DONNA L. RYLICK v. JOSEPH M. RYLICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0499-04T50499-04T5

DONNA L. RYLICK,

Plaintiff-Respondent,

v.

JOSEPH M. RYLICK,

Defendant-Appellant.

____________________________

 

Argued October 11, 2005 - Decided

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

FM-02-1116-99.

Stephen E. Samnick argued the cause for

appellant.

Gale Weinberg argued the cause for respondent (Weinberg & Ustas, attorneys; Deborah L. Ustas,

Ashley Tate Cooper and Melissa E. Cohen, on the brief).

PER CURIAM

Defendant Joseph Rylick appeals from orders of the Family Part entered on August 16, 2004, with respect to child support and from the appointment by the Family Court of a "therapeutic monitor" to assist in resolving issues of parenting time and other parenting matters. We affirm in part and reverse in part.

Defendant and plaintiff, Donna L. Rylick, were married on September 19, 1997. One child was born of the marriage, Christian J. Rylick, on June 1, 1998. Plaintiff filed her complaint for divorce on November 6, 1998. Over the course of the next three years there were numerous pendente lite applications to the court regarding custody and parenting time. It was not until October 30, 2001, that an agreement was placed upon the record granting each party joint legal custody of their son and in effect an equal parenting time schedule. However, this cooperation between the parties was transitory, and their inability to achieve common understanding is witnessed by the fact that although a judgment dissolving the marriage was entered by the court on December 5, 2001, a form of judgment incorporating the terms of their settlement has still not been agreed upon by the parties or entered by the court.

A series of post-judgment motions and cross-motions on parenting issues culminated in a five-day plenary hearing following which an order was entered on August 4, 2003, awarding primary residential custody of Christian, modifying the prior parenting time schedule, and fixing defendant's child support obligation at $98 per week payable through the Bergen County Probation Department. In addition the Family Court judge appointed Susan Garfield, LCSW as a therapeutic monitor with each party to pay one half of her retainer and subsequent fees. By separate order the court specified the duties of the therapeutic monitor as follows:

(a) [T]o assist the parties in resolving parenting disputes and creating a workable parenting plan. The parties shall return to the monitor for a minimum of two joint sessions before seeking legal action.

(b) [T]o speak with other professionals (i.e., children's (sic) therapists; school counselors; Guardian [a]d Litem; clergy; attorneys for the parties; etc.) in order to fully address any dispute.

(c) Any information that the therapeutic monitor may acquire shall not be confidential and the therapeutic monitor may communicate with the [c]ourt.

Upon request of the court and on notice to both parties, the therapeutic monitor shall report to the [c]ourt and all parties any needs for the children's (sic) therapy or plaintiff's/defendant's therapy, the recalcitrance of either party and a suggested parenting plan.

The parties participated in parenting time counseling with Ms. Garfield until June 17, 2004, when defendant filed a motion requesting further definition of the therapeutic monitor as well as modification of his support obligation, vacating the wage garnishment and awarding a credit for support that was paid. Plaintiff filed a cross-motion to enforce recommendations of the therapeutic monitor in addition to denial of defendant's motion. The motion judge declined oral argument and entered an order on August 16, 2004, stating that (1) credit for a child support payment in excess of $2,640 already credited to defendant's probation account by the probation department is denied; (2) child support is reduced to $50 per week until depletion of the credit; (3) a recalculation of child support to correct the August 4, 2003, figure of $98 per week is denied; (4) defendant's request to vacate the wage garnishment order is denied. On the same date the Family Court judge granted plaintiff's cross-motion for enforcement of recommendations of Ms. Garfield on parenting time and related matters as well as directing plaintiff to continue to attend therapeutic mediation sessions. Defendant has appealed both orders.

He argues that the orders must be reversed and the matters remanded due to the failure of the motion judge to make proper findings of fact and conclusions of law. We agree and remand for oral argument before the motion judge. Findings of fact and conclusions of law mandated by R. 1:7-4 are of critical importance to the appellate process. See e.g., Ronan v. Adely, 182 N.J. 103, 110-11 (2004). Failure to fully comply with this requirement in this instance is aggravated by the judge's decision to deny oral argument, which in our view was required by R. 5:5-4. See Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997) (holding that when a motion involves a substantive issue, the motion judge should grant oral argument absent a special circumstance to dispense with the requirement). Here, the motion judge simply adopted the credit given to defendant by the Bergen County Probation Department which defendant contends was approximately $300 less than his entitlement. Plaintiff is entitled to reasons, factual, legal or both, for the rejection of his proposed credit amount.

Next we address defendant's argument that his weekly child support obligation set forth in the August 4, 2003, order was improperly calculated and the motion judge did not address the issue in his August 16, 2004, order. Defendant asserts that the miscalculation resulted from an error in computing the amount of defendant's parenting time. Under the Child Support Guidelines a child support order will be adjusted to reflect actual time spent by the child with the parent of alternate residence (PAR). See Appendix IX-A(14) to R. 5:6A. The PAR must have the child for approximately twenty-eight percent of overnights during the year exclusive of vacations and holidays, in which case child support may be adjusted to accommodate each parent's time-adjusted fixed and variable expenses. Defendant argues that there was a clerical mistake in calculating his PAR time, which resulted in an erroneous child support figure under the Guidelines. In relying upon this aspect of defendant's motion, the judge wrote on the August 16, 2004, order as follows: "Denied. Child support was established at the rate of $98 per week on August 4, 2003 at which time defendant had the same amount of parenting time." Defendant agrees that his parenting time was the same but says that the 2004 order misses the point because it fails to address his claim of error in calculating the amount of child support. On the other hand, plaintiff asserts that defendant's argument is flawed because he seeks to include vacation time as overnights contrary to the Child Support Guidelines. Appendix IX-A(13)(b)(2).

R. 1:13-1 provides that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal." See also McNair v. McNair, 332 N.J. Super. 195, 199 (App. Div. 2000). The record on appeal is insufficient for us to make a determination as to whether or not there was a clerical error by the court, and we must therefore remand to the Family Part for clarification and, if necessary, further hearing to recalculate child support in accordance with the guidelines and the current income status of the parties.

The remaining issues raised by defendant are without sufficient merit to warrant comment. We add only that defendant is over a year beyond the time limitation for appeal of the August 4, 2003 order appointing a therapeutic monitor so that we need not reach the issue. Moreover, the appointment of a monitor to assist in resolving parental disputes and creating a workable parenting plan was entirely appropriate and in the best interest of the child in light of the obvious inability of the parties to reach agreement on a myriad of issues involving their son, including not only parenting time, but also the appropriate T-Ball league for the child. Unlike Maragliano v. Maragliano, 321 N.J. Super. 78 (App. Div. 1999), cited by defendant, the order appointing the therapeutic monitor sub judice explicitly provided that either party could seek court intervention for appeal of any determinations by the monitor with which they disagreed.

Affirmed in part. Remanded in part.

 

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A-0499-04T5

November 1, 2005