ELLEN KROMPIER, now known as ELLEN CICCARELLI v. LAWRENCE KROMPIER, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0058-05T1

ELLEN KROMPIER, now known as

ELLEN CICCARELLI,

Plaintiff-Appellant/

Cross-Respondent,

v.

LAWRENCE KROMPIER, JR.,

Defendant-Respondent/

Cross-Appellant.

_________________________________________________________

 

Submitted June 21, 2006 - Decided July 17, 2006

Before Judges Wefing and Coburn.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth

County, FM-13-171-04.

Perrotta, Fraser & Forrester, attorneys for

appellant/cross-respondent (Donald B. Fraser, Jr.,

of counsel and on the brief).

Caruso & Baxter, attorneys for respondent/

cross-appellant (Gregory S. Baxter, on the brief).

PER CURIAM

In this post-judgment matrimonial case, plaintiff moved for modification of the parenting schedule to which the parties had previously agreed and for an increase in child support. Defendant opposed the motion, and sought an award of counsel fees.

On May 13, 2005, the motions were argued and decided, and an order was signed and filed. The order provided that the children would spend two weeks of the summer with defendant and otherwise denied all relief sought. The order ended with the signatures of both counsel indicating that they consented to its form.

On June 9, 2005, plaintiff filed a motion for reconsideration supported only by counsel's certification, which included the following pertinent material:

4. To the best of the recollection of the undersigned . . . the Court did not undertake an analysis of the best interests of the child with regard to the relief denied in Paragraphs 4 and 5 of the earlier order, namely the issue of elimination of mid-week overnight visitation, or the question of with whom the children should spend the Christian holidays.

5. With regard to Paragraph 6 of the original Order, the Court left the child support at $175 per week, notwithstanding the fact that . . . the alimony received by Plaintiff from Defendant had been halved, as per the express provisions of the Property Settlement Agreement, on the one-year anniversary of the parties' divorce. . . . Plaintiff does contend, however, that the failure . . . to order a modification of child support was erroneous, and we seek reconsideration of this decision. . . .

Plaintiff's counsel further certified that apparently due to a failure of the Post Office he did not receive the May 13 order until he arranged to have his adversary fax him a copy, which he received on June 1, 2005.

Defendant's counsel filed timely opposition, citing and quoting Rule 4:49-2, and arguing that plaintiff had failed to provide the specific basis for reconsideration or any controlling authority ignored by the judge. In defense counsel's responding certification, he asked for counsel fees, this time in the amount of $1,311.75, including disbursements, arguing that plaintiff's motion was entirely without merit and a financial imposition on his client. Plaintiff's counsel filed an answering letter-brief which argued that he had been specific in arguing that the judge had not considered the children's best interests, and he again emphasized that the agreed reduction in alimony justified re-visitation of the child support, noting that alimony had gone from $27,000 a year to $13,500 a year. Plaintiff did not provide any legal authority in support of her positions. On July 22, 2005, the judge signed and filed an order denying the motion for reconsideration. The judge denied defendant's request for counsel fees in a letter opinion of August 24, 2005, but no order was entered.

Plaintiff filed a notice of appeal on September 2, 2005, appealing the orders of May 13, and July 22, 2005. Defendant filed his notice of cross-appeal on September 14, 2005, from the order of July 22, 2005. On November 10, 2005, the judge gave an oral opinion that began with an explanation as to why he had denied the motion for reconsideration. However, he then in fact reconsidered his prior ruling and gave detailed reasons for the result he had previously reached.

The parties were divorced on January 2, 2004, and plaintiff's motion for a change of visitation was filed a year and three months later. Public policy favors stability of consensual arrangements in family matters. Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999). And courts should enforce the agreements as written in the absence of changed circumstances that would render continued enforcement unfair, unjust and inequitable. Id. at 194 (citation omitted). With respect to this aspect of the case, we affirm substantially for the reasons expressed by the trial judge in his oral opinions of May 13, and November 10, 2005.

But we cannot leave in place the order denying plaintiff's application for increased child support. The parties' written agreement on this point is clear. The parties' written agreement provides when "alimony reduces or terminates child support shall be appropriately adjusted pursuant to the [Child Support] [G]uidelines." The agreement also states that defendant's yearly income is $104,900 and plaintiff's imputed income is $25,000. When the motion was filed plaintiff asserted that defendant was still making more than $100,000 per year, and he did not deny that. Plaintiff further asserted that although she was making less than $20,000 per year, she was willing to accept that $25,000 per year should be imputed as her yearly income. Pursuant to the written agreement the alimony, which was set at $27,000 per year for the first year, had become $13,500. The income of the man with whom plaintiff was residing when she filed her first motion was not relevant as he had no obligation to support the parties' children. Therefore, the judge was confronted by a clear and substantial change of circumstances, the halving of plaintiff's alimony, and by the parties' express agreement that in that event child support would be recalculated.

Although it is true that motions for reconsideration should be granted only under very narrow circumstances, those circumstances include cases where the court "has expressed its decision based upon a palpably incorrect . . . basis, or . . . the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), cited with approval in Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). Here the judge failed to appreciate fully the significance of the parties' agreement for modification of child support in precisely the situation presented for decision. Therefore, reconsideration was appropriate. On reconsideration, the judge erred in failing to give effect to the parties' agreement.

Defendant has argued that plaintiff's notice of appeal was out of time as to the first order. That appears to be the case, but since the judge should have modified the first order when he ruled on the reconsideration motion, plaintiff's appeal was timely on the child support issue. Defendant's contention that the judge erred in denying his application for counsel fees is rejected for the reasons expressed by the judge and because no order was entered with respect to the second application. Appeals lie only from orders or judgments, not from written opinions. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).

Affirmed in part; reversed in part; and remanded for further proceedings to allow for recalculation of child support.

 

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A-0058-05T1

July 17, 2006