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Friedman v. Friedman

June 21, 2010

JOEL A. FRIEDMAN, PLAINTIFF-RESPONDENT,
v.
MICHELLE P. FRIEDMAN (N/K/A FRANK), DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-495-00D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 3, 2010

Before Judges Stern, Graves and J. N. Harris.

Defendant former wife appeals from orders of the Family Part entered on June 17 and August 3, 2009.*fn1 In the former child support was decreased, and in the latter reconsideration was denied.

The parties have two children, now fifteen and twelve years old. By "consent order" dated July 6, 2004, the parties agreed that "plaintiff shall pay child support in the amount of $245.00 per week" effective June 16, 2004, based on the child support guidelines. In January 2009, defendant moved for "a recalculation of plaintiff's child support obligation based upon the income as reported in his 2007 tax return" as adjusted "for his income in excess of the Guidelines as well as expenses he has deducted that are not permitted." In an order filed March 9, 2009, the judge ordered the recalculation would occur. The order further denied defendant's request that the recalculation be "retroactive to January 3, 2008," but made it "retroactive to November 1, 2008."*fn2 By order dated May 4, 2009, defendant's motion for reconsideration was denied, and previously ordered discovery was completed in advance of a plenary hearing scheduled for May 8, 2009. Following that hearing, plaintiff was ordered to produce his 2008 income tax return.

On June 17, 2009, the Family Part judge set the revised child support, under the Child Support Guidelines, at $235 a week, retroactive to November 1, 2008. In fixing the amounts, the judge determined that defendant pay twenty-two percent of the unreimbursed medical expenses.*fn3

Defendant makes a number of arguments addressed to the use of inappropriate figures within the meaning of the Guidelines, asserts the amount set was wrong, and claims the judge erred in setting the amount and in setting the retroactive date for the decreased amount. She also claims the original return date on plaintiff's motion should have been adjourned because she did not have counsel and that the request for oral argument on the motion for reconsideration should have been granted when she retained counsel.

The motion for reconsideration of the June 17 order, dated July 2, 2009, requested oral argument,*fn4 and on July 23, 2009, one week before the July 31 return date, a substitution of counsel was filed. Leonard K. Busch was substituted for the pro se defendant. The August 3, 2009, order provided that defendant's motion for reconsideration was denied except for the request that the court "set forth on the record its findings of fact and conclusions of law relative to the relief requested herein." In his oral statement of reasons the judge noted defendant "has failed to provide the Court with either case law" or any fact "the Court overlooked or erred" in considering. The judge, in essence, further stated that he set the $235 figure in accordance with the Guidelines.

We remand for further proceedings at which issues related to the amount of child support and the effective date or dates of adjustments are established after the court conducts oral argument addressed to those subjects. Without faulting the Family Part judge for hearing the original motion as scheduled, defendant was entitled to oral argument because it was requested on the motion for reconsideration. R. 5:5-4(a). The issues raised on the motion for reconsideration did not deal with a discovery or calendar issue. Defendant was entitled to argument on the motion as it was timely requested in the notice of motion, and the fact she had counsel for the motion may have had an impact. There is no dispute argument was requested. Hopefully argument will focus on the issues, let the parties address them, and result in a statement of findings and reasons therefor. In order to aid the consideration of issues on remand, we note our concerns regarding the Family Part judge's prior conclusions.

The judge stated at the hearing of June 12, 2009, that although he had not yet recalculated the child support, his recalculation of child support would be based on plaintiff's 2008 tax return, and addressed the figures therefrom and Guidelines at length. The judge stated that, within a few days, he would recalculate the child support obligations based on the figures reviewed and that the revised child-support obligations would be retroactive back to November 1, 2008. On June 17, 2009, he issued the order which, retroactive to November 1, 2008, set plaintiff's support obligation at $235 per week. There was no statement of reasons addressed to the figures used.

In his decision on the motion for reconsideration hearing the judge noted that plaintiff had chosen to represent herself at the May 2009 plenary hearing. He then recounted that defendant, on several times, at least two to the Court's memory when motions were pending, the defendant was requesting postponements of the motions to permit her to retain services of attorney. She never did so.

Even after the filing of this motion for reconsideration, she apparently contacted the law firm of Busch and Busch asking them, retaining them to be with her on oral argument. The Court declined to grant the oral argument; instead opting to decide this motion for reconsideration on its papers.

Addressing the merits of defendant's motion for reconsideration of the June 2009 child support order, the judge noted that he had conducted a plenary hearing on May 8, 2009, and then another hearing on June 12, 2009, where defendant was asked if she wanted to add any further response or information in support of her motion in recalculation of child support, and she declined. The Family Part judge explained that he was rejecting the motion for reconsideration because the defendant had failed to provide the Court ...


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