argument.

With regard to plaintiff's motion to seek financial information from defendant, the court found the motion unfounded. The judge stated:

Individuals have a legitimate interest in the privacy of their financial information. Generally discovery of financial information is permitted only for good cause. See Lepis v. Lepis, 83 N.J. 139, 158 (1980); Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006). Plaintiff has not provided any, much less sufficient, proof of changed circumstances bearing on the issue of support and/or payment of college expenses that would justify the exchange of financial information. Therefore, plaintiff's motion in that regard is DENIED.

On appeal, plaintiff raises the following points for our consideration:

POINT I: THE TRIAL COURT ERRED BY FAILING TO SCHEDULE ORAL ARGUMENT AND A PLENARY HEARING TO RESOLVE MATERIAL FACTUAL ISSUES REGARDING THE PLAINTIFF'S ALLEGATIONS OF DEFENDANT'S INTERFERENCE IN THE RELATIONSHIP BETWEEN PLAINTIFF AND THEIR SON JAMES.

POINT II: THE TRIAL COURT BELOW ERRED BY FAILING TO SCHEDULE ORAL ARGUMENT AND A PLENARY HEARING TO ADDRESS THE PLAINTIFF'S ALLEGATIONS THAT THE DEFENDANT WAS IN VIOLATION OF LITIGANT'S RIGHTS BY FAILING TO PROVIDE UPDATED FINANCIAL INFORMATION IN GENERAL AND WITH REGARDS TO ROCHESTER INDUSTRIAL CONTROL, INC., IN PARTICULAR, SO THAT THE PARTIES CONTRIBUTION TO COLLEGE COSTS WOULD BE APPROPRIATELY ADDRESSED.

Plaintiff argues that oral argument, which was requested, should have been granted and that this matter should be remanded to afford the oral argument that was denied to plaintiff. Plaintiff made a timely request for oral argument. Defendant requested that the court decide the matter on the papers submitted.

Rule 5:5-4(a) provides:

Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.

In Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998), we made the following observations concerning the requirements of Rule 5:5-4(a):

Lastly, we must comment on the refusal to grant defendant's request for oral argument.

R. 5:5-4(a) grants discretion to the trial judge to allow oral argument but provides that "the court shall ordinarily grant requests for oral argument on substantive . . . motions." We have interpreted this rule as mandating argument when significant substantive issues are raised and argument is requested. Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997). . . . The denial of such argument deprives litigants of an opportunity to present their case fully to a court. Denial of such a right, given the issues in dispute, was an abuse of discretion and was violative of both the letter and spirit of R. 5:5-4(a). (emphasis added).

At least with respect to the issue of financial discovery, we are satisfied that the motion judge had the discretion to deny oral argument. The trial court concluded that there was no change in circumstances to warrant any financial disclosure because no good cause had been shown, citing Lepis v. Lepis, 83 N.J. 139, 158 (1980). In this respect, the trial court was correct in its ruling. No oral argument would have further advanced what was already set forth in the certification.

The request for financial disclosure concerning the ability to pay college costs in the future was premature. It is questionable when and if James will attend college and whether or not he will need or request parental support for the costs of any college education. We know from the record that the maternal grandmother has contributed to the college expenses of Charles in the amount of $3,000 a year and is likely to do the same should James attend college. There are no specifics of James even applying, much less being accepted to college, and what costs by way of tuition, room and board, and books would be required. Thus, there is no present basis to require disclosure in this situation.

With regard to Charles' college education, he is graduating from college. In a notice of motion submitted by plaintiff for March 3, 2006, he stated "Charles . . . has been awarded both a full scholarship for books and tuition from the R.O.T.C. and a scholarship from the University for meals and housing." Plaintiff contends that he contributed between $9,000 to $10,000 to Charles. However, in view of what he previously stated in his notice of motion, it appears that Charles' college education has been paid for by way of an R.O.T.C. scholarship and a scholarship from the University of South Carolina. Additionally, Charles received $3,000 annually from his grandmother. Any additional monies that plaintiff may have given to Charles could possibly be spending money, but that is not made clear nor is there any documentation for this purported $9,000 to $10,000. We fail to see from what has been submitted why any financial disclosure from defendant would be warranted.

We affirm the orders on appeal to the extent they relate to financial disclosure. The appeal is dismissed as moot as to the remaining issues.

20090417

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