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Rose M. Errante v. Gerard P. Schmidt


June 7, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1065-00.

Per curiam.


Submitted February 16, 2011 - Decided Before Judges Gilroy and Ashrafi.

Defendant Gerard Schmidt filed a notice of appeal from an order of the Family Part, Somerset County, dated August 14, 2009. Schmidt's pro se submissions do not include a copy of that order. Nor does the record provided on appeal include documents or transcripts of the trial court proceedings that were pertinent to arguments Schmidt raises in his brief. The inadequate record prevents us from addressing defendant's arguments. See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004); Society Hill Condominium Ass'n, Inc. v. Society Hill Assoc., 347 N.J. Super. 163, 177-78 (App. Div. 2002). We are constrained to dismiss the appeal because of the seriously deficient record.

Nevertheless, because there may be inconsistencies in the several orders entered in Somerset and Union County Family Parts, we add the following comments as guidance in the event of a future application filed in accordance with Rule 4:50-1 or other applicable court rule.

As best as we can tell from the record provided, defendant Schmidt and plaintiff Rose Errante were divorced in Somerset County in 2001. They have two children, a boy born in 1985 and a girl born in 1988. The parties' settlement agreement, which was incorporated into the judgment of divorce, required that Schmidt pay unallocated spousal and child support of $2,350 per month to Errante.

By order dated January 23, 2004, Judge Thomas Dilts in Somerset County declared the parties' son to be emancipated as of December 23, 2003. Judge Dilts ordered that Schmidt's motion for modification of child support be heard by a hearing officer. We have no indication of whether such a hearing was held.

The next item available in our record is a consent order of the parties executed by Judge Dilts on August 2, 2004. Under the terms of that order, Schmidt's obligation to pay unallocated support for Errante and the parties' daughter was reduced to $1,600 per month effective June 1, 2004. The parties agreed not to seek modification of the support amount until their daughter graduated from college, except in accordance with restrictive provisions of the consent order.

Schmidt conceded by the consent order that he was then $50,000 in arrears in support payments, but Errante agreed to accept $8,500 in full payment of those arrears provided that Schmidt paid the reduced amount in three installments by November 15, 2004. If Schmidt failed to make the payments as promised, or to pay the monthly unallocated support payment of $1,600, Errante could obtain a judgment for $50,000 against Schmidt and the unallocated support obligation would be restored to $2,350 notwithstanding the prior emancipation of the parties' son. Although we have not been provided a record of what occurred next, it appears that Schmidt did not make payments as provided in the consent order.

Chronologically, the next document in the record provided to us is an order executed by Judge Dilts on June 28, 2007, declaring the parties' daughter to be emancipated as of June 8, 2007, and fixing child support arrears before the date of emancipation at $2,600. The order also required that Schmidt pay the arrears at the rate of $100 per week. We have no record of whether those arrears were paid.

The next item provided in our record is a Union County child support enforcement order dated January 21, 2009, setting an ongoing child support obligation of $1,600 per month and arrears of $29,300 as of January 14, 2009. Another Union County document shows that on April 29, 2009, the court discharged a bench warrant for Schmidt and further indicated he was obligated to pay child support for two children of $1,600 per month and was $33,000 in arrears as of April 28, 2009. Without having a record of the reason for Union County's involvement, we presume that Schmidt's support obligation was being enforced through the Union County Probation Division because Schmidt was then residing in Union County.

As previously stated, Schmidt's current appeal is taken from a Somerset County order of August 14, 2009. Although we have not been provided a copy of the order, the transcript of the proceedings on that date indicates that Errante's attorney was present on the return date of cross-motions by the parties but Schmidt was not present. The judge attempted to contact Schmidt through the telephone number shown on his motion papers but the number had been disconnected. Indicating that she had reviewed the papers filed on the cross-motions and without hearing further argument by counsel for Errante, the judge made the following rulings:

1) denied Schmidt's request to terminate child support;

2) denied Schmidt's request to terminate spousal support;

3) denied without prejudice Errante's request to find that Schmidt had committed perjury;

4) granted Errante's request to enforce the August 2, 2004 consent order by reinstating and reducing to judgment the $50,000 in arrears owed by Schmidt as of the time of that order;

5) granted Errante's request that additional arrears be found in the amount of $37,740 and that amount also be reduced to judgment;

6) ordered that the Probation Division fix $87,740 as the total of support arrears as of July 30, 2009, and reduce that amount to a judgment against Schmidt;

7) directed Schmidt to pay all the arrears within thirty days;

8) denied without prejudice Errante's request for a bench warrant for Schmidt's arrest;

9) granted Errante's request to increase Schmidt's unallocated support obligation to $2,350;

10) granted Errante's request to compel Schmidt to pay previously-ordered attorney's fees of $5,249 to Errante's attorney;

11) granted Errante's request that collection and enforcement of the support obligation be transferred from Union to Somerset County;

12) granted Errante's request for additional attorney's fees of $1,547 to be paid by Schmidt within thirty days; and

13) denied Errante's request for reimbursement of the costs of a private investigator.

Additionally, all prior orders that were not in conflict with the rulings of August 14, 2009, would remain in full force and effect.

In his pro se brief, which repeatedly departs from the record provided, Schmidt argues that the August 14, 2009 rulings deprived him of constitutional rights because they neglected prior court orders, failed to accommodate his physical inability to attend court in Somerset County, and relied upon Union County court orders that were procured fraudulently by the attorney for Errante. Because Schmidt has attached neither the order nor the motion papers that resulted in the rulings listed, we cannot evaluate the merits of any of his arguments.

At the same time, we cannot determine what the basis was for the Union County child support orders indicating in 2009 that Schmidt had an ongoing child support obligation of $1,600 per month when both children had been declared emancipated in Somerset County by June 2007. Nor can we determine how the arrears were fixed at $33,000 in April 2009 when Judge Dilts's June 28, 2007 order terminated Schmidt's ongoing child support obligation and fixed arrears at $2,600 as of that date. If Schmidt had a continuing obligation to pay spousal support to Errante after the emancipation of both children, it would seem improper to characterize that obligation as child support for purposes of Union County enforcement orders. But without a record, we are not in a position to declare error.

Moreover, Schmidt's exhortation to us to exercise original jurisdiction under Rule 2:10-5 is made without an understanding of the function of an appellate court. We do not review Schmidt's brief as if it is factual evidence. The brief contains Schmidt's unsworn statements, untested in a courtroom and unsupported evidentially by the record provided to us. As with some pro se submissions, the brief is infused with lamentation about Schmidt's medical and other problems and invective against Errante's attorney and the judges who ruled adversely to him. For future reference, Schmidt should consider that he can be more persuasive with facts taken directly from the record, such as the contents of the orders we have described.

Schmidt's argument also appears to misconstrue the August 2, 2004 consent order. Handwritten additions to the consent order provided the following permissible terms and conditions for modification of Schmidt's support obligation:

8. Notwithstanding the above terms, the above unallocated amount may be reviewed by the court upon the occurrence of one or more of the following:

a) [The parties' daughter] does not attend college on a full time basis (except if partime [sic] attendance is due to medical reasons as may be determined/ approved by the court)

b) [The parties' daughter] does not reside with Plaintiff while she attends college

c) If Plaintiff becomes disabled.

Schmidt argues that he was entitled to stop his support payments because he became disabled and because the parties' daughter did not attend college full time. Assuming that the reference to "Plaintiff" in subsection c above was a typographical error that was intended to mean possible disability of defendant Schmidt, the provisions we have quoted are not self-executing. In other words, they did not permit Schmidt to make his own determination that he was no longer obligated to pay support. The quoted-provisions permitted an application to the Family Part for an order modifying Schmidt's support obligation. Schmidt has not provided any record of such an application or the Family Part's prior rulings with respect to modification of his support obligation on grounds of his disability or the daughter's college attendance.*fn1

Because Schmidt has failed to provide the order of August 14, 2009, from which he appeals, R. 2:6-1(a)(1)(C); "such other parts of the record . . . as are essential to the proper consideration of the issues," R. 2:6-1(a)(1)(I); and transcripts of prior proceedings that are relevant to the arguments raised on appeal, R. 2:5-3, we dismiss the appeal. We make no finding as to whether Schmidt might have a basis to seek review of the trial court's orders in accordance with Rule 4:50-1 or other court rules.


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