June 30, 2011
ROBYN RUSS MEEK, PLAINTIFF-RESPONDENT,
ANTHONY MEEK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-14-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 13, 2010
Before Judges A.A. Rodriguez and LeWinn.
In this post-judgment matrimonial matter, defendant appeals from the April 5, 2010 order of the Family Part denying his motion to reduce his child support obligation and awarding counsel fees to plaintiff. Because the parties' certifications were conflicting and, despite both parties' requests for oral argument, the judge resolved all issues on the papers, we reverse and remand for further proceedings commencing with oral argument and, if necessary, a plenary hearing.
The parties have been divorced since 1999. They have two children who were seventeen and fourteen years old, respectively, at the time of the proceedings that are the subject of this appeal. Neither party has provided us with their judgment of divorce or the agreement or order setting defendant's original child support obligation. The earliest official documentation of that obligation is in an order entered on June 24, 2005, noting that "[c]hild support shall continue at $1433.00 per month, as set forth in Probation's records." That order also required defendant to "pay for the extraordinary expenses of the children in the amount of $982.00 per month, effective as of February 1, 2005 . . . through the Probation Department[,]" thus making his total monthly obligation $2415.
An order of November 2, 2005 provides that "[c]hild support shall continue in the amount of $2,415.00 as per the prior order." That order further required garnishment of defendant's disability insurance benefits to pay ongoing support and arrears.*fn2
A March 16, 2009 order states that defendant "is under a [c]court [o]rder to pay $2742.00 . . . monthly" in child support, plus $200 per month toward arrears. In his motion papers, defendant explains that the increase in the monthly amount was "due to cost of living increases."
On December 17, 2009, defendant filed a motion to modify his child support obligation. His notice of motion indicated that he requested oral argument "only if the motion is contested."
Defendant certified that at the time of the divorce he was "not employed but had previously worked as a money broker." Child support had been "based upon [his] prior income" and was increased in 2001-2002 "because of [his] increased income from [his] employment in London, England, where [he] was employed as a money broker."
Defendant asserted that in 2005 he was diagnosed with bipolar disorder and "developed a dependence on alcohol." As a result, he was "unable to work and applied for and received disability from a private insurance policy [he] ha[s]." He stated that he had been "hospitalized at least eight times since 2005" and was currently in therapy. He has "made efforts to pay [his] child support obligation since [his] loss of employment but . . . cannot afford to pay child support that is based on a former six-figure income." He has "had to borrow [a] significant amount of funds from friends to help [him] cover [his] living expenses and to pay some of the child support arrears," and defendant attached a letter from Dr. Julie Lieb, his treating psychiatrist, dated November 17, 2009, supporting his allegations.
Defendant appended to his certification a current Case Information Statement (CIS), reflecting no income earned in 2008; however, he appended a disability insurance "benefit explanation" form dated July 23, 2009, reflecting a monthly payment of $5,703.47. The form also indicated a "[d]isabilty [d]ate of March 9, 2009." This CIS listed defendant's total monthly expenses as $6355, which included his child support obligation of $2942. Defendant did not append a copy of his CIS from 2005 when the last child support order had been entered.
Regarding plaintiff's earnings, defendant certified that she had been "doing her second residency at the time of the divorce[,]" and "currently has a family practice . . . as a Doctor of Osteopathic Medicine and is affiliated with Hackettstown Regional Medical Center."
Plaintiff filed a cross-motion seeking numerous forms of relief all related to securing defendant's payment of child support and arrears. She also sought to have defendant provide his current financial information to enable their daughter to apply for financial aid for college. Plaintiff further asked that a sanction of $50 per day be imposed on defendant for "each day that he is in violation of any provision" of the court's order. Plaintiff's notice of motion stated that she requested oral argument.
Plaintiff certified that defendant "has been employed overseas on various occasions and it is very likely that he has access to cash that he has invested internationally in order to avoid paying child support." She claimed that he "has been employed after 2005, the date of his alleged disability." Plaintiff noted that defendant had filed a motion to reduce child support based on his disability in 2005, and that motion had been denied. She appended a copy of defendant's 2005 CIS, which reflected gross earned income for 2004 of $101,403.64, and indicated that he "expect[ed] to be receiving $5000.00 per month beginning in April."
Regarding her own income, plaintiff stated that she is "an hourly employee for the Judge Group, which provides contract staffing to the healthcare industry." She appended a pay stub showing gross weekly earnings of $2520.
On April 5, 2010, the judge entered an order denying defendant's motion without prejudice and granting plaintiff's requests (1) to impose monetary sanctions upon defendant's failure to comply with the order within fourteen days, (2) to require defendant to provide his current financial information for the daughter's financial aid application, and (3) for counsel fees.
The judge denied defendant's motion finding that he "ha[d] failed to demonstrate a sufficient change in circumstances to warrant a modification of his child support obligation." He found that defendant was "voluntarily unemployed and ha[d] failed to demonstrate any efforts he has made to secure employment." Noting that defendant was receiving disability insurance benefits, the judge stated that he "failed to provide proof of his alleged disability or his designation as disabled by a governmental agency." Dr. Leib's letter was "unsworn and thus [could] not be considered . . . ." The judge further noted that defendant's monthly disability benefit was "slightly more . . . than . . . at the time of the . . . November 2, 2005 [o]rder. Thus, defendant['s] monthly earnings have increased since his last modification motion."
Notwithstanding that plaintiff had submitted a copy of defendant's 2005 CIS as part of her motion papers, the judge found that defendant had failed to provide that CIS "or a complete current CIS in support of his application." The judge did not explain why he considered defendant's current CIS to be incomplete.
In awarding counsel fees to plaintiff, the judge considered the factors in Rule 5:3-5(c) and found that defendant "has indeed acted in bad faith" by "fail[ing] to abide by . . . prior [o]rders . . . and has accumulated a substantial sum in arrears." The judge determined that "despite any conclusion regarding the economic disparity between the parties, . . . defendant shall be liable for plaintiff's counsel fees."
Notwithstanding both parties' requests for oral argument, the judge concluded that "[he] d[id] not need to conduct oral argument in order to decide the issues in contest." The judge noted that, pursuant to Rule 5:5-4(a), he would "normally grant oral argument on substantive issues relating to modification/termination of support . . . assuming that the papers submitted present a genuine matter in dispute." However, he stated that "[o]ral argument is for the benefit of the [c]court, in order for it to fully and completely decide matters in difference between the parties[,]" and such was not necessary here.
On appeal, defendant contends that the judge "erred as a matter of law" in determining that he was not entitled to a modification of his child support obligation, and "by not using current financial information" to determine child support. He further contends that the judge "acted in an arbitrary manner" by failing to consider his 2005 CIS because it had been submitted by plaintiff rather than by defendant; finally, he protests the award of counsel fees to plaintiff.
We are satisfied that the judge erred in failing to hold oral argument in light of the conflicting assertions in the parties' certifications regarding defendant's true financial position. Moreover, the judge failed to take into account that plaintiff apparently now earns a significantly higher income than she did at the time defendant's child support obligation was set.
The judge also failed to address how defendant would be able to meet his monthly living expenses. Defendant's monthly insurance check is $5,703.47; when child support of $2942 is deducted from that amount, defendant has $2,761.47 left each month to meet expenses he claims total $3413 (when child supprot is deducted).*fn3 Clearly, this issue requires further exploration.
Where, as here, the parties' certifications present contested factual issues, the denial of oral argument is particularly inappropriate. "[A] case should not be decided merely on the basis of conflicting affidavits, or an inadequate record." Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984) (internal citations omitted), certif. denied, 99 N.J. 243 (1985). See also Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968) (concluding that it was an abuse of discretion to resolve issues in favor of one party based entirely on conflicting affidavits).
As noted, several significant issues were placed in dispute by the parties' certifications, such as plaintiff's current income, defendant's current disability status, and defendant's ability to meet his living expenses. Thus, oral argument was necessary to address these matters. "We appreciate the current concern for meeting calendar objectives. Those objectives must, however, be pursued consistently with and not counterproductively to the real business of the courts, which is to dispense substantial justice on the merits." Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982).
Moreover, our court rules afford these parties the right to oral argument, considering the nature of the issues involved. Rule 5:5-4(a), governing motions in the Family Part, is subject to Rule 1:6-2, and provides that "the court shall ordinarily grant requests for oral argument on substantive . . . motions." Rule 1:6-2(d) provides with respect to motions in the Family Part, other than motions addressed to calendaring and discovery issues, that a request for oral argument "shall be granted as of right." See Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997) (oral argument must be allowed on substantive motions involving significant issues).
We briefly address counsel fees. Because we reverse the April 5, 2010 order and remand for further proceedings, we vacate the counsel fee award in that order. An appropriate counsel fee award, if any, shall abide the conclusion of proceedings on remand.
Finally, on remand, the judge may request additional submissions including current, updated CIS's from both parties, as well as the CIS's filed in 2005 when child support was last addressed. We leave this decision to the discretion of the judge who will preside over remand proceedings.
Reversed and remanded for proceedings in conformity with this opinion.