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Katherine S. Galaida v. Michael R. Galaida

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 14, 2011

KATHERINE S. GALAIDA, PLAINTIFF-APPELLANT,
v.
MICHAEL R. GALAIDA, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-278-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2011

Before Judges Grall and C.L. Miniman.

Plaintiff Katherine S. Galaida appeals from an order denying her motion for reconsideration of a prior order and enforcing provisions of the parties' property settlement agreement. She also appeals a subsequent order stating defendant Michael R. Galaida's obligation to contribute to their son's private school tuition. We affirm.

The order plaintiff asked the judge to reconsider concerned child support for their son. It was entered on February 5, 2010. Although defendant was unemployed at the time, the judge imputed $600 per week income, equivalent to that reflected on the pay stubs from his prior employer. The judge calculated child support on the basis of a shared parenting arrangement because he determined that defendant had two overnight visitations every week. He therefore ordered defendant to pay $40 per week child support.

Plaintiff filed a motion for reconsideration dated March 12, 2010. At oral argument on the motion, plaintiff's attorney represented that he had not received the order mailed to him by the court but had obtained it via fax at his request at a much later date. The court accepted the representation and addressed the merits.*fn1

The judge issued a written statement providing his reasons for denying the motion for reconsideration. Reiterating the reasons for the February 5 order and explaining that plaintiff had failed to identify any facts or legal arguments presented that he had overlooked, the judge followed Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). As plaintiff has not provided the documents submitted on the February 5, 2010 order, we are not in a position to review the judge's discretionary determination regarding reconsideration and have no alternative other than to affirm on the ground that plaintiff has failed to establish error warranting relief. Society Hill Condominium Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002).

Despite the judge's denial of reconsideration, defendant acknowledged that plaintiff was entitled to a contribution from him toward the cost of their son's medical insurance. Accordingly, the judge made an upward adjustment of $2 per week to the child support award.

The judge also considered plaintiff's request to enforce defendant's obligation to contribute to the cost of their son's tuition to private school. That obligation was stated in their property settlement agreement and addressed in a subsequent order. The judge rejected plaintiff's argument about the amount defendant owed because she overlooked an amendment to the final judgment of divorce limiting defendant's obligation to $1,200 per year. The judge required defendant to pay that amount and therefore added $23 per week to defendant's child support obligation.

As a result of the adjustments for medical insurance and private school tuition, the judge raised defendant's child support by $25 per week, to $65 per week.

On appeal plaintiff argues:

I. THE TRIAL COURT IMPROPERLY VALUED THE PROPERTY SETTLEMENT AGREEMENT (PSA) AND FINAL JUDGMENT OF DISSOLUTION (FJOD) WITH REGARD TO VISITATION AND CHILD SUPPORT BY FAILING TO HONOR THE TERMS AND OBLIGATIONS BARGAINED FOR AND AGREED BY THE LITIGANTS IN 1999.

II. BEFORE THE PSA CAN BE DISTURBED THE TRIAL COURT MUST CONVENE A PLENARY HEARING BECAUSE THE CREDIBILITY OF THE MATERIAL MUST BE DETERMINED BASED UPON RELIABLE EVIDENCE.

III. THE COURT ERRED BY ASCRIBING CLERICAL ERROR TO PLAINTIFF'S ATTORNEY AND NOT CONSIDERING PLAINTIFF'S DOCUMENTS.

IV. BECAUSE AT ALL TIMES THE PLAINTIFF WAS HONORING THE PSA AND HAD TO ENFORCE RIGHTS THROUGH THE COURT SYSTEM, PLAINTIFF IS ENTITLED TO ATTORNEY'S FEES.

After considering the foregoing contentions in light of the record provided on appeal, we find the arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E). Plaintiff's perception of what her attorney said about receipt of the court's order and what the judge decided does not comport with our reading of the record.

And as to her claim that she was entitled to counsel fees, we simply note she did not request that relief in her notice of motion. We affirm the order substantially for the reasons stated by the judge in the written statement of reasons he issued with the April 30, 2010 order.

Affirmed.


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