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Ramirez v. Ramirez


November 24, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FM-05-269-06D.

Per curiam.


Submitted October 6, 2009

Before Judges Wefing and LeWinn.

The parties were divorced by a Dual Final Judgment of Divorce entered on January 29, 2007, which incorporated the settlement agreement set forth in their Dual Final Judgment of Divorce from Bed and Board of November 3, 2006. Plaintiff appeals from three orders stemming from post-judgment proceedings modifying defendant's child support obligation for the parties' daughter in the wake of plaintiff's cohabitation and subsequent remarriage. Specifically, plaintiff appeals from the order of September 12, 2008, setting defendant's child support obligation at $185.00 per week and granting defendant's request for counsel fees pending submission of appropriate documentation; the order of October 14, 2008, ordering plaintiff to pay defendant counsel fees and costs of $3630; and the November 14, 2008 order denying plaintiff's motion for reconsideration. We affirm.

The pertinent factual background may be summarized as follows. The parties were married on January 9, 1995, and have one daughter born in 1997. On October 23, 2006, they entered into a settlement agreement, which provided that defendant would pay limited duration alimony of $350 per week for a period of six years. This alimony amount was "based upon defendant's 2005 income of approximately $80,000/year and imputed income to plaintiff of $21,000/year." Pursuant to a Child Support Guidelines Worksheet appended to the agreement, defendant's child support obligation was set at $130 per week.

Shortly after the judgment of divorce was entered in January 2007, defendant filed a motion to terminate alimony based upon plaintiff's cohabitation with an unrelated male. The parties reached an agreement on modification of the amount and term of alimony, but submitted the resolution of a revised child support amount to the court.

Plaintiff's attorney filed a "position paper for calculation of child support," in which she claimed that defendant's income should be increased by the amount of certain "in kind benefits" he received from his parents, who are also his employers. Counsel claimed that review of defendant's "computerized list of . . . expenses and income" covering the period from January 2001 through July 2007 demonstrated that defendant's parents "contributed to the mortgage and mortgage principal payments" on the marital residence and "always paid all [d]efendant's property tax obligation[s]. This is a practice they started during the marriage . . . ." Counsel also asserted that an annual bonus of $3000 and an annual pay raise of four percent should be imputed to defendant as that reflected his parents' practices during the marriage. Counsel further asserted that defendant exercised fewer overnights per year with the parties' child than their agreement provides.

Defendant's attorney also filed a letter stating that defendant's annual bonus is "already included in his gross pay." Counsel denied that defendant's parents pay his mortgage expenses. Regarding the issue of overnights, counsel stated that there had been no modification of the parenting plan in the agreement.

On December 21, 2007, the trial judge entered an order reflecting plaintiff's modified alimony of $130 per week and setting defendant's revised child support obligation at $161 per week. A letter from the judge to counsel accompanied the order, stating:

I have reviewed the supplemental submissions with regard to the issue of child support. Based upon that review, I believe that [defendant's attorney's] exhibit F is the most accurate representation of the current circumstances and accordingly the $161 figure will be the order of the court.

I have reviewed and considered [plaintiff's attorney's] submission. I also note that at no time was there an application to modify child support based upon a change in circumstances in either [defendant's] income or the number of overnights. Accordingly, in my view the only change in circumstances is the change in alimony . . . . I also note that each of the plaintiff's argument[s] with regard to income and overnights . . . concerns circumstances which existed prior to the entry of the Final Judgment of Divorce. Put otherwise, they do not constitute a real change in circumstances since the Final Judgment of Divorce. In my view the only true change in circumstance warranting the modification of child support is the change in alimony. Accordingly, [e]xhibit F is the best calculation. It carryovers [sic] the assumptions made in the Final Judgment of Divorce with the exception of a change in alimony.

Defendant's exhibit F was a Child Support Guidelines Worksheet indicating that that the parties' respective gross weekly incomes were $404 for plaintiff and $1589 for defendant.

On August 12, 2008, defendant moved to terminate alimony based upon plaintiff's remarriage and to recalculate child support; defendant also sought counsel fees based upon the alleged "lack of reasonableness and lack of good faith positions advanced by the plaintiff as well as her counsel[.]" Specifically, defendant certified that plaintiff unreasonably raised claims regarding defendant's income which had previously been submitted to the trial judge and rejected, as evidenced by the judge's order and letter of December 21, 2007.

Defendant cited plaintiff's claims that he earned more income than he had reported; that his parents paid his mortgage and property tax expenses; and that he had fewer overnights with the parties' daughter than the number set forth in the agreement. Defendant asserted that these contentions were false, had already been considered and rejected by the judge, and, therefore, evidenced plaintiff's bad faith. Defendant appended his 2007 federal income tax return, showing gross W-2 wages of $81,268.

On August 18, 2008, plaintiff filed a cross-motion seeking to increase the amount of income imputed to defendant based on the same allegations of alleged "in-kind benefits [defendant] receives from his employer . . . ." Plaintiff also asked the judge to determine "the true amount of taxes that [d]efendant pays including that he claims the child as a tax exemption [in] alternating years . . . ." Plaintiff further sought to compel defendant to pay his share of the child's unreimbursed medical expenses pursuant to the agreement.

In support of her request to recalculate defendant's income, plaintiff submitted the same chart that her attorney had included in her prior "position paper," this time accompanied by a copy of defendant's expense "ledger" from January 1, 2001 through July 30, 2007. Plaintiff once again claimed that those records demonstrated that defendant did not consistently pay a monthly mortgage expense; nor did he pay the property taxes on the marital home. Plaintiff again asserted that defendant's parents, who owned the company by which he was employed, paid these expenses on defendant's behalf.

Plaintiff repeated her contention that the income defendant saved by avoiding those financial obligations should be imputed as "in kind benefits" to increase his income for child support calculation purposes. Plaintiff's certification did not address why these allegations regarding defendant's income, which were based upon records dating back to January 2001, had not been addressed in the parties' 2006 agreement.

Defendant filed a reply certification once again denying plaintiff's claims, reiterating that the trial judge had already reviewed and rejected those claims, and certifying that he had paid plaintiff for his share of the child's unreimbursed medical expenses for which she had provided documentation.

On September 12, 2008, the trial judge entered an order setting defendant's child support obligation at $185 per week, and issued a letter opinion stating the following:

With regard to the [m]otion, there is no dispute that [plaintiff] remarried as of May 14, 2008. Accordingly, alimony is terminated as of that date.

With regard to the [c]ross[-][m]otion, that is denied. My December 21, 2007 letter clearly indicates "the only change in circumstances is the change in alimony[.]" I also indicated in that letter that plaintiff's arguments with regard to income dealt with circumstances which existed prior to the entry of the final judgment of divorce and accordingly, did not constitute a change in circumstances.

In my view, my December letter is clear. Also in my view, it clearly disposes of the issues raised by the plaintiff in her cross-motion. In light of the fact that these arguments had previously been raised and ruled upon by the court, I find it appropriate to grant the defendant's applications for fees in this matter.

Moving forward, the child support amount will be $185 as set forth in the attached worksheet. For the record, that worksheet simply carries over the income assumptions which were appended to my December 21, 2007 [o]rder. However, the alimony provision is eliminated.

On September 25, 2008, defendant's attorney submitted a certification seeking fees in the amount of $3600 plus a $30 filing fee. On October 14, 2008, the judge issued an order awarding defendant counsel fees and costs of $3630.

Prior to entry of that order, plaintiff filed a motion on October 6, 2008, seeking reconsideration of the September 12, 2008 order. Plaintiff requested oral argument on this motion. Respecting child support, plaintiff claimed that "[d]efendant's income has never been determined -- it has always been approximate and the assumptions keep getting carried over from one set of calculations to the next." With regard to the counsel fee award to defendant, plaintiff asserted "no bad faith at all on [her] part . . . , which is only a small portion of the standard the court is required to review prior to making a counsel fee award in family matters."

Defendant filed a cross-motion to deny plaintiff's reconsideration request and to correct the Child Support Guidelines Worksheet to reflect the health insurance premium he pays on behalf of the child. Defendant also requested oral argument.

On November 14, 2008, without hearing oral argument, the trial judge entered an order denying plaintiff's motion for reconsideration and defendant's cross-motion, and appended a statement of reasons, which included the following:

Plaintiff's [m]otion for [r]econsideration is denied. Merely reiterating previous arguments is not persuasive or substantive grounds to reconsider the court's prior ruling. The tax exemptions and defendant's income has [sic] been conclusively addressed in the December 21, 2007 and September 12, 2008 [o]rders. Accordingly, [p]laintiff's [m]otion for [r]econsideration is summarily denied.

Defendant's motion for recalculation of child support with consideration given to the health insurance paid is denied. In my view, the resulting deduction is de minim[i]s. Also, although filed as a cross[-]motion, it is out of time for a reconsideration application.

Both applications for attorney's fees are denied.

The request for oral argument is denied. Although R. 5:5-4(a) may be regarded as favoring the granting of argument when requested, in this matter there exist no conflicting substantive or significant legal issues. R. 1:6-2(b). These issues have been conclusively addressed in this motion as well as in [o]rders dated September 12, 2008 and December 21, 2007.

On appeal, plaintiff raises the following issues for our consideration: (1) the trial judge erred in failing to hold oral argument; (2) the trial judge failed to consider the pertinent factors set forth in statute and court rule governing counsel fee awards; and (3) the trial judge "abused [his] discretion" by failing to address her "request to determine defendant's income and tax allocations once a change of circumstance was shown[.]" Having considered these contentions in light of the record and the controlling legal principles, with the exception of the counsel fee award which will be further discussed below, we affirm.

Plaintiff first contends the trial judge erred by not allowing oral argument pursuant to Rule 1:6-2(d), which provides, in pertinent part, that "except as otherwise provided by R. 5:5-4 . . . , no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs." Rule 5:5-4(a) governs motions in "family actions" and provides that "in exercising its discretion . . . , the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions . . . ."

Plaintiff appears to address this argument both to the motion and cross-motion returnable on September 5, 2008, as well as to her motion for reconsideration. In those earlier motions, defendant stated that oral argument was "not requested at this time unless opposition is filed." Plaintiff's cross-motion stated that oral argument was "not requested unless the court deems it necessary and appropriate due to the issues presented herein."

As plaintiff never specifically requested oral argument on her cross-motion, she cannot now complain that the trial judge decided it on the papers. Moreover, we are satisfied that the judge's reasons for deciding those motions without allowing oral argument are adequately supported by the record. R. 2:11-3(e)(1)(A).

With respect to plaintiff's motion for reconsideration, in which she did expressly request oral argument "pursuant to Rule 1:6-2[,]" it is clear that the trial judge determined no such argument was necessary. We concur with this conclusion. In support of her request for "reconsideration of the . . . order dated 9-12-08[,]" plaintiff's attorney filed a certification asserting that the order did not address plaintiff's requests (1) to "calculate child support based on the true taxes [that] defendant pays" in the years in which he claims the parties' child as a tax exemption; (2) to compel defendant to pay the child's unreimbursed medical expenses; and (3) for counsel fees.

Counsel also asked that "plaintiff's request to review defendant's income . . . be reconsidered." Counsel claimed that "the question of what is defendant's true income as of the time of recalculation of support was properly brought before the court[,]" and was not addressed in the prior order.

By the time the trial judge received plaintiff's motion for reconsideration he was very familiar with the issues presented, particularly as this was plaintiff's third effort to re-visit the issue of defendant's income. A motion for reconsideration must state "the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred."

R. 4:49-2. "Reconsideration is a matter within the sound discretion of the [c]court, to be exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

A litigant should not seek reconsideration merely because of dissatisfaction with the decision of the [c]court . . . . Reconsideration should be utilized only for those cases that fall into that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence. Said another way, a litigant must initially demonstrate that the [c]court acted in an arbitrary, capricious, or unreasonable manner, before the [c]court should engage in the actual reconsideration process. [Ibid.]

Where, as here, "[n]o new facts had been uncovered by plaintiff which would warrant . . . [a] motion for reconsideration[,]" denial of such a motion pursuant to Rule 4:49-2 is "correct[] . . . ." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Review of plaintiff's motion for reconsideration reveals only her "dissatisfaction with" the trial judge's prior decision. D'Atria, supra, 242 N.J. Super. at 401. She brought no "'new or additional information to the [c]court's attention which [she] could not have presented on the first application . . . .'" Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401).

Regarding defendant's income and the tax exemption issue, plaintiff simply reiterated the allegations in her prior papers. Regarding her cross-motion to compel defendant to pay his share of the child's unreimbursed medical expenses, plaintiff acknowledged that, "[a]fter the filing of her cross[-]motion, the defendant made payment." Thus, plaintiff expressly acknowledged that "the issue is moot."

Under these circumstances, we are satisfied that the trial judge correctly applied Rule 4:49-2 in denying plaintiff's motion for reconsideration. We affirm that decision substantially for the reasons set forth in the trial judge's memorandum of decision appended to his order of November 14, 2008; we are satisfied that those reasons "are adequately supported by [the] evidence . . . . " R. 2:11-3(e)(1)(A).

Finally, we address the award of counsel fees in the order of October 14, 2008. An award of counsel fees and costs in a matrimonial action rests within the sound discretion of the trial judge. Williams v. Williams, 59 N.J. 229, 233 (1971). The exercise of that discretion is governed by consideration of the factors set forth in Rule 5:3-5(c) which are:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

Although the trial judge did not issue a statement of reasons for this order, we are satisfied that the judge adequately addressed those reasons in his September 12, 2008 letter supporting his order of that date, which states: "In light of the fact that [plaintiff's] arguments had previously been raised and ruled upon by the court, I find it appropriate to grant the defendant's applications [sic] for fees in this matter." Thus, it appears the judge relied primarily upon the factor of "the reasonableness and good faith of the positions advanced by the parties[,]" R. 5:3-5(c)(3), in awarding counsel fees to defendant.

We have noted that "'where one party acts in bad faith, the relative economic position of the parties has little relevance' because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)). Where, as here, there was conduct in the litigation that was unwarranted and clearly motivated by bad faith, a counsel fee award was appropriate "to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees." Kelly, supra, 262 N.J. Super. at 307.

On three separate occasions, plaintiff persisted in seeking a re-calculation of defendant's income based upon allegations and documentation relating to circumstances that existed for several years prior to their 2006 agreement. In his December 21, 2007 decision the judge put plaintiff on notice that she had failed to establish a change in circumstances. Nonetheless, plaintiff filed a cross-motion in August 2008 and a motion for reconsideration on October 6, 2008, both of which continued to seek the same relief based upon the same allegations. As a result, defendant was compelled to incur "unnecessary costs" for which he is entitled to be reimbursed. Yueh, supra, 329 N.J. Super. at 461. Under these circumstances, we find no abuse of discretion in the counsel fee awarded to defendant. Williams, supra, 59 N.J. at 233.



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