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Breckenridge v. Breckenridge


July 20, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-433-05-C.

Per curiam.


Argued June 16, 2009

Before Judges Carchman and Parrillo.

Defendant John Breckenridge appeals from a May 27, 2008 post-judgment order of the Family Part directing him to pay his one-half share ($1000) for certain expenses already incurred on behalf of his two children and obligating him prospectively, to pay one-half of the cellular phone and school expenses for both of them. We affirm.

By way of background, defendant and plaintiff Kathy Breckenridge were married on November 20, 1993, and had two sons, M.B., born February 8, 1992, and K.B., born July 7, 1994. The parties were divorced on January 19, 2006, by final judgment (FJD), which incorporated a Property Settlement Agreement (PSA). Therein, plaintiff is designated the parent of primary residence, and defendant is obligated to pay child support of $170 per week, or $731 monthly. Child support is to continue until the first of either both children's emancipation or defendant's death. Both parties are required to maintain life insurance policies, with the children named as beneficiaries. In addition, plaintiff is to maintain medical and dental insurance for the children through Blue Cross/Blue Shield provided by her employment, and both parties are each responsible for fifty percent of the unreimbursed medical, dental, prescription drug, optical and hospitalization expenses incurred by both children. According to New Jersey Child Support Guidelines, plaintiff is also responsible for the first $250 of these expenses as the parent of primary residence. The PSA contains a "no oral modification" clause, which requires any changes to be in writing and with formality. A "dispute" clause requires the parties to first attempt to resolve disputes by agreement.

Approximately two years after entry of the FJD, plaintiff moved for, among other things, an increase in child support and one-half reimbursement for $2000 in expenses incurred in the past two years for school costs, cellular communication, bedding/mattresses and Weight Watchers, on behalf of M.B., a child with special medical needs. After receiving and considering defendant's opposition, the judge issued a tentative decision, increasing defendant's child support obligation to $197 per week and directing him to reimburse plaintiff within thirty days, the sum of $1000 for expenses already incurred for the children. The judge's tentative decision also held defendant responsible, prospectively, for one-half of M.B.'s cellular phone and school expenses. As with unreimbursed medical expenses, plaintiff was required to provide defendant with all bills for the additional expenses incurred from the previous month on the first day of the following month, and defendant was obligated to make his one-half share payment within fifteen days. Both parties agreed to the tentative decision, with the sole exception that on May 22, 2008, plaintiff's counsel requested that defendant be responsible for a one-half share of such future additional costs incurred on behalf of the parties' other son, K.B., as well. Defendant objected to this request and requested a hearing.

Without further argument, on May 27, 2008, the judge issued a final order, incorporating the terms of his tentative decision, and holding defendant responsible for one-half of the additional expenses (cellular phone and school) for both children, and one-half of the costs of anger-management and nutritional consultation for M.B., in light of his special needs.

On appeal, defendant challenges those portions of the May 27, 2008 order holding him responsible for one-half of such extra costs incurred on behalf of K.B., as well as for $1000 in unreimbursed expenses already incurred on behalf of M.B., without consideration of defendant's ability to pay. We have considered each of these claims in light of the record, the applicable law, and the arguments of counsel and plaintiff and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add, however, the following comments.

Generally speaking, a trial judge has discretion to determine the mode and manner in which a motion should be decided. R. 1:6-2(b). Courts, however, are generally required to 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." R. 5:5-4.

In a Family Part motion scheduled for oral argument, a judge may tentatively decide the matter on the basis of motion papers and make the decision available to the parties. R. 5:5-4(e). Unless either party renews the request for oral argument after reviewing the tentative decision, the tentative decision becomes final, and the right to oral argument is waived. Id.

Here, defendant reviewed the tentative decision and agreed to the terms. The court's final order was, in all material aspects, identical to the tentative decision and resolved all issues concerning prior and future expenses incurred on behalf of M.B., whose special medical needs required ongoing anger-management and nutritional counseling. To be sure, the final order differed from the tentative decision in one respect, namely the inclusion of the parties' other son, K.B., within defendant's obligation to share the cost of the children's additional cell phone and school expenses with plaintiff.

Although defendant claims this disparity warranted the opportunity to be heard, he advances no argument and makes no proffer of evidence to demonstrate why such a hearing would have been beneficial to him or changed the result. The inclusion of K.B. within defendant's overall support obligation was at all times clearly within the fabric and spirit of the original PSA and obviously contemplated by the parties. Nor does defendant ever explain why it is unfair for him to pay a one-half share of the additional costs of raising both children, or why it is reasonable to limit his financial obligation in this regard to only one child. Consequently, we discern no prejudice to defendant in this instance from the court's failure to entertain argument. The matter was briefed, supporting documentation submitted, the essential features of the tentative decision were accepted by both parties, and defendant made no showing that oral argument would have appreciably advanced his cause beyond that which was already before the court.

This same reasoning applies to defendant's argument that a hearing was necessary to determine his ability to pay the $1000 in extra costs already incurred on M.B.'s behalf as well as those future costs incurred on behalf of both children. Defendant initially accepted the determination to increase his weekly child support obligation by $27, which the motion judge set, based on the parties' undisputed income figures and in strict accordance with the Child Support Guidelines. Defendant had also agreed to pay one-half the costs of M.B.'s mattresses, bedding, Weight Watchers program and cell phone expenses already incurred and never really in dispute. In fixing defendant's financial obligations to his children, the motion judge considered all relevant fiscal information submitted by the parties, including defendant's case information statement (CIS) and a detailed account of his earnings, spending and savings. See N.J.S.A. 2A:34-23(a). In contrast, defendant has provided no competent proof of an inability to pay a one-half share of any additional cell phone and school expenses to be incurred by K.B. There being no issue of material fact in this regard, a hearing was simply not warranted. Lepis v. Lepis, 83 N.J. 139, 159 (1980).



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