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Philip M. Proetto v. Kim Proetto

November 2, 2012

PHILIP M. PROETTO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
KIM PROETTO, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-497-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 10, 2012

Before Judges Carchman, Baxter and Nugent.

Plaintiff Philip M. Proetto appeals from the three provisions of a post-judgment Family Part order that: denied reconsideration of a previous order that dismissed his motion to reduce his alimony and child support obligations; denied his motion to suspend his support obligations pending a plenary hearing; and granted defendant's cross-motion "to order plaintiff's arrest until he complies with all orders."*fn1

Defendant Kim Proetto cross-appeals from the trial court's refusal to deny plaintiff's motion for reconsideration on the ground that the motion was not timely filed. Finding no abuse of discretion by the trial court, we affirm.

Following a nineteen-year marriage, the parties were divorced on September 16, 2005. The Judgment of Divorce (JOD) incorporated their handwritten property settlement agreement (PSA), which: provided for the custody of their three children as well as parenting time; required plaintiff to pay weekly child support of $160 for one year, and thereafter an amount calculated in accordance with the child support guidelines; and required plaintiff to pay weekly alimony of $1050 for one year, and thereafter permanent weekly alimony of $850. The PSA also stated that plaintiff's income was $153,000, defendant's income was $35,000, and that if plaintiff's income fell below $153,000, plaintiff "can make [a] change of circumstances application."

Nearly five years later, in June 2010, plaintiff, representing himself, filed a motion to reduce his support obligations and emancipate the parties' oldest child. He explained in a supporting document that in 2005, at the time of the divorce, he worked as a commercial real estate broker in Manhattan, but in 2009, due to the crash in the market, his employer fired him. Although he was paid no real estate commission in 2008 or 2009, in 2008 plaintiff profited from the sale of a luxury home that he and other members of an L.L.C. had built, and in 2009 he earned money as the organizer and general contractor of a project involving a warehouse. He earned his last fee from that project in February 2010. Plaintiff had hoped to receive income during the summer of 2010 from a health club he and others had renovated, but the club did not generate a sufficient profit for him to take a share.

In a certification replying to defendant's cross-motion to enforce litigant's rights, plaintiff also explained that he had been diagnosed with Crohn's disease. He submitted a medical report to support his assertion.

The court denied plaintiff's motion, explaining, among other reasons, that "[p]laintiff's Case Information Statement fail[ed] to list assets, including bank accounts or any and all property he may hold." The court also ordered the parties to submit their dispute over child support to economic mediation. The court entered a memorializing order on August 2, 2010.

On August 30, 2010, plaintiff, through counsel, filed a motion for reconsideration of the court's August 2 order. Plaintiff supported his motion with, among other documents, a new certification, case information statements for July 2005 and August 2010, a spreadsheet showing his income for 2008, 2009 and the first six months of 2010, and other financial documents.

In response to plaintiff's motion, defendant filed a cross-motion to enforce litigant's rights seeking, among other things, to have plaintiff incarcerated until he complied with previous orders. Plaintiff filed opposition, and the court heard the motion on September 24, 2010. Following the hearing, the court entered an order denying plaintiff's motion in its entirety, and granting defendant's cross-motion to have plaintiff incarcerated until he complied with court orders. This appeal followed.*fn2

Plaintiff first argues that the trial court misapplied its discretion by failing to find that plaintiff satisfied the requirements of Rule 4:49-2, which authorizes but circumscribes motions for reconsideration of court orders. Plaintiff acknowledges the limited scope of reconsideration motions, but argues that because the court's August 2 order was without prejudice, he "was permitted to re-apply to the court with additional proofs."

Defendant counters that plaintiff's initial motion was deficient because it did not include either plaintiff's original case information statement for 2005, or a current, signed, case ...


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