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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 ...

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