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Joshua Warren v. Teresa Warren


July 23, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0743-10.

Per curiam.


Telephonically argued July 13, 2012 -

Before Judges Sabatino and Kennedy.

Plaintiff Joshua Warren appeals from a January 14, 2011 order of the Family Part denying his motion to amend an earlier pendente lite order requiring him to pay, among other things, the mortgages on the matrimonial home. He also appeals from that portion of the January 14, 2011 order that granted defendant's motion in aid of litigant's rights requiring him to pay spousal support of $500 per week pendente lite, retroactive to the date of the earlier order, in lieu of paying the mortgages.

Plaintiff and defendant were married in 2004 and divorce proceedings commenced in 2010. At the time, the parties had two children, then ages five and ten months, and owned a home encumbered by two mortgages in Gloucester County. On July 23, 2010, the Family Part entered an order pertaining to pendente lite support, custody and visitation, and the order, among other things, required plaintiff to pay mortgage and tax expenses on the marital home, $125 weekly in interim child support, a share of the children's day care expenses, and other specified "Schedule A and B" expenses. Defendant, meanwhile, was responsible for her "Schedule C" expenses. Plaintiff never paid the mortgages, however, and subsequently moved to amend the July 23 order. Defendant cross-moved to compel plaintiff to pay the mortgage expenses, as well as other obligations she claimed plaintiff failed to pay.

Plaintiff conceded he had not made the payments, but claimed that mounting expenses "made it impossible for [him] to keep up with the mortgage." Plaintiff further claimed that the marital home was listed for sale at a figure $20,000 less than the combined principal amounts of the two mortgages and that "[r]eal [e]state agents and the bankruptcy attorneys have advised there is no point to continue paying the mortgage under these circumstances."

After considering the submissions of the parties, the Family Part judge found that plaintiff had "sufficient funds" to pay the mortgages, but failed to do so. The judge then found "in lieu of maintaining the mortgage" plaintiff would be required to pay spousal support, pendente lite, of $500 per week to assist defendant in meeting expenses and her "new rent for an apartment for herself and the children[.]" The judge also determined that plaintiff shall owe arrearages in spousal support to defendant in an amount equal to the unpaid mortgage sums, plus some lesser outstanding obligations.

A final judgment for divorce was entered the following month which incorporated the terms of a property settlement agreement the parties had entered into. The agreement specifically reserved to plaintiff the right to appeal the January 14 order and this appeal followed.

On appeal, plaintiff contends the Family Part judge failed to credit plaintiff with payments he had made; failed to consider defendant's income and expenses; failed to determine what amount of spousal support would have been appropriate in July 2010 had the mortgage payments not been at issue; and "improperly determined" that plaintiff's failure to make the mortgage payments was "willful and deliberate." In support of the latter argument, plaintiff asserts that he "fairly believed" defendant had consented to a "short sale" of the marital home and that "he would stop paying the mortgage[.]"

We defer to factual findings made by Family Part judges when they are supported by "'adequate, substantial, credible evidence.'" Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. "Minimally adequate fact finding requires a discussion that demonstrates that the court has heard and addressed the relevant facts and claims under the controlling legal standards." Gordon v. Rozenwald, 380 N.J. Super. 55, 76-77 (App. Div. 2005) (citing Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001)). "A trial court's rulings in such matters are discretionary and not overturned unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Id. at 76 (citations omitted).

Guided by these principles and our review of the record, we discern no error in the determinations made by the Family Part judge warranting appellate intervention. We affirm essentially for the reasons stated in the judge's January 14, 2011, opinion and order and we determine that the issues are insufficient to require examination in a second written opinion. Rule 2:11-3(e)(2)(E).

We add only that plaintiff's decision not to pay the mortgages because such payments "would essentially be lost without benefit to either party" is not necessarily true. Plaintiff benefited by his unilateral and unauthorized decision to ignore the requirements of the July 23 pendente lite order which was presumably calibrated by the trial judge in consideration of the mutual financial responsibilities that each of the parties would be bearing. If the trial judge had known that plaintiff was not, in fact, going to pay the monthly mortgage, the judge quite conceivably might have required plaintiff to pay a higher sum in child support, day care costs, or Schedule C expenses, thus lessening the relative burden on defendant. Because plaintiff did not raise this issue prior to that order, he prevented the judge from appropriately adjusting the financial obligations of the parties at that time.

Lastly, plaintiff argues that he is entitled to an offset from the reimbursement amount ordered by the trial judge, based upon payments that he contends should have been credited against his obligation. During oral argument on the appeal, plaintiff's counsel acknowledged that he had not previously quantified those claimed offset amounts for the trial judge. We do not address this offset claim in the first instance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-235 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. den. 31 N.J. 554 (1960)). Instead, we specify that our decision affirming the trial court's order is without prejudice to plaintiff making a prompt application in the trial court for such relief and defendant's right to oppose such an application.



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