On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0658-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2011
Before Judges A. A. Rodriguez and Ashrafi.
Defendant-father, Nitin Chitnis, appeals from a June 30, 2010 order of the Family Part denying without prejudice his post-judgment motion to change venue from Somerset to Middlesex County for all future child support and other matters.
Plaintiff-mother, Jayashree Chitnis, has not responded to defendant's pro se appeal, and the record that defendant has provided to us is incomplete. For example, the appendix on appeal does not contain a copy of the judgment of divorce, but the docket number in the trial court indicates that the complaint for divorce was filed in the 2000 court term in Somerset County. The parties have one child, now a teenager. Plaintiff-mother and the child now live in Middlesex County.
A hearing to determine child support was held on October 14, 2009. In addition to determining the amount of child support, the court ordered that the parties divide equally the extracurricular and medical expenses of the child. On January 11, 2010, the court held a review hearing to determine whether additional income should be imputed to defendant. At that time, the court considered but denied plaintiff's request for reimbursement of orthodontic and tutoring expenses, instructing her to obtain additional documentation of insurance reimbursements for the orthodontic expenses and declining to order immediate reimbursement of tutoring expenses because defendant argued he was financially unable to pay it. The court stated that defendant would be ordered to pay half those expenses in the future as he continued his job search. The court instructed the parties to file new motions to resolve the reimbursement issues.
In early May 2010, defendant filed a motion to change venue because both parties were then living in Middlesex County. Plaintiff filed a cross-motion again seeking reimbursement of the orthodontic and tutoring expenses and also to order defendant to pay half the automobile insurance expenses of the daughter as she approached driving age. Her cross-motion indicated her opposition to a change of venue because all prior motions were heard at the Somerset County Courthouse and that location was as convenient for her as the Middlesex County Courthouse.
On June 30, 2010, the court considered the papers filed and entered an order denying both parties' motions without prejudice. It denied plaintiff's motion for reimbursement because she had failed to attach relevant orders, as required by Rule 5:5-4(a). It denied defendant's motion to transfer venue, stating in the order "once all pending matters are resolved, Defendant may re-file this motion for venue transfer." In a statement of reasons attached to the June 30, 2010 order, the court added:
As set forth below, Wife has a pending motion that cannot be resolved at this time. As such, venue may not be transferred between Counties until all pending matters are resolved. Once all pending matters are resolved, Husband may re-file this motion for venue transfer. At that time, this Court will communicate with Middlesex County regarding the venue transfer request.
On appeal, defendant argues his motion to change venue should have been granted because there were no pending matters. He contends incorrectly that the court had resolved the motions for reimbursement of the daughter's expenses on January 11 and June 30, 2010. On both occasions, the court stated that plaintiff should re-file her motion with the necessary documentation. We have no indication on the record presented that plaintiff did in fact re-file her motion after June 30, 2010. If she did not, sufficient time may have passed so that her unresolved request for reimbursements should not bar a motion to change venue. However, defendant also informs us in his appellate papers that he no longer resides in Middlesex County. He moved to Bergen County in December 2010.
Rule 4:3-3(a) provides in pertinent part: "a change of venue may be ordered . . . in Family Part post-judgment motions, if both parties reside outside the county of original venue and application is made to the court by either party to change venue to a county where one of the parties now resides." The word "may" indicates the court has discretion to grant or deny the motion depending on the particular circumstances. Cf. R. 4:3-2 ("Venue shall be laid by the plaintiff in Superior Court actions . . in the county in which the cause of action arose, or in which any party to the action resides[.] (emphasis added)); see also Rutgers-The State Univ. v. Fogel, 403 N.J. Super. 389 (App. Div. 2008) (mandatory venue provisions of the federal Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692i).
Here, we find no abuse of discretion in the Family Part's denial without prejudice of the motion to change venue while matters were unresolved pertaining to reimbursement of the child's expenses. The court expected plaintiff to re-file her motion for reimbursements. If in fact she did not ...