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Arlene Owens v. Martin Owens

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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