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Gary Ullmann v. Mary Fran Ullmann

March 23, 2011

GARY ULLMANN, PLAINTIFF-APPELLANT,
v.
MARY FRAN ULLMANN, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-272-06-C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2010 - Decided Before Judges Fuentes,Ashrafi and Nugent.

Plaintiff ex-husband appeals from a post-judgment order dated January 15, 2010, pertaining to expenses he incurred for the parties' children. The Family Part relieved defendant ex-wife from reimbursing husband for work-related child-care expenses and for attorney's fees, and the court also denied husband a modest weekly offset of his alimony payments to wife until the amount she owes has been satisfied. We affirm in part and reverse in part.

The parties were married in 1991 and divorced in 2006. They have two teenage sons, born in 1993 and 1995. At the time of the divorce, they entered into a marital settlement agreement that was incorporated into their judgment of divorce. They agreed to have joint legal custody of the boys and husband to be the parent of primary residence. Wife was obligated to pay child support to husband, and husband to pay alimony to wife. The net result of the amounts fixed for those obligations is that husband must pay $350 per week to wife.

The agreement also requires that the parties share "at the rate of 37% by Wife and 63% by Husband" certain unreimbursed expenses for the boys. Paragraph 44a of the agreement states that husband shall submit to Wife his proof of payment of unreimbursed medical expenses, work related child care and/or camp costs incurred for the children, with a calculation of his request for reimbursement. Wife shall reimburse Husband within 30 days. If not so reimbursed, Husband shall be entitled to a credit against his alimony obligation in the amount of the reimbursement requested, unless Wife has provided written objection to the amount requested, along with the reasons for the dispute. In that event, the dispute shall be immediately submitted to arbitration . . . and the arbitrator shall determine the credit due to Husband.

After the divorce, husband submitted documentation and notes to wife seeking reimbursement for expenses of YMCA camp, medical and dental fees, babysitters, and other expenses. Wife made no payments to husband and also did not respond with a written objection. She objected orally to some of husband's claims, agreeing only to pay her share of the medical and dental expenses when she could afford to do so.

The parties negotiated personally and through attorneys but were not able to resolve the dispute. After wife indicated she could not afford to pay for an arbitrator as provided in the agreement, husband filed a post-judgment motion in June 2009 for an order requiring wife to reimburse designated expenses. Wife filed untimely opposition and also an untimely cross-motion to reduce her child support obligation and to increase her alimony payments. The Family Part heard oral argument on husband's motion and issued an order and oral decision on September 28, 2009.

The court ordered that wife reimburse husband a total of $10,088.29 for expenses of the children and for attorney's fees. That figure was comprised of $2,332.80 for child-care expenses, $1,484.05 for medical and dental expenses, $3,741.44 for camp expenses, and $2,530.00 for attorney's fees and costs. The court denied some of husband's requests for reimbursement and also denied his request for a deduction of $75 per week from his alimony payments until the amount owed by wife has been satisfied. In its oral decision, the court misinterpreted husband's motion as requesting that his alimony payments be reduced to $75 per week, rather than temporarily reduced by that amount to $275 per week until wife's debt is paid.

Both parties moved for reconsideration of the court's September 28, 2009 order. On January 15, 2010, the court granted in part wife's motion for reconsideration. It reduced her total obligation to $5,225.49 by vacating the parts of its earlier order that required reimbursement for child-care expenses and attorney's fees. The court denied husband's motion for reconsideration and again rejected his request to deduct $75 per week from his alimony payments. The court's order stated that wife's debt would instead be reduced to judgment against her. Husband filed a notice of appeal.

Husband argues that the court had no legal basis to reconsider its September 28, 2009 order for reimbursement because wife did not produce any new evidence and the court had not made any legal error in its prior decision. In its January 15, 2010 decision, the court stated it was vacating its prior ruling on child-care expenses because husband's "past filing, as it relates to the child care charges, is deficient." Husband's documentation for child-care expenses contained no statement or invoice from a child-care provider, no receipt or a copy of a paid check, and no other reliable document indicating that a child-care provider had been paid. His proofs consisted of only his own hand-written notes indicating hours for a babysitter and an hourly rate of pay. On the motion for reconsideration, the court reasonably viewed husband's proofs to be insufficient and decided to rescind its prior ruling.

"Reconsideration is a matter to be exercised in the trial court's sound discretion." Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). An appellate court will not disturb the trial court's decision to grant or deny a motion for reconsideration unless it has abused its discretion. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). We find no abuse of discretion in the court's reconsideration and ultimate denial of husband's request for reimbursement of child-care expenses without adequate proofs.

We come to a different conclusion with respect to the court's rulings concerning attorney's fees and husband's request to deduct the debt from his alimony payments.

The parties' agreement sets forth remedies for failure to make payments in accordance with the terms of the agreement. Paragraph 92 of ...


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