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Veluswamy Mathiarasan v. Poornima Veeraswamy

June 24, 2011

VELUSWAMY MATHIARASAN, PLAINTIFF-APPELLANT,
v.
POORNIMA VEERASWAMY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-885-05c.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 12, 2011 -- Before Judges Baxter and Koblitz.

Plaintiff Veluswamy Mathiarasan appeals from an order of August 10, 2010, recalculating child support, and an order of September 16, 2010, denying without prejudice reconsideration of the prior order. After reviewing the record in light of the contentions advanced on appeal, we remand to enable the trial judge who entered the original order to place his reasons on the record and decide the issue of whether imputation of income to the parties is appropriate and, if so, whether recalculation of child support is appropriate.

Plaintiff and defendant Poornima Veeraswamy were married on May 21, 2000. Their only child was born in 2004, and a divorce was granted, after trial, on November 13, 2006. At the time of the divorce judgment, the trial judge imputed $40,000 in income to defendant, finding her to be underemployed. Also, at the time of the divorce, defendant was the parent of primary residence (PPR) as that term is defined in the Child Support Guidelines, as their son resided with her for the majority of the time. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2442 (2011). On August 15, 2007, the parenting schedule was modified,*fn1 and on October 9, 2009, an order was entered dividing the parenting time equally between the parents, with each parent spending every other week with their child beginning January 4, 2010.

On July 9, 2010, plaintiff filed a motion seeking a modification of child support commensurate with the additional parenting time he now enjoyed and an imputation of income to defendant of $60,000, as well as other relief. Plaintiff asked the judge to make an adjustment to the Child Support Guidelines for controlled costs, pursuant to Benisch v. Benisch, 347 N.J. Super. 393 (App. Div. 2002), as the parties shared parenting time equally. Defendant replied that she was educated in India, had only a bachelor's degree and lacked work experience. She said plaintiff, on the other hand, should be able to find a higher-paying job because he earned a master's degree in the United States. She filed a cross-motion seeking, among other relief, that income be imputed to plaintiff. Plaintiff was earning an annual W-2 income of $106,000 and defendant approximately $45,000.

Plaintiff sought oral argument on the motion, and defendant requested not to have oral argument, claiming her former husband was harassing her, and she feared an absence from work to attend oral argument might jeopardize her job. On at least two occasions in the past, defendant had reported to the police that plaintiff did not return their child timely. On both occasions, the parties had a disagreement as to the meaning of the court order. The judge denied oral argument on this motion and issued an order with a shared parenting Child Support Guideline worksheet attached, which did not address the issues of imputation of income to either party or the request to back out controlled expenses given the equal division of parenting time. See Benisch, supra, 347 N.J. Super. at 397-401; Wunsch-Deffler v. Deffler, 406 N.J. Super. 505, 509 (Ch. Div. 2009). This order did not give any reasons for the decision. See Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002) (holding that a completed Child Support Guideline worksheet is not an acceptable substitute for the required findings).

Plaintiff filed a motion for reconsideration that was heard by a different judge, as the original motion judge had been transferred to a new division.*fn2 The new judge then found that no evidence was presented that had not previously been considered and denied the motion. Reasons for this decision were placed on the record by this judge.

On appeal, plaintiff argues that the initial motion judge erred by: (1) not adjusting the Child Support Guidelines by a portion of the controlled expenses given the equal time-sharing arrangement; (2) not imputing income to defendant; (3) denying oral argument; and (4) failing to make findings of fact and conclusions of law.

Although the judge's decision to hold oral argument on a motion is discretionary, "there is a strong presumption favoring argument of motions other than calendar matters and routine discovery applications." Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 5:5-4(a) (2011) (citing Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997)). As we noted in Palombi v. Palombi, 414 N.J. Super. 274, 285 (App. Div. 2010), Rule 5:5-4(a) has generally been interpreted to require oral argument "when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998). The denial of oral argument when a motion has properly presented a substantive issue to the court for decision "deprives litigants of an opportunity to present their case fully to a court." Ibid. We do not retreat from that interpretation of the Rule.

However, the Rule still permits a trial court to exercise its discretion to deny such requests, even in cases involving "substantive" issues. The discretion afforded by Rule 5:5-4(a) is designed to give the judge "the option of dispensing with oral argument . . . when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision. In short, it is the sole purpose of these rules to dispense with what is regarded as unnecessary or unproductive advocacy." Fusco v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982).

Here, oral argument would have been helpful in resolving the issues disputed by the parties, and thus, we conclude that the judge should have granted plaintiff's request for oral argument. Defendant presents reasons involving her work responsibilities and relationship with plaintiff to explain why she does not want to participate in oral argument. She may choose not to appear at oral argument.*fn3

We cannot properly assess the decisions made by the original motion judge, however, because no reasons for those decisions were placed on the record. Rule 1:7-4(a) requires the court to "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . ."

"Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443, (App. Div. 1990). "The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347, (App. Div. 1996). We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so. Barnett & Herenchak, Inc. v. State Dep't of ...


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