On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0068-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.
Defendant Robert Milward appeals from a Family Part order, which sanctioned him for failing to produce discovery. Defendant moved for a reduction in alimony because plaintiff Deborah Milward was cohabiting and defendant experienced an adverse change in financial circumstances. Defendant also sought modification of child support arrearages, contesting the date previously fixed for the children's emancipation. The motion judge determined a plenary hearing was necessary. The matter was assigned to a different judge to conduct the hearing. At plaintiff's request, the trial judge ordered defendant to produce financial records, including income tax returns. As a sanction for defendant's noncompliance, the trial judge canceled the hearing and declined to consider defendant's requests for modification of the support obligations.
Following our review, we conclude the trial judge abused his discretion in refusing to conduct a plenary hearing as a sanction for the discovery lapse. We remand the matter for additional proceedings consistent with this opinion.
The parties were divorced after more than twenty years of marriage. They have two children, who are now emancipated. The handwritten Final Judgment of Divorce (JOD) dated April 8, 2008, incorporated the parties' settlement of the issues other than the dissolution of the marriage.
Under the JOD, the parties shared joint legal custody of the children, plaintiff was designated the parent of primary residence and defendant the parent of alternate residence. Attributing $100,000 annual income to defendant, who owned and operated a construction business, and $30,000 annual income to plaintiff, it was agreed defendant would pay plaintiff weekly child support and permanent alimony at $286 and $375 respectively. The JOD did not specify the commencement date of the support payments, but rather provided payments would begin upon the sale of either the marital home or the parties' beach home on Burke Avenue in Wildwood (Burke Avenue property). The parties owned another Wildwood property on Juniper Avenue (Juniper Avenue property), which was also to be listed for sale.*fn1
Pending the realty sales, in lieu of the agreed upon support, defendant consented to continue to pay specified bills and expenses set forth in paragraph [seven] of the December 21, 2007 [consent] order until either the Burke Avenue or the [marital home were] sold, which[ever] occur[red] first, at which time his responsibility for the payments set forth in that order shall cease [and] he shall begin to pay child support [and] alimony[.]
The bills enumerated in the December 21, 2007 consent order included the mortgage on the martial home, the property taxes and insurance associated with the marital property, the property taxes and insurance for the parties' Burke Avenue . . . property, the utility bills for the Burke Avenue . . . property, [plaintiff]'s Nissan Versa car payment, one half of the monthly cable bill at the marital home for the regular service, the water and sewer bill for the marital home, water and sewer bill for the Burke Avenue . . . property and water and sewer bill for the Juniper Avenue . . . property and the reasonable utility bills associated with the marital home.
The parties' agreement provided that if neither property was sold after four months, the bill payment arrangement would be reevaluated, along with the start date of the payment of alimony and child support.
Neither the marital home nor the Burke Avenue property sold. Further, defendant did not pay the mortgage or satisfy the other obligations enumerated in the JOD. Consequently, a complaint seeking foreclosure of the marital home was filed by the mortgagee.
Plaintiff moved for enforcement of litigant's rights, requesting defendant's compliance with the designated payment obligations. Defendant filed no opposition and the motion judge granted the following relief:
The four (4) month period outlined in the [JOD] has expired, however, no application has been made to reevaluate the payments. The [d]efendant has not filed opposition to this motion. Pending further application made to the [c]court to reevaluate the provisions of the [JOD], based upon the properties not yet being sold, the
[d]efendant shall continue to make all payments set forth in both the [JOD] and December 21, 2007 [consent order]. To the extent the [d]efendant is behind on payments, all such payments shall be immediately made current.
Months later, plaintiff filed a second enforcement motion and requested the commencement of the alimony and child support payments stated in the JOD. This motion was unopposed and the motion judge granted plaintiff's requests regarding satisfaction of the specific bill payments, but denied her request for the commencement of alimony and child support, explaining the court "ha[d been provided] insufficient information to make that determination[.]"
Almost twelve months later, plaintiff filed a third motion seeking the enforcement of prior orders and the start of the support payments set forth in the JOD. This motion was also unopposed and the motion judge granted plaintiff's requests. Defendant was held in contempt for failing to comply with prior orders to bring the obligations related to the marital home current. The motion judge also concluded the alimony and child support payments in the JOD were triggered, stating:
The [c]court finds that [d]efendant's lack of payments and disregard of his financial obligations set forth in the [JOD] constitutes grounds to trigger his child support obligation. The [c]court has reviewed a foreclosure notice relative to the [marital home]. The [d]efendant was responsible for payment of the expenses (including mortgage and taxes) on that property until it was sold. Defendant has failed to do so. Consistent with the [JOD], the [c]court has reviewed the matter after the four (4) month period and finds that the support provisions should [be] trigger[ed] since the [d]efendant has failed to meet the financial obligations that were considered when the [JOD] was entered. Defendant shall pay spousal support in the amount of $375.00 per week and child support in the amount of $286.00 per week through [c]hild [s]upport
[p]robation via wage execution, effective October 23, 2009. Spousal support arrears shall be set at $2,450.00 and child support arrears at $2,002.00, given the retroactive application.
The parties executed a deed-in-lieu of foreclosure agreeing to surrender the marital home by February 15, 2010. Plaintiff vacated the marital home and moved into her boyfriend's residence.
On August 27, 2010, defendant filed a motion seeking the children's emancipation or alternatively, termination of his child support obligation because the children had been residing with him since February 11, 2009. Defendant also requested arrearages be vacated maintaining he was never served with plaintiff's prior motion because she mailed them to his parents' home in Delaware, even though she knew he was living in the former marital home. He certified he saw plaintiff regularly, but she never mentioned the motions and he only learned of the ordered obligations when he received a noncompliance notice. Defendant's motion included a request to terminate alimony because plaintiff had been living with her boyfriend since December 4, 2009. Finally, defendant asserted plaintiff had unreported income working as a hairdresser, that she used his share of the rental income to satisfy her car payment, and they agreed to surrender the marital home to the mortgagee because they could not afford it.
Plaintiff responded, objecting to the relief defendant sought and disputing his factual assertions. She filed a cross motion for discovery, recalculation of child support, seeking control of the rental and sale of the Burke Avenue property, and enforcing the prior orders for support. Plaintiff maintained defendant moved from the marital home on June 18, 2007, and told her to send his mail to his parents' home. She admitted she lived with her boyfriend out of necessity when forced from the marital home because of the foreclosure. Plaintiff disputed defendant's claim regarding their younger child, stating he lived with her and was about to attend college. She also refuted defendant's claims she had unreported income and that he paid any bills as ordered.
Although some issues could be determined based on the extensive pleadings, the motion judge identified numerous factual disputes that required testimony. The motion judge rejected plaintiff's claims that their younger child was embarking on a college career and ordered both children emancipated, effective July 16, 2010, and September 9, 2010, with a corresponding modification and termination of child support.*fn2 Defendant was ordered to pay $75 per week towards the accumulated child support arrearages, subject to further order.*fn3
Additionally, the judge ordered the scheduling of a plenary hearing to unravel the financial disputes, including the effect of plaintiff's cohabitation, the date the children began residing with defendant, the amount of arrearages, and the amount of defendant's support obligation. Pending the hearing, defendant's alimony obligation was decreased without prejudice to $200.00 per week, along with $25.00 per week towards arrears.
In reviewing plaintiff's cross-motion, the court granted her exclusive possession and control of the Burke Avenue property, which she was to "aggressively take steps to sell or rent" and was granted discovery, as follows:
Plaintiff's request to require the
[d]efendant to supply his complete income tax returns with all schedules and notes, etc. for the years 2007, 2008, and 2009 is hereby GRANTED IN PART. The [d]efendant shall provide his 2009 [i]ncome [t]ax
[r]eturns with full schedules to the
[p]laintiff within thirty (30) days of this
Before the hearing concluded, based on defendant's claims of improper service, he stated his address, which was included in the order.
Prior to the case management conference, the motion judge was rotated to the Civil Division and the file was assigned to another Family Part judge (trial judge). The trial judge conducted the management conference ordered by the motion judge. Plaintiff was again represented by counsel and defendant continued to be self-represented.
Defendant had provided some financial information to plaintiff's counsel, including a tax return for 2009, reflecting a net income of less than $5000. We also note, defendant's prior certifications contained his assertion he was not required to file tax returns for 2007 or 2008 because he did not meet the required income threshold for filing. Further, plaintiff's certification included a reconciliation of the rental income and expenses for the years 2008 to 2010. Plaintiff's counsel explained the disclosures were insufficient and suggested both parties supply updated case information statements with all necessary attachments. The following colloquy occurred:
[PLAINTIFF'S COUNSEL]: [The motion judge] lowered the alimony without prejudice based on cohabitation by my client and based on Mr. Milward's allegation that he made a whopping $4,600 . . . in 2009.
He was . . . to provide a signed, dated income tax return, which he did do.
When he first filed the motion, he filed a worksheet. Then he dropped something in my office that has marked all over it "Not for filing." It's not signed. It is not dated. And I would suspect it was never even filed with the IRS.
So we have -- part of what I would like, since we are going to have the alimony issue as part of the plenary hearing, I would like both sides to be required to file updated [c]ase [i]nformation [s]tatements and attach --
THE COURT: But I can't even hear the motion without that happening.
[PLAINTIFF'S COUNSEL]: That's right, for the plenary.
THE COURT: Now, what I'm going to need for the plenary on this issue, I'm going to need the ...