On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1225-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
Plaintiff, Robert L. Monetti, appeals from two orders of the Family Part entered on October 30, 2008; the first requires him to pay counsel fees in the amount of $57,453.50 and expert fees in the amount of $31,643.67 on behalf of defendant, Janine Monetti, n/k/a Janine Rocco; the second order denies his request for counsel fees of $33,958.44 and expert fees of $21,625.
These orders arose from the parties' post-judgment litigation over recalculating plaintiff's child support obligation for their two children in the wake of defendant's remarriage in February 2006. The parties ultimately resolved the adjusted child support amount by agreement, and further agreed to submit to the court the issue of their mutual requests for counsel and expert fees generated in the process. Although neither party requested oral argument on this issue, we are nonetheless constrained to reverse and remand for a hearing, since we are satisfied that the parties' submissions are so conflicting that the trial court could not properly render a decision based solely upon those submissions. Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968); see Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998).
The pertinent factual background may be briefly summarized as follows. The parties were divorced by a final judgment of divorce entered on June 24, 2004, which incorporated their property settlement agreement (PSA). Plaintiff's child support obligation was set in the PSA at $1153 per month, based upon his stipulated annual income of $210,000. Defendant's income was set forth as earning $26 per hour as a cosmetologist, and having earned $17,160 annually as an administrative assistant in plaintiff's business.
Defendant remarried on February 23, 2006, thereby terminating plaintiff's alimony obligation under the PSA. Between March and October 2006, the parties attempted to negotiate a revised child support amount. During that interim, they engaged in numerous disputes regarding plaintiff's parenting time with the children, as well as issues pertaining to the children's unreimbursed medical expenses, church attendance, travel, and counseling.
When the parties were unable to resolve the child support issue, defendant filed a motion on October 4, 2006, seeking that relief. She also sought discovery of plaintiff's financial records, including "his 2005 corporate tax returns, with all attachments, and verif[ication of] all information relevant to his current income (2006), including but not limited to, three current pay stubs, and all documents verifying earned and unearned income received by . . . defendant in 2006 . . . ."
The parties thereupon engaged in a two-year discovery battle, including the retention of financial experts to examine plaintiff's business records. Defendant maintained that plaintiff's annual earnings were between $800,000 to $1,000,000. However, neither plaintiff's business records nor defendant's own expert ever documented that level of earnings. In fact, defendant's forensic accounting expert advised her that plaintiff's projected earnings for 2007 were $407,294; this was based upon the expert's application of a three percent growth rate from plaintiff's 2006 earnings of $395,431.
One of the most contentious issues addressed in the parties' certifications was whether plaintiff had changed his accounting method in the middle of the discovery period, in an effort to diminish the profitability of his business.
Plaintiff certified that defendant's discovery requests were "piece meal[,]" adding:
An authorization was promptly signed permitting defense counsel to speak with my accountant once requested. I disrupted my entire business for four or five months which was an extreme financial burden to respond to the piece meal [sic] and ongoing requests of defendant's expert accountant who appeared to me to spend excessive time playing with numbers and who even attempted to change the business basis for reporting from the cash basis we have used for years to an accrual basis solely for litigation purposes. This vacillation required calculations on both the cash and accrual basis, and was a tactical decision by defendant and her accountant.
Kate Hartman, the controller of plaintiff's business certified to the "timeline" governing her submission of requested documents to defendant's expert, Rosenfarb Winters. Regarding the ...