SHAUN MORRISON v. ALEXIS PALM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3711-07T33711-07T3

SHAUN MORRISON,

Plaintiff-Respondent,

v.

ALEXIS PALM,

Defendant-Appellant.

____________________________________________________________

 

Submitted December 16, 2008 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County,

Docket No. FD-20-1294-06M.

Alexis Palm, appellant pro se.

Shaun Morrison, respondent pro se.

PER CURIAM

Plaintiff Shaun Morrison and defendant Alexis Palm are the parents of one child, a daughter, born on May 20, 2005. After participating in mediation, the parties agreed they would share joint legal custody of their daughter and defendant would be the parent of primary residential custody. Defendant appeals from an order entered on March 5, 2008, which reduced plaintiff's child support obligation from $141 to $80 per week. Because of procedural infirmities and the court's failure to make adequate findings of fact, we reverse and remand for discovery and a plenary hearing.

After the court referred the parties to mediation, they entered into three separate consent orders. In the first order dated April 18, 2006, it was agreed plaintiff would pay child support in the amount of $200 per week. In addition, plaintiff agreed to pay child care costs of $125 per week, and he agreed to "maintain the child on his health insurance and pay all out [of] pocket medical expenses." The parties also agreed they would return to mediation in July 2006, to adjust child support when defendant "completed school."

On August 24, 2006, after defendant had completed school and she was employed as an "ultrasound tech," the parties entered into their second consent order, which reduced plaintiff's support payment to $162 per week. In addition, plaintiff agreed "to maintain health insurance on the child and [to] pay the child's unreimbursed medical expenses." A child support guidelines worksheet attached to the order showed plaintiff's gross taxable income was $1000 per week, and defendant's gross taxable income was $600 per week.

In a third consent order dated August 14, 2007, the parties agreed plaintiff's support obligation would be reduced from $162 to $141 per week. In addition, plaintiff agreed to maintain health insurance for the child, to pay the child's unreimbursed medical expenses, and to pay one-half of the child's "school tuition." According to the worksheet attached to the order, plaintiff's gross taxable income was still $1000 per week, but defendant's gross taxable income increased from $600 to $920 per week. The worksheet also stated plaintiff's child support payment exceeded the amount shown on the child support guidelines schedule because the parties agreed "to the averaged figure between the sole and joint parenting figure of $141."

In January 2008, plaintiff sought to reduce his weekly child support payment because the child was attending a pre-school program on a full-time basis, and the parties no longer had to pay for the expense of a babysitter. The parties attempted mediation on February 5, 2008, however, they were unable to agree and the matter was referred to the court for a hearing, which took place on March 5, 2008.

At the outset of the hearing on March 5, 2008, the court advised the parties that plaintiff's support payment "according to the guidelines" was $80 per week. Moreover, as demonstrated by the following colloquy, the court adopted the calculations set forth in a child support guidelines worksheet without taking testimony and without determining whether the worksheet information was accurate:

THE COURT: All right. Would you -- is this amount here in this worksheet, . . . this $80 here? Something that is constant, that --

UNIDENTIFIED: Yeah, that's just -- it printed out. There's no such thing as the other deduction because neither party has any other children. They just -- that's --

THE COURT: Is this, is this --

UNIDENTIFIED: -- (Indiscernible) -- that's constant, yes.

THE COURT: If this were . . . a zero here?

UNIDENTIFIED: Yeah, it would still be 80.

THE COURT: The computer gives you that information?

UNIDENTIFIED: Uh-huh, yes.

THE COURT: Be careful.

UNIDENTIFIED: Yes, I see. Okay, so it came out to 80.

THE COURT: This is what he's getting from the worksheets. Okay. Anything else?

At that point, defendant advised the court that plaintiff owned his own business, and that he had taken "bonuses . . . on top of his pay" during the time the parties were together. Notwithstanding defendant's concerns, she was not given an opportunity to testify or to question plaintiff concerning his income or other financial benefits that he may receive from his business.

On appeal, defendant presents the following arguments:

POINT I

IN LIGHT OF PERCEIVED CONFLICT OF INTEREST ON PART OF LONG-TERM MEDIATOR, ISSUE OF ONGOING REDUCTION IN CHILD SUPPORT WARRANTED SCRUTINY.

POINT II

THE FAMILY PART ERRED BY NOT GIVING THE OPPORTUNITY FOR A FAIR HEARING ON THE FINANCIAL STATUS OF SELF-EMPLOYED PLAINTIFF AFTER DEFENDANT-MOTHER OBJECTED TO ONGOING REDUCTION IN CHILD SUPPORT.

We are satisfied defendant's first point does not require extended discussion. Prior to the commencement of the mediation session on February 5, 2008, the mediator disclosed he had an MP3 player installed in his vehicle at plaintiff's place of business since the last mediation session, which had taken place in August 2007. Nevertheless, defendant agreed to proceed with mediation, which was unsuccessful. Thus, the mediator discharged his duty of disclosure pursuant to N.J.S.A. 2A:23C-9, and there was no prejudice to defendant because no agreements were reached during the mediation session on February 5, 2008.

In her next point, defendant contends she did not receive "a fair and thorough hearing on the issue of Mr. Morrison's finances." In an effort to show that plaintiff "may have been underreporting his income," defendant served him with a notice in lieu of subpoena on February 9, 2008, which required him to bring various business documents, including business tax returns, to court on March 5, 2008. Nevertheless, it is unclear from the record whether plaintiff produced his business records and tax returns because the court did not specifically identify the documents that it relied on. Moreover, our review of the record confirms that defendant was not given an adequate opportunity to testify or to present evidence regarding her concerns, and she was not allowed to question plaintiff regarding his finances or the compensation that he receives from his business.

Under these circumstances, we are convinced that the matter must be remanded for discovery and a plenary hearing. See Doe v. Poritz, 142 N.J. 1, 106 (1995) ("Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner."); see also State v. Castagna, 187 N.J. 293, 309 (2006) ("[C]ross-examination . . . has been described as 'the greatest legal engine ever invented for the discovery of truth.'") (quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970)).

At the remand hearing, the court must ensure that the proper parenting worksheet is used to calculate plaintiff's child support obligation, and it must make appropriate findings and conclusions regarding each of the entries on the worksheet. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions."). In addition, both parties must be given an opportunity to testify and present evidence, and to conduct cross-examination.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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A-3711-07T3

January 13, 2009