On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-319-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Payne and Messano.
Defendant William M. Chrisman appeals from the Family Part's order of March 18, 2009 that denied his motion for reconsideration of an earlier order entered on January 12. We have considered the arguments raised in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion.
Defendant and plaintiff Karin L. Chrisman, n/k/a Karin L. Suter, were married in 1987 and divorced in 2006. Defendant is the parent of primary residence for the couple's daughter who lives with him in New Orleans. Plaintiff's child support obligation was set at $64 per week due to the fact that she was declared disabled by the Social Security Administration (SSA) and had a limited income. While the couple's daughter was a minor, defendant received $821 per month from SSA on her behalf.
In August 2008, defendant moved for modification of plaintiff's child support obligation. The couple's daughter had turned eighteen in December 2007 and was no longer eligible for SSA assistance. In addition, defendant alleged that his daughter had enrolled in Tulane University, and he sought contribution from plaintiff for college costs and expenses.
Plaintiff opposed the motion and cross-moved seeking enforcement of provisions of the judgment of divorce regarding equitable distribution of personal property; an order emancipating the couple's daughter; and counsel fees.*fn1
Apparently, in a separate motion, plaintiff also sought an upward modification of her alimony.*fn2
Oral argument on the motion and cross-motion was carried several times for reasons unexplained by the record. On January 8, 2009, counsel for both parties appeared before the Family Part judge. After defense counsel synopsized the relief sought by the motion, plaintiff's counsel, who apparently was new to the case, argued that defendant had failed to establish that his daughter was actually enrolled at Tulane and the costs associated with the school. Plaintiff's counsel further contended that the couple's daughter should be deemed to be emancipated, and that plaintiff was unable to pay any additional child support. Plaintiff's counsel further noted that defendant was $6000 in arrears on his alimony obligations, after having earlier accrued a $9000 arrearage.
In her decision delivered immediately after oral argument, the judge concluded that defendant had failed to establish a "prima facie" case regarding the payment of college expenses, and, therefore, a plenary hearing pursuant to Newburgh v. Arrigo, 88 N.J. 529, 543 (1982), was not required. She denied defendant's request without prejudice. The judge never directly addressed defendant's request for an increase in child support based upon the termination of his daughter's SSA payments. The judge did, however, indicate that she was accepting the determination made by SSA that plaintiff was "unable to work."
The judge denied plaintiff's request for a modification of alimony concluding there was no "showing of changed circumstances." The judge further ordered that equitable distribution of personal property by "lottery," as set forth in the judgment of divorce, should take place by April 1.
Turning to plaintiff's request for counsel fees, the judge concluded that defendant had the greater ability to pay given plaintiff's limited financial resources. In discussing the relative good faith of the applications, the judge determined that defendant was in arrears on his alimony payments, and that he should "have come to the [c]court with clean hands, having paid everything he owed . . ., and that would have been a good faith position." She granted plaintiff's request for attorney's fees pending a certification from counsel.
The order of January 12, 2009 essentially embodied the judge's oral decision. It denied without prejudice defendant's request for contribution toward college expenses, ordered the personal property "lottery" to take place by April 1, denied plaintiff's request to declare her ...