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K.L-J. v. J.J.

March 22, 2010

K.L-J., PLAINTIFF-APPELLANT,
v.
J.J., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1157-97.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 26, 2010

Before Judges Parrillo and Ashrafi.

Plaintiff K.L-J. appeals from several orders fixing child and spousal support. She contends that the Family Part erred in declining to make the orders retroactive to the date she first filed a motion for support and in imputing income to her that she is not capable of earning because of medical disability. Defendant J.J. participated in the hearings in the Family Part and attended oral argument before us but has not filed a brief. We have reviewed the record on appeal and now affirm the Family Part's orders.

The parties were married in 1994. They have one child together, born in 1995. Plaintiff-wife filed a complaint for divorce in January 1996. In February 1997, she obtained a final restraining order against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and he was barred from the marital home. The restraining order gave temporary custody of the child to plaintiff and ordered defendant to pay $62 per week for child support.

Plaintiff filed a number of motions in the divorce action, but she never sought a final judgment of divorce. The court dismissed the divorce action in May 1999. More than eight years passed without further court proceedings between the parties. At some point between February 1997 and the fall of 2007, but not otherwise specified in the record, the parties reconciled, and defendant moved back into the marital home.

In October 2007, plaintiff sought child and spousal support. She informed court staff that a restraining order had been previously entered, and, as a result, her application for support was docketed under the 1997 domestic violence case. She appeared in court before Judge Michael J. Haas on November 9, 2007. The judge noted that plaintiff's application was for long-term, ongoing support, rather than emergent financial support, and he had no information regarding the parties' financial circumstances. The judge dismissed plaintiff's application without prejudice to plaintiff refiling it with a case information statement (CIS), setting out her income, assets, and expenses. He also directed defendant to prepare and file a CIS. The judge entered an amended final restraining order addressing some issues concerning parenting time and personal property.

Plaintiff then refiled her motion on December 13, 2007, seeking child support and further amendments of the restraining order, but this time she did not specifically request spousal support. Each party filed a CIS, although without complete information. Judge Haas took testimony from the parties on January 4, 2008, granted amendments of the restraining order, and ordered defendant to pay child support in the amount of $150 per week effective from that date.

About five months later, defendant filed a motion to amend the order to permit biweekly rather than weekly payment of his child support obligation. In response, plaintiff filed a cross-motion for spousal support and other relief. When the parties appeared before Judge Haas on July 11, 2008, he granted some of the relief requested by each party but denied without prejudice plaintiff's motion for spousal support, again because of insufficient financial information. The judge also concluded that, in the circumstances of this case, plaintiff's motion for spousal support should be made as a separate claim from the domestic violence matter.

On September 30, 2008, plaintiff filed a complaint for spousal support as a separate, family court matter. Judge Jeanne T. Covert reviewed the financial information filed by the parties and otherwise heard plaintiff's application on November 18, 2008. On the same date, the judge issued an order for spousal support of $163 per week retroactive to September 30, 2008, the date the motion before her was filed. Judge Covert also recalculated and reduced defendant's child support obligation to $136 per week because payment of spousal support altered the parties' relative incomes.

Defendant then moved for reconsideration of Judge Covert's order, requesting that the court impute additional income to plaintiff. The parties appeared before Judge Covert on January 20, 2009. After hearing from the parties and considering documentary evidence, including plaintiff's documentation of her medical disability, Judge Covert concluded that plaintiff did not have sufficient evidence to support her contention that she could not work. The judge accepted plaintiff's documentation indicating that she was 75% disabled, for which she received benefits of $1,655 per month. Based on that documentation and her determination that plaintiff had not proven 100% disability, the judge imputed an additional 25% of income to plaintiff using Department of Labor charts. As a result of her findings, Judge Covert reduced the order of spousal support to $100 per week, also stating in her order that spousal support should in the future be addressed under the domestic violence docket.

Subsequently, Judge Covert issued an administrative order on February 9, 2009, closing the file before her and ordering that future issues between the parties be ...


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