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Scheiner v. Eisenberg

November 6, 2009

SHOLOM SCHEINER, PLAINTIFF-APPELLANT,
v.
RACHEL EISENBERG N/K/A RACHEL LEARY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-194-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2009

Before Judges Payne and Miniman.

Plaintiff, Sholom Scheiner, appeals pro se from orders of a judge of the Family Part dated February 29, 2008 and March 4, 2008. On appeal plaintiff makes the following arguments:

I. PLAINTIFF WAS DEPRIVED OF A FAIR TRIAL WHEN DEFENSE COUNSEL IMPLIED PLAINTIFF COULD AFFORD ADDITIONAL CHILD SUPPORT (TUITION) AND DEFENDANT DIDN'T PROVIDE REQUESTED EVIDENCE OF INCOME AND EXPENSES.

II. THE SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, MORRIS COUNTY ERRED IN ITS DISCRETION BY ENTERING AN ORDER FOR THE PLAINTIFF'S ARREST FOR FAILURE TO PAY CHILD SUPPORT ORDERS AND TUITION ORDERS IN AN AMOUNT THAT EXCEEDS HIS ABILITY TO PAY.

III. THE SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, MORRIS COUNTY ERRED IN ITS DISCRETION BY ENTERING AN ORDER FOR THE PLAINTIFF'S ARREST FOR FAILURE TO PAY COUNSEL FEES.

IV. THE SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, MORRIS COUNTY ABUSED ITS DISCRETION BY REFUSING THE CURRENT CHILD SUPPORT TO BE RECALCULATED ACCORDING TO NEW JERSEY STATE CHILD SUPPORT GUIDELINES AND TO TAKE INTO ACCOUNT THE OTHER DEPENDANT DEDUCTION FOR HIS SUBSEQUENT TWO BIOLOGICAL CHILDREN.

This case has a long and convoluted history centering around issues of child support, payment of expenses, and visitation. The parties, both Orthodox Jews, were divorced on October 5, 2000 in Massachusetts. Defendant, Rachael Eisenberg, was granted sole legal and physical custody of the three male children of the marriage, then age four, two and one. No visitation was ordered, and no alimony was awarded. However, plaintiff was ordered to pay child support in the amount of $264 per week. For a period of time, defendant and her three boys lived in South Africa. Upon their return to the United States, they lived in various locations, eventually settling in New Jersey. In 2004, plaintiff, likewise, moved to New Jersey. Both parties have remarried. Plaintiff has two additional children from his second marriage; defendant has one. The spouses of both plaintiff and defendant each have custody of two additional children from prior marriages.

Following extensive motion practice, on March 9, 2006, plaintiff appealed from orders entered in the Family Part on May 12, 2005, denying reduction of child support, and on December 16, 2005, requiring plaintiff to pay one-half of the private Hebrew school tuition and unreimbursed medical expenses for the three boys.*fn1 We issued an unpublished opinion in the matter on June 12, 2007. Scheiner v. Eisenberg, No. A-3938-05T1 (App. Div. June 12, 2007).

On appeal, plaintiff "attested that his current wife was expecting her second child and he could not afford to pay the $264 per week in child support as ordered in the judgment of divorce. He sought a reduction to $150 per week. He objected to defendant's cross-motion seeking an order for him to pay one-half of the children's private school tuition." Slip op. at 2.

However, on appeal plaintiff failed to furnish the transcripts of the hearings on motions that led to the orders for which he sought reversal, as required by Rule 2:5-3(b), and he failed to provide the child support worksheets that should have been appended to the orders from which the appeals were taken. R. 5:6A. As a consequence, we determined that we were unable to decide whether the trial court applied the Child Support Guidelines correctly or otherwise gave fair consideration to the motions. Slip op. at 4. Nonetheless, we quoted at length from the opinion of Judge Herman in Martinez v. Martinez, 282 N.J. Super. 332, 340-42 (Ch. Div. 1995), which discusses the considerations applicable to motions by divorced spouses to reduce child support because of remarriage and the birth of additional children. We also stressed the obligation of the trial court to undertake an analysis under the Child Support Guidelines to determine whether changed circumstances warranted modification of the movant's support obligations. Slip op. at 5. We concluded by stating: if the trial court failed to undertake an analysis under the Child Support Guidelines either in writing or on the record, as required by R. 5:6A, plaintiff should make an application for the trial court to do so before he files a new appeal. Similarly, if the trial court failed to append a worksheet to the orders, as required by R. 5:6A, plaintiff should make an application for the trial court to do so.

[Slip op. at 6.]

The history of a visitation dispute that figures in the present appeal predates our opinion of June 12, 2007. On November 18, 2005, defendant filed an order to show cause why plaintiff's visitation with his three sons should not be suspended after an incident during which plaintiff shoved his oldest son into a waiting car in a fashion that caused the son minor injury. In an order dated December 6, 2005, the court required, among other things, that the parties meet with a mediator to determine a parenting plan, and until that plan was established, plaintiff was to have supervised visitation with the oldest child and parenting time with the parties' two youngest children on alternating weekends from Friday night to Saturday night and on Thursday evenings. Because a ...


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