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Arlene Owens v. Martin Owens

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 4, 2011

ARLENE OWENS, PLAINTIFF-RESPONDENT,
v.
MARTIN OWENS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-857-99G.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2011

Before Judges Yannotti and Skillman.

Defendant Martin Owens appeals from certain provisions in post-judgment orders entered by the Family Part in this matrimonial action on August 19, 2009, and November 20, 2009. We affirm.

Plaintiff Arlene Owens filed a complaint for divorce on October 16, 1998. The court entered a final judgment of divorce dated April 5, 2001, which provided, among other things, that defendant would pay plaintiff permanent alimony in the amount of $425 per week. The order additionally provided that defendant would pay plaintiff child support in the amount of $127 per week for the parties' three children, with such payments to continue until each child became emancipated.

In 2009, plaintiff filed a motion in the trial court to enforce various provisions of the judgment. In a certification submitted in support of her motion, plaintiff asserted that defendant had been delinquent in paying alimony, child support and other expenses. Plaintiff sought a declaration that the amount due from defendant, including counsel fees, was $206,575. Plaintiff also sought an award of counsel fees for the motion.

The trial court entered an order dated August 19, 2009, granting in part and denying in part the relief sought by plaintiff. The order stated that defendant was obligated to pay plaintiff $50,483, which consists of child support arrears in the amount of $12,128; alimony arrears of $3,543; utility and maintenance reimbursement in the amount of $28,388; and $6,424 for defendant's share of the children's medical expenses. Defendant was required to pay that amount within thirty days of the date of the order.

The order additionally stated that counsel fees are awarded to plaintiff, in an amount to be determined. Plaintiff's counsel was directed to submit a certification of services within fourteen days. The court subsequently entered another order awarding plaintiff counsel fees in the amount of $12,093.20.

By letter dated September 28, 2009, defendant asked the court to permit him to submit a cross-motion out of time. In his accompanying motion, defendant asked the court to reconsider and vacate the August 19, 2009, order. In his supporting papers, defendant stated that he was entitled to a credit of $15,728.01 in child support payments, which he said should be applied to the alimony arrears.

Defendant also stated that plaintiff had not provided sufficient proof to support her claim for utility and maintenance reimbursement and a share of the children's medical expenses. In addition, defendant asked the court to reconsider the award of counsel fees to plaintiff, stating that he did not have the funds to pay such fees.

On October 10, 2009, plaintiff filed a notice of cross-motion, seeking an order: denying defendant's motion for reconsideration; requiring defendant's ongoing alimony obligation to be paid by wage garnishment; and awarding plaintiff counsel fees and costs related to defendant's motion. In a certification submitted in support her cross-motion, plaintiff stated that defendant was a very successful executive, who has at times earned more than $100,000 per year. Plaintiff noted that defendant had not provided any proof that he was disabled.

Plaintiff also stated that she has been totally disabled since 1985 as a result of various physical ailments and illnesses. She asserted that, because defendant had not paid alimony as required by the final judgment of divorce, she had become "reliant and indebted" to her parents, who were elderly, disabled and frail. In addition, plaintiff disputed defendant's assertions regarding her claims for child support, the children's medical expenses, and the utility and maintenance costs. She further asserted that her counsel fees continued to rise due to defendant's failure to comply with the court's orders.

In response to plaintiff's cross-motion, defendant filed a certification in which he stated that he had been on disability from April 2007 to March 2008; his home was in foreclosure proceedings; he had $300,000 in credit card and second mortgage debts; and he was living on a $70,000 income. Defendant did not dispute plaintiff's disability but said that her "actual limitations" were "questionable." He also said that plaintiff had not substantiated her demand for utility and maintenance costs and for a share of the children's medical expenses.

Defendant stated that he had submitted proof that he had paid all of his alimony and child support obligations and was owed a credit.

The court entered an order dated November 20, 2009, which denied defendant's motion for reconsideration. The order stated that defendant's motion had been filed out of time. The order also stated that defendant had not shown any basis for reconsideration of the August 19, 2009, order.

In addition, the order denied defendant's motion for an evidentiary hearing, and granted plaintiff's application to have defendant's on-going alimony obligation paid through wage garnishment. Plaintiff's motion for a further award of counsel fees and costs was denied without prejudice because it had not been supported by a certification or affidavit of services from her attorney.

Defendant appeals and argues that: (1) the trial court erred by denying his motion for reconsideration because he did not have the necessary documentation to support his motion and provided sufficient reasons to allow the court to consider the application out of time; (2) plaintiff was not entitled to alimony or child support arrears from December 1, 1999 through April 2, 2001 because the court had previously denied plaintiff's demand for retroactive support to the date of trial; (3) the court erred by failing to give him a credit of $15,564, which represents a portion of the proceeds from the sale of the marital property, which should have been paid to a special needs trust for the children and allocated to his child support obligation; (4) the matter should be remanded for a hearing on plaintiff's demands for utility and maintenance costs, and the children's medical expenses; (5) the counsel fee award should be set aside because plaintiff's attorney failed to submit a certification of services within the time required by the court's order; (6) enforcement of the court's orders should be stayed; and (7) the alimony obligation should be reduced or eliminated until he is able to get back to work.

We have thoroughly reviewed the record and conclude that defendant's contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we note the following.

Here, the trial court found that defendant owed $50,348 for alimony, child support, utility and maintenance expenses, and his share of the children's medical expenses. A trial court's findings of fact are binding on appeal when supported by adequate, substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, our deference to fact-finding by Family Part judges is warranted because "matrimonial courts possess special expertise in the field of domestic relations." Id. at 412. We are satisfied that plaintiff presented sufficient credible evidence to support the trial court's findings regarding the amounts owed by defendant.

We are additionally satisfied that the trial court did not abuse its discretion by awarding plaintiff counsel fees and costs related to her motion. The award of counsel fees and costs in a matter in the Family Part is committed to the sound discretion of the trial court. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2005). In this case, the court found that the award was warranted because plaintiff acted in good faith in seeking enforcement of defendant's financial obligations under the final judgment of divorce. The record supports that finding.

We find no merit in defendant's argument that counsel fees and costs should not have been awarded because plaintiff's attorney did not submit a certification of services within fourteen days, as required by the court's August 19, 2009, order. In our view, the court did not abuse its discretion by awarding plaintiff counsel fees and costs based on counsel's certification of services, even though it had not been timely filed.

We also find no merit in defendant's appeal from the court's order of November 20, 2009, which denied his motion for reconsideration. We note that, in that order, the court stated that defendant's motion for reconsideration was untimely because it had not been submitted within the time required by Rule 4:49-2. Even so, the court ruled on the merits of the motion, finding that defendant had not established a basis for reconsideration of the August 19, 2009, order.

A motion for reconsideration is committed to the sound discretion of the court, and the court should exercise this discretion in the interests of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). We are satisfied that the record supports the court's determination that defendant failed to present sufficient evidence for the court to alter its earlier findings regarding the amounts owed or to reduce or eliminate on a prospective basis defendant's alimony obligation.

We also find no merit in defendant's contention that the court should have conducted an evidentiary hearing regarding plaintiff's demand for reimbursement of utility and maintenance expenses and defendant's share of the children's medical expenses. A plenary hearing is required only when there are material facts in dispute that cannot be resolved based on the motion papers. Tretola v. Tretola, 389 N.J. Super. 15, 20 (2009). Here, plaintiff presented sufficient evidence to support her claims and an evidentiary hearing was not required to resolve defendant's opposition to the claims.

Affirmed.

20110204

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