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O'Connor v. Drobner

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 11, 2009

JEANNE E. O'CONNOR, PLAINTIFF-RESPONDENT,
v.
RICHARD M. DROBNER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-2279-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 19, 2009

Before Judges Wefing, Parker and LeWinn.

In this post-judgment matrimonial matter, defendant Richard M. Drobner appeals from two orders entered in the Family Part on January 18, 2008; the first order denied defendant's motion to be relieved of the requirement that his passport remain in his attorney's possession; the second order required defendant to reimburse plaintiff the amount of $4429.45 as his share of the children's unreimbursed medical expenses and to pay $6855 in child support arrears; it further required defendant to reimburse plaintiff the sum of $27,627.35, representing his share of the parties' son's private school tuition and to continue to pay fifty percent of the son's private school tuition until graduation. For the reasons that follow, we decline to address the first order regarding defendant's passport; we reverse and remand the second order, however, to afford the parties the opportunity for oral argument on those issues.

The pertinent factual background may be briefly summarized as follows. The parties were married in 1989. A judgment of divorce nunc pro tunc was entered on February 13, 2003. An amended judgment of divorce was entered on April 30, 2003, which incorporated the parties' property settlement agreement (PSA). Pursuant to the PSA, plaintiff was designated the custodial parent of the parties' three children who were ages eight, six and two at the time of the divorce. Defendant's child support obligation was set at $1500 per month. The PSA further reflected the parties' agreement to share on the basis of fifty percent . . . by [defendant] and fifty percent . . . by [plaintiff] the expense of the children's day and child care, secondary school expenses, activities, lessons, tutoring, summer camp expenses and other children's "extras," as agreed upon by the parties, consent to said agreement not to be unreasonably withheld.

Thereafter problems apparently arose between the parties regarding the children, which resulted in the entry of an order on April 13, 2007, pursuant to a motion brought by plaintiff, providing, inter alia, that defendant continue in individual counseling and that the parties enroll in a parenting class and attend family therapy. That order provided further that "defendant [wa]s prohibited from removing the parties' children from the State of New Jersey without further [o]rder of the [c]court[,]" and compelled defendant to "surrender his passport (if available) . . . within five (5) days[,]" allowing it to be released "only for those purposes not involving the children . . . ."

On November 27, 2007, defendant filed a motion seeking to amend the requirements relating to his passport and travel with the children in the April 13, 2007 order. Defendant did not request oral argument on his motion.

On December 20, 2007, plaintiff filed a cross-motion seeking eleven forms of economic relief, including, inter alia, reimbursement by defendant for the children's unreimbursed medical and child care expenses; payment of $6855 in child support arrears; the return of funds withdrawn from the children's custodial accounts; and payment of defendant's fifty percent share of the parties' oldest son's private school expenses. Plaintiff requested "oral argument as to all issues[]" in her notice of motion.

On January 18, 2008, the trial court entered the two orders which are the subject of this appeal without holding oral argument.

Defendant filed his initial notice of appeal on February 29, 2008. Thereafter, following a pre-argument conference, we remanded the matter to the trial court with directions to "issue a written opinion or memorandum decision, finding the facts and stating the conclusions of law thereon with respect to paragraphs 2, 6 and 10 of the [January 18, 2008] order . . . ."

Defendant subsequently filed an amended notice of appeal on June 11, 2008, noting that he was appealing from "[p]aragraphs 2, 3, 6, 7, 8, 9 10, 11, 13 and 14" of the January 18 order prepared by plaintiff's counsel; and "[p]aragraph[s] 1 and 2" of the January 18 order prepared by the court.

On July 30, 2008, the trial court filed its findings of fact and conclusions of law pursuant to our remand.

In his appellate brief, defendant informs us that "[p]aragraphs 3, 7, 8, 9, 12, 13, and 14 of the trial court order of January 18, 2008 . . . are no longer issues which need to be considered on appeal." Thus the paragraphs of that order which remain in issue are: paragraph 2, requiring defendant to reimburse plaintiff the amount of $4429.45 as his share of the children's unreimbursed medical expenses; paragraph 6, requiring defendant to pay plaintiff $6855 in child support arrears; paragraph 10, requiring defendant to reimburse plaintiff the sum of $27,627.35 representing his share of the parties' son's private school expenses; and paragraph 11, requiring defendant to continue to contribute equally to the son's private school tuition until graduation.

On appeal defendant raises the following issues for our consideration:

POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DECIDED DEFENDANT'S MOTION AND PLAINTIFF'S CROSS MOTION ON THE PAPERS, WITHOUT THE BENEFIT OF ORAL ARGUMENT, NOTWITHSTANDING THAT ORAL ARGUMENT WAS REQUESTED BY PLAINTIFF'S COUNSEL, IN PLAINTIFF'S CROSS MOTION

POINT II UNDER THE PROVISIONS OF N.J.R. 1:6-3(1)(b), THE TRIAL COURT ERRED IN CONSIDERING THE ISSUES RAISED IN PLAINTIFF['S] CROSS MOTION

POINT III THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY NOT, BY OPINION OR MEMORANDUM DECISION, EITHER WRITTEN OR ORAL, FINDING SUFFICIENT FACTS OR STATING SUFFICIENT CONCLUSIONS OF LAW WITH RESPECT TO COURT ORDERS OF JANUARY 18, 2008, PURSUANT OF N.J.R. 1:7-4, OR AFTER RECEIVING NOTICE OF THE FILING OF THE WITHIN APPEAL, PURSUANT TO N.J.R. 2:5-1(b) OR PURSUANT TO THE APPELLATE DIVISION ORDER OF LIMITED REMAND

POINT IV DEFENDANT DOES NOT OWE TO PLAINTIFF UNREIMBURSED MEDICAL EXPENSES FOR 2005/2006, IN THE SUM OF $4,429.45, WHICH DEFENDANT WAS ORDERED TO PAY IN PARAGRAPH 2 OF THE COURT'S ORDER OF JANUARY 18, 2008 . . . , BUT DEFENDANT DOES ACKNOWLEDGE THAT HE OWES A PORTION OF THAT AMOUNT

POINT V PARAGRAPHS 3, 7, 8, 9, 12, 13, AND 14 OF THE TRIAL COURT ORDER OF JANUARY 18, 2008 . . . ARE NO LONGER ISSUES WHICH NEED TO BE CONSIDERED ON APPEAL

POINT VI THE TRIAL COURT ERRED IN NOT RELIEVING DEFENDANT OF THE REQUIREMENT THAT HIS PASSPORT BE IN THE POSSESSION OF MC DONNELL & WHITAKER, L.L.P. WHEN NOT IN ACTUAL USE BY DEFENDANT FOR PURPOSES NOT INVOLVING THE CHILDREN, AND FURTHER ERRED IN NOT ALLOWING DEFENDANT TO TRAVEL WITH THE CHILDREN OUTSIDE THE STATE OF NEW JERSEY, ABSENT PRIOR WRITTEN CONSENT OF PLAINTIFF

We note at the outset that defendant has not addressed a separate point heading to the child support arrears provision in paragraph 6 of the January 18, 2008 order, although he did not include that paragraph among those eliminated from consideration on appeal. He does contest this issue, however, and we shall include it among the issues to be addressed on remand.

We find merit in defendant's first argument that the trial court should have held oral argument on plaintiff's cross-motion. Although defendant did not request oral argument on his motion for limited relief regarding return of his passport and the lifting of restrictions on his travel with the children, plaintiff did specifically request oral argument on her multi-part cross-motion. At that point, defendant had no opportunity to request oral argument on the cross-motion, which went far beyond the scope of his motion. R. 1:6-3(b). Defendant could reasonably have expected that the trial court would schedule oral argument based upon plaintiff's request in her cross-motion.

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.

"[T]here is a strong presumption favoring argument of motions other than calendar matters and routine discovery applications." Pressler, Current N.J. Court Rules, comment 1.1 on R. 5:5-4 (2009) (emphasis added).

Regarding the medical expenses, defendant notes that plaintiff "advanced the sum of $5,085.00" for the eldest son's braces, but failed to address whether she "received either reimbursement(s) from insurance carriers or refund(s) from the [d]entist, based upon insurance payments." The trial court did not address this issue in its statement of reasons filed on July 30, 2008.

Regarding alleged child support arrears, defendant provided a chart of his child support payments between March and December 2007, and calculated that, at the time of plaintiff's motion, he owed her only "the sum $855.00."

On the issue of the private school expenses, defendant certified in opposition to plaintiff's cross-motion that he did "not agree that it is either necessary or appropriate for [the eldest son] to be attending [private] school . . . ." He appended his letter and email correspondence to plaintiff indicating that he could not afford to pay private school expenses and that "after further evaluation of the cost/benefit associated with private school in 6th grade, [he] had decided that [the child] should defer until 9th grade[,]" adding: "Please DECLINE the admission to [private school]."

While the trial court addressed these three issues in its supplemental statement, we conclude that defendant should have the opportunity to present oral argument on these issues. Therefore, we reverse those three provisions of the January 18, 2008 order and remand for oral argument on those issues only. We express no opinion on the merits of these issues; we simply require that the trial court comply with Rule 5:4-4(a) and hold oral argument.

Finally, we address defendant's arguments regarding the issues raised in his motion. We note that the record provides no explanation for the entry of the April 13, 2007 order from which defendant sought relief in his November motion. In denying that motion, the trial court noted: "[Defendant] offers no proof as to why the relief he requests should be granted. He states that the reasons for the restraints 'no longer exist.' [Defendant] should be commended for his rehabilitation efforts thus far, but the [c]court does not agree with his conclusions regarding this issue."

In plaintiff's opposing certification, she noted that defendant was charged with the criminal offense of parental kidnapping, as the result of which he "is currently enrolled in the Bergen County Pre-Trial Intervention program that is run by the Bergen County Probation Department." Plaintiff stated that, "while [she] still ha[s] serious concerns about . . . [d]efendant traveling with the children out of s[t]ate, [she] w[ould] consent to . . . the following terms:" that defendant allow his passport to be held by his attorney and provide plaintiff with a minimum of thirty-days advance notice of his plans, including an itinerary and contact information. Regarding the outright return of defendant's passport, plaintiff "insist[ed] that any such determination be stayed until he has at least satisfied his obligations with the Bergen County Pre-Trial Intervention program."

In his motion, defendant certified that he is "required to do somewhat extensive international travel, as part of his job responsibilities." Therefore, the unavailability of his passport "creates inconvenience to [him]." Defendant appended no documentation, however, supporting this claim. Moreover, the April 13, 2007 order provides that defendant's passport "shall be released . . . for those purposes not involving the children[,]" thereby eliminating any impediment to defendant's business-related travel.

Regarding travel with the children, defendant does not address in his brief what, if any, issues he has with the concessions made by plaintiff and the terms set forth in her certification.

Given the paucity of the record on this issue, we decline to address it on the merits. Defendant is free to bring a new motion in the trial court with appropriate supporting documentation.

The January 18, 2008 order requiring defendant to pay medical expenses, child support arrears and private school expenses is reversed and remanded for proceedings in conformance with this opinion.

20090811

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