SHOLOM SCHEINER v. RACHEL EISENBERG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3516-07T33516-07T3

SHOLOM SCHEINER,

Plaintiff-Appellant,

v.

RACHEL EISENBERG n/k/a

RACHEL LEARY,

Defendant-Respondent.

_________________________________________________

 

Submitted October 1, 2009 - Decided

Before Judges Payne and Miniman.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County, Docket No. FM-14-194-05.

Sholom Scheiner, appellant, pro se.

Haber, Silver & Simpson, attorneys for

respondent (Sherry L. Silver, of counsel

and on the brief).

PER CURIAM

Plaintiff, Sholom Scheiner, appeals pro se from orders of a judge of the Family Part dated February 29, 2008 and March 4, 2008. On appeal plaintiff makes the following arguments:

I. PLAINTIFF WAS DEPRIVED OF A FAIR TRIAL WHEN DEFENSE COUNSEL IMPLIED PLAINTIFF COULD AFFORD ADDITIONAL CHILD SUPPORT (TUITION) AND DEFENDANT DIDN'T PROVIDE REQUESTED EVIDENCE OF INCOME AND EXPENSES.

II. THE SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, MORRIS COUNTY ERRED IN ITS DISCRETION BY ENTERING AN ORDER FOR THE PLAINTIFF'S ARREST FOR FAILURE TO PAY CHILD SUPPORT ORDERS AND TUITION ORDERS IN AN AMOUNT THAT EXCEEDS HIS ABILITY TO PAY.

III. THE SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, MORRIS COUNTY ERRED IN ITS DISCRETION BY ENTERING AN ORDER FOR THE PLAINTIFF'S ARREST FOR FAILURE TO PAY COUNSEL FEES.

IV. THE SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, MORRIS COUNTY ABUSED ITS DISCRETION BY REFUSING THE CURRENT CHILD SUPPORT TO BE RECALCULATED ACCORDING TO NEW JERSEY STATE CHILD SUPPORT GUIDELINES AND TO TAKE INTO ACCOUNT THE OTHER DEPENDANT DEDUCTION FOR HIS SUBSEQUENT TWO BIOLOGICAL CHILDREN.

This case has a long and convoluted history centering around issues of child support, payment of expenses, and visitation. The parties, both Orthodox Jews, were divorced on October 5, 2000 in Massachusetts. Defendant, Rachael Eisenberg, was granted sole legal and physical custody of the three male children of the marriage, then age four, two and one. No visitation was ordered, and no alimony was awarded. However, plaintiff was ordered to pay child support in the amount of $264 per week. For a period of time, defendant and her three boys lived in South Africa. Upon their return to the United States, they lived in various locations, eventually settling in New Jersey. In 2004, plaintiff, likewise, moved to New Jersey. Both parties have remarried. Plaintiff has two additional children from his second marriage; defendant has one. The spouses of both plaintiff and defendant each have custody of two additional children from prior marriages.

Following extensive motion practice, on March 9, 2006, plaintiff appealed from orders entered in the Family Part on May 12, 2005, denying reduction of child support, and on December 16, 2005, requiring plaintiff to pay one-half of the private Hebrew school tuition and unreimbursed medical expenses for the three boys. We issued an unpublished opinion in the matter on June 12, 2007. Scheiner v. Eisenberg, No. A-3938-05T1 (App. Div. June 12, 2007).

On appeal, plaintiff "attested that his current wife was expecting her second child and he could not afford to pay the $264 per week in child support as ordered in the judgment of divorce. He sought a reduction to $150 per week. He objected to defendant's cross-motion seeking an order for him to pay one-half of the children's private school tuition." Slip op. at 2. However, on appeal plaintiff failed to furnish the transcripts of the hearings on motions that led to the orders for which he sought reversal, as required by Rule 2:5-3(b), and he failed to provide the child support worksheets that should have been appended to the orders from which the appeals were taken. R. 5:6A. As a consequence, we determined that we were unable to decide whether the trial court applied the Child Support Guidelines correctly or otherwise gave fair consideration to the motions. Slip op. at 4. Nonetheless, we quoted at length from the opinion of Judge Herman in Martinez v. Martinez, 282 N.J. Super. 332, 340-42 (Ch. Div. 1995), which discusses the considerations applicable to motions by divorced spouses to reduce child support because of remarriage and the birth of additional children. We also stressed the obligation of the trial court to undertake an analysis under the Child Support Guidelines to determine whether changed circumstances warranted modification of the movant's support obligations. Slip op. at 5. We concluded by stating:

if the trial court failed to undertake an analysis under the Child Support Guidelines either in writing or on the record, as required by R. 5:6A, plaintiff should make an application for the trial court to do so before he files a new appeal. Similarly, if the trial court failed to append a worksheet to the orders, as required by R. 5:6A, plaintiff should make an application for the trial court to do so.

[Slip op. at 6.]

The history of a visitation dispute that figures in the present appeal predates our opinion of June 12, 2007. On November 18, 2005, defendant filed an order to show cause why plaintiff's visitation with his three sons should not be suspended after an incident during which plaintiff shoved his oldest son into a waiting car in a fashion that caused the son minor injury. In an order dated December 6, 2005, the court required, among other things, that the parties meet with a mediator to determine a parenting plan, and until that plan was established, plaintiff was to have supervised visitation with the oldest child and parenting time with the parties' two youngest children on alternating weekends from Friday night to Saturday night and on Thursday evenings. Because a supervisor was not chosen by the parties, plaintiff's visitation with his oldest son has not resumed. Plaintiff refused to consent to the order embodying the parenting plan developed in mediation. Thus, his visitation schedule remained unchanged.

On April 20, 2007, the court entered an order suspending plaintiff's parenting time with his middle son after that son commenced speaking of death and suicide. Plaintiff was subsequently authorized to participate in therapeutic visitation with the son in the presence of a psychologist chosen by plaintiff, Jonathan Frohlich. However, plaintiff attended only two or three such sessions before failing to appear or to reschedule.

Further motions were filed. On July 11, 2007, plaintiff moved to modify child support, vacate a bench warrant issued for non-payment of child support, and modify plaintiff's obligation to pay one-half of the children's school tuition and unreimbursed medical expenses. On September 7, 2007, the court entered an order that denied relief to plaintiff, but stated:

Plaintiff shall submit a fully executed case information statement with all required attachments to defendant. Upon her receipt of same, defendant shall forward a fully executed case information statement with all required attachments within 30 days. The parties shall negotiate in good faith the child support. If unsuccessful, a motion may be filed.

Later that month, plaintiff filed another motion seeking an increase in parenting time and a "stay of current child support." Defendant opposed the motion and cross-moved for counsel fees. In her certification, defendant stated:

Plaintiff has once again submitted an incomplete Case Information Statement without the required three most recent paystubs. He also failed to provide a complete copy of a filed tax return (he encloses a two page copy of a 2 006 Form 1040A which states in the signature line "For Information Only Do Not File"). The amount shown as income is $23,250.00, although his 2005 tax return shows income of $52,408.00 The plaintiff has not explained this precipitous drop in income. In addition, his Child Support Guidelines Worksheet shows his income to be $615.00 per week, or $32,000.00 per year with no documentation of that amount provided.

In addition, defendant noted that plaintiff had not provided documentation regarding his present wife's income, which is necessary to calculate the other dependent deduction that plaintiff claimed.

On November 5, 2007, the court entered two orders: one awarded defendant counsel fees of $500; the other denied the relief sought by plaintiff. In explanation of the award of counsel fees, the judge wrote:

Fees are awarded pursuant to R. 5:3-5(c) - #3 - Plaintiff has misstated the law as to counsel fees and has provided no support for his other requests for relief. He did submit a CIS and tax information but failed to provide proof of his income and his wife's. This attempt to comply with the 9-7-07 order is the reason the full fee of $945.50 is not awarded (#9). Defendant has prevailed on the issues raised by plaintiff (#7).

In connection with the issue of child support, the court noted that no appeal was pending, warranting a stay. He also wrote:

NOTE: On 9/7/07, the court ordered plaintiff to submit a fully executed case information statement with all required attachments to defendant. Once received, defendant was to do the same. Plaintiff has provided no verification of his income, asserting he is not a W-2 wage earner. Unless he is paid by cash and maintains no records (in this day and age that is not a reasonable business practice), he must submit proof. If he wishes to have defendant consider his 2 subsequently born children, he must provide proof of his current wife's income (see child support guidelines Appendix IX-A 10(1). If he provides proof of his own income but not his wife's, defendant shall provide a fully executed CIS and may calculate child support without regard to plaintiff's subsequent children.

On December 9, 2007, plaintiff filed a further motion to change visitation and to enforce litigant's rights. In support of his motion, plaintiff stated that he should be permitted to see his middle son, unsupervised, "ASAP" because there was a current order of December 6, 2005 in effect that should be enforced. In a proposed form of order, plaintiff requested the following relief:

a. Enforce the December 06, 2005 order & for alternate Jewish Holidays with Plaintiff & 2 kids.

b. Enforce the September 7, 2007 order for lowered child support as per the order.

c. Deny Defendant's Counsel fees as this is unfair and their motions are in bad faith.

d. Increase visitation in the best interests of the children sua sponte. Reverse bench warrant order.

Plaintiff accompanied his motion with a Child Support Guidelines Sole Parenting Worksheet and weekly summaries of wages allegedly pertaining to amounts earned by plaintiff and his present wife during their employment by Big Bear Consulting Corp. Three summaries were provided for plaintiff and three for his wife. However, the summaries appear to have been prepared by the plaintiff, and they are wholly uncorroborated.

Defendant opposed plaintiff's motion and cross-moved for an order declaring plaintiff to be in violation of litigant's rights; applying any reduction in weekly child support to the weekly payment toward arrears; requiring plaintiff to pay his one-half share of the children's tuition and unreimbursed medical expenses within thirty days or face arrest; and requiring plaintiff to pay defendant's counsel fees. In her certification in support of the cross-motion, defendant noted that, as of September 28, 2006, plaintiff was $53,854.53 in arrears in his child support obligation, and that plaintiff was presently paying only $186 per week. Plaintiff also noted that she had submitted a Case Information Statement and a Federal Income Tax Form 1099 that was limited to her own income and, although joint tax returns had not been provided, they were available for the court's in camera review. Significantly, defendant stated:

My attorney has prepared a child support worksheet in which she has averaged plaintiff's 2005 and 2006 income resulting in a weekly income to plaintiff of $721.00. This results in a child support amount of $240.00 due from plaintiff.

She noted, as well, that although plaintiff had claimed "other dependent" deductions for the two children born during his second marriage, plaintiff had not provided evidence of his wife's income, as the court order required. Defendant stated that plaintiff's share of the children's unreimbursed medical expenses was $4,974.15 and that his share of tuition was $21,350 for the school years 2005 to 2008.

In an order dated February 29, 2008 and entered on March 7, 2008, the court denied the relief sought by plaintiff in its entirety. In written findings made by the judge on the order, he stated:

The Court notes that the order of December 6, or 16, 2005 does not grant plaintiff alternate Jewish Holidays. In addition, he asserts no facts at all to support an allegation that defendant failed to honor the order as to the terms stated.

Plaintiff asserts defendant failed to honor the September 7, 2007 order. That order was not submitted to the Court. It may be plaintiff is accusing defendant of not submitting a CIS. If so, defendant did submit a CIS dated December 17, 2007.

As to additional parenting time, plaintiff first submits a desire for more, but offers no facts or reasons in support. The Court notes access is limited and supervised. Not the slightest justification is offered to warrant a modification.

As to fees, there is nothing in his "certification" on this issue. In his form of order, he asks the Court to find fees to be unfair. It is not clear whether he means past or present. Fees may be sought pursuant to R. 5:3-5(c).

In a second order dated March 4, 2008 and drafted by defendant's counsel, the judge denied the relief sought by plaintiff, found plaintiff to be in violation of litigant's rights for failure to pay financial obligations to the children, required plaintiff to pay his share of unreimbursed medical expenses and tuition or face arrest, and ordered plaintiff to pay counsel fees of $1,200. The judge wrote:

Plaintiff has been ordered to pay previous one half of children's medical and tuition expenses. He has failed to do so. He is substantially in arrears as to child support. His motion was simply a request without offering any basis to grant the relief. He asked to enforce the 12-06-05 order as to holidays but the order did not say that. He wanted the 9/7/07 order enforced but did not provide it and didn't explain her alleged non-compliance. Fees are awarded therefore. See R. 5:3-5(c) -3- his positions are unreasonable and not in good faith -7- he has not supported his own requests -8- this X-motion is an enforcement motion. He has failed substantially to meet his obligations.

On March 24, 2007, plaintiff timely appealed from the two orders filed on March 4, 2007. While this appeal was pending, on March 24, 2008, plaintiff moved before a panel that included one of the judges on his initial appeal for immediate reinstatement of visitation and disposal of an arrest warrant. The motion was denied in an order dated May 7, 2008. In connection with that motion, it was noted that plaintiff's attempt to appeal from orders other than those filed on March 4, 2008 was untimely. We noted further:

If plaintiff wishes to appeal the March 4, 2008 order, he must do so by Notice of Appeal in accordance with the court rules and provide the necessary transcripts, child support worksheets and other documentation so that we have the full record of the matter being appealed.

Plaintiff has supplied no further documentation.

Prior to the determination of plaintiff's motion before us, on April 10, 2008, a hearing was held by the trial court on defendant's claim that plaintiff had failed to pay child support. He was taken into custody on the condition that he be discharged upon payment of $1,100 and that he thereafter pay support of $286 per week and arrears of $50 per week for a total of $336 per week. The order provided that if plaintiff missed two payments, an arrest warrant could issue. On June 17, 2008, an order was issued for plaintiff's arrest as the result of his failure to pay tuition and unreimbursed medical expense.

Additionally, while this appeal was pending, in January 2009, plaintiff's right to visitation with the any of the parties' children was suspended pending a parenting time evaluation of the three children by psychologist Amie Wolf and further order of the court. Plaintiff was ordered to be solely responsible for the payment of Dr. Wolf's retainer and any additional fees. In a statement of reasons accompanying the order, the judge reported that anxiety and stress to the youngest child caused by plaintiff's inconsistent adherence to the Thursday visitation schedule and the child's unwillingness to use plaintiff's bathroom while visiting overnight appeared to have caused the child to lose bowel control during and after visits with his father incontinence that should not exist in a nine-year-old. The judge further noted that the boy's treating psychologist believed that plaintiff was a destabilizing influence on the child. It does not appear that the evaluation by Wolf has occurred, because plaintiff has not paid the necessary fees. In an order dated December 30, 2008, the parties were authorized to include this matter in the present appeal.

On appeal, plaintiff again challenges the court's denial of his motion to reduce child support payments as the result of a change in circumstances pursuant to Lepis v. Lepis, 83 N.J. 139 (1980). However, our review of the record satisfies us that plaintiff never provided prima facie evidence that a change of circumstances had occurred. Although plaintiff provided a Case Information Statement, he did not include his three most recent pay stubs, but rather, informal pay summaries relating to himself and his current wife that appear to have been self-generated. The two-page 2006 tax form 1040A, without attachments, submitted by plaintiff with his motion states: "For Information Only - Do Not File." Little explanation is given for the decline in income set forth on the tax return from $52,408 in 2005 to $23,250 in 2006 or for the discrepancy in incomes set forth on the tax return and the Child Support Guidelines Worksheet offered by plaintiff. Moreover, although plaintiff sought to obtain the benefit of the other dependent deduction on the Worksheet, plaintiff did not supply sufficient information regarding his present wife's income. Thus, the full disclosure of financial status, required by Lepis, supra, 83 N.J. at 157, never took place.

While defendant appears willing to accept a decrease in present child support (without surrender of her right to arrears), that decrease cannot be ordered on the basis of the present record. Once again, therefore, we affirm the trial court's denial of plaintiff's motion for reduction in child support. In reaching this conclusion, we note the trial court's frequent notification to plaintiff of the need to submit proof of income; we note that the lack of adequate documentation led to our prior affirmance of the trial court's denial of plaintiff's prior motion for reduction in child support; and we note our instruction to plaintiff, in our March 4, 2008 order, that he supply "child support worksheets and other documentation" that would provide a full record in this matter. If, in the future, plaintiff again seeks a reduction in child support, the documentation required by Rule 5:6A and Appendix IX is required.

We find no merit in plaintiff's argument that the trial court exceeded its discretion in ordering his arrest for failure to pay child support, tuition and unreimbursed medical expenses. R. 2:11-3(e)(1)(A) and (E). There is ample evidence that plaintiff owed a substantial amount of child support, along with lesser amounts for tuition and unreimbursed medical expenses. Plaintiff has offered no evidence that his custody was dependent upon conditions that he was financially unable to meet or that it violated the strictures set forth in Pasqua v. Council, 186 N.J. 127 (2006) and AOC Directive #15-08 (November 17, 2008).

We likewise reject plaintiff's argument that the trial court erred in entering an order for his arrest as the result of plaintiff's failure to pay defendant's counsel fees. No such order appears in the record.

As a final matter, we find no error in the court's determination to appoint Dr. Amie Wolf as the parenting time evaluator for the parties' three children and imposing the evaluation costs on plaintiff. Contrary to plaintiff's representations, the determination did not occur in an ex parte proceeding. Plaintiff was notified of the hearing, and when he called to state that he would be late, the hearing was delayed for a reasonable period of time. After that time had elapsed and plaintiff still had not appeared, the hearing was conducted on the record. Motion papers and hearing arguments disclosed prima facie evidence that visitation with plaintiff was having a harmful effect on the children. The court acted appropriately in seeking expert advice to evaluate that evidence and other issues related to visitation prior to permitting such visitation to occur.

Affirmed.

 

A motion for reconsideration of the December 16 order was denied in an order dated February 8, 2008. Plaintiff's notice of appeal indicates that his appeal was from the February order.

The judge's subsequent order stated that no warrant was in place.

The trial judge confirmed that this discovery was supplied by defendant, and it appears in the record on appeal. The trial judge appears not to have sought defendant's joint tax returns.

Orders were issued on both days. Because the date on plaintiff's motion has been overwritten, it is unclear which order he relied upon.

Plaintiff states merely that: "I opened my own business and being that it is the first year I have had a decrease of income." He explains the lack of paystubs by stating that he is self-employed. Additionally, he claims that because his present wife is self-employed, she lacks pay stubs.

(continued)

(continued)

2

A-3516-07T3

November 6, 2009