On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-445-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Nugent.
Plaintiff Joann Werosta appeals from an August 16, 2010 order denying her motion for reconsideration of a June 14, 2010 order, which decreased by more than one half the child support payable to her by defendant Karl Werosta. The court marked the June 14 order unopposed because Joann's*fn1 attorney filed her opposition papers late and the court did not consider them. The June 14 order also directed Joann to reimburse Karl for a portion of the children's extracurricular activities, and it awarded Karl attorney's fees.
Joann's motion for reconsideration included documented evidence that the court had miscalculated Karl's income by about $47,000. It showed that the correct income figures were not a matter of dispute but were already contained in Karl's tax returns and case information statement (CIS). The trial court declined to review the merits of Joann's motion for reconsideration and to recalculate child support. We reverse.
Joann and Karl were married in 1995 and divorced in 2006. They have three sons, currently from twelve to fifteen years old. Their property settlement agreement, which was incorporated into the final judgment of divorce, established terms of custody and parenting time in accordance with a consent order granting the parties joint legal custody and designating Joann the parent of primary residence. Karl was granted parenting time every other weekend and two evenings during the week without overnights. The property settlement agreement set child support at $1,720 per month, specifically stating that the parties had agreed to deviate from the child support guidelines. See Pressler & Verniero Current N.J. Court Rules, Appendix IX to Rule 5:6A (2011).
The parties engaged in further litigation after entry of the divorce judgment, typically pertaining to parenting time, child support, and other financial disputes. By an order dated November 5, 2008, the court directed that child support be recalculated because Karl had not exercised overnight parenting time since the time of the divorce. Instead of proceeding to a child support hearing, however, the parties entered into an agreement on March 5, 2009, increasing Karl's child support payments to $2,600 per month.
In the summer of 2009, Joann filed a pro se motion to enforce the agreement, and Karl filed a cross-motion for other relief pertaining to the children and financial disputes. On September 25, 2009, the court entered an order enforcing Karl's child support obligation and also entitling Joann to reimbursement from Karl of sixty percent of expenses for extracurricular activities of the children after she paid the first $250 per year for each child. The September 25, 2009 order made specific reference to the oldest son's hockey league expenses and stated that costs of extracurricular activities beyond $250 were "extraordinary expenses that should be shared."
In April 2010, Karl filed a motion to reduce his child support obligation and to enforce the September 25, 2009 order, seeking $870 from Joann for their oldest son's hockey expenses in addition to other relief. Joann retained the services of an attorney, but the attorney did not submit opposition until one day before the return date of Karl's motion, June 4, 2010. The court declined to consider the opposition papers and granted Karl's motion in its entirety as unopposed. The court's June 4, 2010 order*fn2 was later corrected on June 14, 2010 only as to a clerical error.
The June orders reduced Karl's child support obligation from $2,600 to $1,208 per month, based on changed circumstances in that Karl had a new child by his second marriage. To arrive at that figure, the court applied the child support guidelines, setting Karl's income on a worksheet at $2,614 per week, which is equivalent to yearly income of approximately $136,000. The June orders also directed Joann to reimburse Karl within thirty days $1,064 for extracurricular activities and $2,000 in attorney's fees for Karl's motion.
Joann retained new counsel and promptly filed a motion for reconsideration. She asserted that the court had mistakenly determined Karl's income, neglecting to include $46,838 in rental income shown on his 2009 federal income tax return and also on his CIS. She also stated that the court had not considered a CIS from her, which would show that she cannot afford to support the children on the lower child support ordered or to pay for expensive extracurricular activities that Karl can afford and chooses for the boys, in particular, a hockey team that travels out of state and requires overnight stays in hotels funded by the parents.
The court declined to hear oral argument on the motion for reconsideration, citing as justification our recent decision in Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010). Its August 16, 2010 order denying Joann's motion includes the following statement of reasons:
The Plaintiff's motion is denied in its entirety. The sufficiency of the facts asserted relating to reasons why the Plaintiff or her counsel failed to respond to the Defendant's motion, which was thereby rendered unopposed and uncontested, is deficient factually to constitute a substantive issue requiring argument or meet the requirements of N.J. Court Rules R. 4:49-2 demonstrating that the Court acted in an ...