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Palombi v. Palombi

July 8, 2010

MICHAEL PALOMBI, PLAINTIFF-APPELLANT,
v.
SUSAN PALOMBI, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-47-06.

The opinion of the court was delivered by: Espinosa, J.S.C.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted November 5, 2009

Before Judges Axelrad, Sapp-Peterson and Espinosa.

Rule 5:5-4(a) provides that a court should ordinarily grant requests for oral argument on "substantive" motions. In this appeal from six post-judgment orders, Michael Palombi (Michael) argues that he should have been granted oral argument and a plenary hearing because his motions concerned "substantive" issues. Whether a trial court has properly exercised or abused its discretion in denying oral argument does not, however, turn solely on the subject matter of the motion. After considering the circumstances relevant to the denials of oral argument here, we affirm.

Michael and defendant Susan Palombi (Susan) were married in May 1997. They had one child, "Carly,"*fn1 born in 1989, and Michael adopted Susan's two children from a prior relationship. Michael filed for divorce in July 2005 and Susan filed a counterclaim. Following a three day trial in December 2006, a dual judgment of divorce (JOD) was entered with a written opinion (the JOD opinion) deciding all issues in April 2007. In that decision, the court stated that custody of Carly was not an issue because she was eighteen years old. Nevertheless, the court found that she was not emancipated and required Susan to pay child support because she was still a high school senior and resided with Michael. The JOD also required Michael to pay alimony to Susan.

In January 2009, plaintiff Michael Palombi (Michael) appealed from a series of post-judgment orders entered in this matrimonial case from May through November 2008. The relevant motions and orders appealed from can be briefly summarized*fn2 as follows:

May 30 and July 24, 2008 orders

Susan filed the first post-judgment motion, asking the court to transfer custody of Carly to her (although there had been no award of custody in the JOD), to terminate her child support obligation, and award her child support. The thrust of Susan's argument was that Michael had moved out of the apartment he had shared with Carly and provided no support for her since January 2008. Michael cross-moved for reimbursement of certain expenses for Carly. The trial court denied both motions, finding that neither party presented sufficient evidence to warrant the relief sought. Because Carly was now nineteen years old, the court concluded that it was her decision to choose where she would live. As to the support issue, the court stated,

Because the parties certify that [Carly] no longer resides with either parent, the court shall terminate child support, although the parties' obligations as to [Carly's] medical and college expenses remain in effect as per the final judgment of divorce and P.S.A. Defendant's child support obligation is terminated effective April 18, 2008, the date defendant filed her motion.

It was undisputed that Carly no longer lived with Michael.*fn3 In its written decision, the court explained that no oral argument had been granted because "the parties' submissions were inconclusive" on the financial issues, Carly was capable of making her own choice regarding residence, and, therefore, significant substantive issues were not raised.

On July 24, 2008, the court entered an amended order to adjust Michael's monthly alimony obligation to $1118 to reflect arrears reported by the probation department and to order Susan to make monthly payments of $100 toward her arrears in her child support payments. Michael did not appeal from the court's orders of May 30 and July 24, 2008 until this appeal, as part of his challenge to six post-judgment orders.

August 8, 2008 order

Susan filed a motion to enforce litigant's rights, seeking the enforcement of the May 30 order as well as an award of child support from Michael. The court explained that no oral argument was held because Susan did not request argument and the motion was unopposed. Michael had written to the court, explaining that he had been unable to respond in a timely manner because he was away for his wedding at the time the motion was sent to him and that he was unable to contact the court upon his return because the judge was away. Although viewing the motion as unopposed, the court nevertheless considered the contents of Michael's letter and observed that he did not request an adjournment of the motion to afford him an opportunity to respond properly.

In an extensive written statement of reasons, the court granted Susan's motion to enforce the May 30 order. The court also granted Susan's request for child support, based upon the facts that Carly was not emancipated, was residing with Susan and was supported by her. Because neither party had submitted a case information statement (CIS) as required by Rule 5:5-4(a), the court based the award of $238 per week on the financial information submitted at the time of divorce in April 2007. The court granted in part Susan's request for reimbursement of child support overpayments, limited to any overpayment that occurred as the result of Michael deducting child support from his alimony obligation since April 18, 2008, when Susan's support obligation terminated. The court also granted Susan's request for $204.13 as Michael's proportionate share for Carly's college textbooks in enforcement of the May 30 order. The court denied Susan's remaining requests for reimbursement of medical and other expenses.

August 21, 2008 order

Michael filed a motion to terminate alimony based upon changed circumstances while Susan's motion to enforce litigant's rights was pending. He failed to file either a current CIS or a copy of a prior CIS as required by Rule 5:5-4(a).

His motion rested largely upon his own certification, in which he disagreed with some of the trial court's findings and conclusions in the JOD opinion; asserted that his economic situation had worsened; that he would earn an annual salary of $55,000 in 2008, less than the $112,500 in income imputed to him by the court; that he had additional financial responsibilities as a result of his re-marriage; and that Susan received a raise every year of her employment with Bear Stearns. He supported his claim of changed financial circumstances with miscellaneous documents that purported to illustrate such change but which failed to present the comprehensive financial information provided by a CIS or sufficient data to permit a comparison of his financial conditions at the relevant times. In addition, Michael submitted a medical history prepared by an orthopedic surgeon, Dr. Robert A. Kayal, regarding his medical condition since 2005 that included a speculative prognosis about Michael's employment-related risk of permanent injury.

In a written opinion, the trial court concluded that Michael's application was insufficient to establish a prima facie case of changed circumstances to warrant further consideration of his motion and discovery. The court explained:

Plaintiff's application is denied because of the insufficiency of his application. He has provided neither his current [n]or his prior C.I.S. and therefore the court has no ability to assess his financial circumstances. Although the letter from Dr. Kayal provides some support for his assertions as to his medical conditions, it appears that the health problems Plaintiff suffers from are largely those he experienced at the time the current support order was entered on April 16, 2007. Plaintiff provides no showing that any recent medical procedures or issues indicate a new condition or how he has experienced a change in his medical conditions from the time of the divorce. Plaintiff's assertions as to how the current economic climate has affected his capacity to earn provide no showing of permanent changed circumstances; nor does he support his assertions with adequate proofs. Plaintiff has therefore made no prima facie showing of changed circumstances, and his application is denied. [(Emphasis added).]

Susan filed a cross-motion seeking, inter alia, increases in alimony and child support. Her motion ...


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