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Deborah A. Burns v. Patrick J. Burns Iii

April 27, 2012

DEBORAH A. BURNS, PLAINTIFF-RESPONDENT,
v.
PATRICK J. BURNS III, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2367-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 20, 2012 -

Before Judges Fisher and Maven.

Defendant appeals from the August 5, 2011 Family Part order (the August order) requiring him to procure medical and dental insurance through COBRA and pay the premiums from a certain trust account. Defendant asserts that the court erred as a matter of law by disregarding an order issued by another superior court judge and abused its discretion when rendering the order under review. These arguments have no merit. We affirm.

On August 19, 2010, Judge Barry A. Weisberg entered a Final Judgment of Divorce (FJD) ordering, among other things, that defendant maintain his work-related medical and dental insurance for the benefit of the parties' daughter. In an order dated March 3, 2011 (the March order), Judge Weisberg denied defendant's application for plaintiff to enroll the child in the NJ Family Care health insurance program. The judge also ordered that $30,000 from defendant's share of proceeds from the sale of the marital home be deposited into a trust account to fund defendant's outstanding financial obligations and any future alimony and child support shortfalls.

In accordance with Rule 5:7-5, the probation department notified defendant to appear at a hearing on May 5, 2011 to address his failure to provide health insurance. As a result thereof, a confirming order (the May order) incorporating the hearing officer's recommendation was signed by another Family Part judge and states in part, as follows:

Deft. present; he testifies that he is unemployed at the present time; he therefore does not have medical insurance available to him at this time; he is to provide same when medical insurance is available to him at a reasonable cost.

Plaintiff filed a motion before Judge Weisberg, seeking to compel defendant to provide health insurance as previously ordered. In August 2011, after oral argument, the court ordered defendant to provide the medical and dental insurance by enrolling the child under COBRA and directed the premiums to be paid out of the trust account that was established in the March order. This appeal follows.

On appeal, defendant raises the following arguments:

POINT I: THE TRIAL COURT'S SUA SPONTI [SIC]

VACATING OF AN ORDER ENTERED BY A DIFFERENT MIDDLESEX COUNTY JUDGE WAS A MISTAKE OF LAW.

POINT II: THE DECISION OF THE TRIAL COURT WAS ARBITRARY, AN ABUSE OF DISCRETION AND MANIFESTLY UNJUST.

As a threshold matter, factual findings that undergird a trial court's judgment should not be disturbed unless "'they are so wholly insupportable as to result in a denial of justice,'" and must "be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The trial court's "'feel of the case' . . . can ...


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