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Shari Lynn Pollak, F/K/A, Sharon Lynn Pollak Kalen v. David Kalen

July 5, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-469-06.

Per curiam.


Argued November 15, 2011

Before Judges Payne, Reisner and Hayden.

In this post-judgment matrimonial matter, defendant David Kalen appeals from the March 9, 2010 Family Part order denying his application for a downward modification of alimony and child support and for relief from several prior Family Part orders. Defendant also appeals from the April 21, 2010 order declining to hear part of his motion for reconsideration. Having considered defendant's contentions in light of the applicable law, we affirm.

The parties were married on September 21, 1991, and have three children. Plaintiff, then known as Sharon Lynn Pollak Kalen, filed a complaint for divorce on November 9, 2005. After a six-day trial, Judge Reed filed a written opinion on October 1, 2008, which required defendant to pay alimony of $2,000 per month and child support of $113 per week. Additionally, Judge Reed issued an Amended Judgment of Divorce (AJOD) on December 18, 2008.

In January 2009, plaintiff filed a motion for reconsideration requesting that the judge calculate the arrears due under the AJOD. Defendant filed a cross-motion for reconsideration, which the judge pointed out was mainly a motion to modify prior orders from 2007 and 2008 and for completely new relief. The judge decided to address some of the matters inappropriately raised by defendant to avoid further motion practice.

In the February 9, 2009 order, Judge Reed fixed defendant's miscellaneous arrears at $16,209 and his child support and alimony arrears at $6,207; offset the arrears due plaintiff by a $21,600 credit to defendant; and required defendant to pay the remaining amount within ten days, among other relief. Addressing defendant's cross-motion, the judge denied defendant's requests and, finding defendant "pursued that motion in bad faith because his motion does not even pay lip service to the applicable law or court rules," awarded plaintiff counsel fees for opposing defendant's cross-motion. Defendant filed an appeal of the order, which was eventually dismissed for lack of prosecution.

On March 27, 2009, Judge Marino denied defendant's motion for a stay of the February 9 order and request to be granted indigency status for his then-pending appeal because defendant had a yearly salary of more than $100,000. She also granted plaintiff's request for counsel fees after finding defendant's motion was made in bad faith. On August 19, 2009, in ruling on motions of both parties, Judge Marino denied defendant's request to reduce alimony and child support, due to his claim of reduced income, without prejudice to defendant filing again with appropriate proof, including sufficient documentation.

On February 3, 2010, defendant filed a motion requesting that the February 9, 2009 Order and any and all pendente lite obligations, including but not limited to unreimbursed medical expenses, camp costs, legal fees, and all subsequent orders related to the Amended Judgment of Divorce rendered in this instant case at bar be dismissed and vacated for fraud, deception, false representations, misconduct by the adverse party and/or her attorneys, and for being void.

Specific requests included vacating the alimony award since defendant's income had dropped and plaintiff's imputed income was inaccurate; vacating the 2008 ruling on the fair market value of the marital home and defendant's automobile; vacating child support arrearages since the pendente lite support was improperly calculated in 2007; and vacating all prior counsel fee awards.

After a March 9, 2010 hearing, Judge Marino issued an order denying without prejudice defendant's motion for a downward modification of alimony and child support because defendant had failed to provide adequate documentation of changed circumstances. She also denied the remainder of defendant's motion, noting that his requests to reopen the prior orders had been made previously and his allegations were not supported by the record. In addition, the judge granted plaintiff's motion to adjust child support to credit her with 365 overnights per year and awarded her counsel fees. The judge denied several motions filed by plaintiff as well, which she did not appeal.

Further, Judge Marino granted plaintiff's motion to require defendant to submit all further motions to the judge for review prior to allowing them to be listed for a hearing. In her statement of reasons, she found that defendant has demonstrated on multiple occasions his unwillingness to accept the Courts' decisions and his willingness to continue to file repetitive motions demanding relief which the court had previously denied, and in some instances, denied multiple times.

Wife should not be compelled to continue to incur counsel fees due to Husband's repetitive bad faith motions. Therefore, any future motions filed by Husband shall first be screened and ...

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