JOEL A. FRIEDMAN v. MICHELLE P. FRIEDMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6381-08T26381-08T2

JOEL A. FRIEDMAN,

Plaintiff-Respondent,

v.

MICHELLE P. FRIEDMAN

(n/k/a FRANK),

Defendant-Appellant.

________________________________

 

Submitted: June 3, 2010 - Decided:

Before Judges Stern, Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-495-00D.

Michelle P. Frank, appellant pro se.

Joel A. Freidman, respondent pro se.

PER CURIAM

Defendant former wife appeals from orders of the Family Part entered on June 17 and August 3, 2009. In the former child support was decreased, and in the latter reconsideration was denied.

The parties have two children, now fifteen and twelve years old. By "consent order" dated July 6, 2004, the parties agreed that "plaintiff shall pay child support in the amount of $245.00 per week" effective June 16, 2004, based on the child support guidelines. In January 2009, defendant moved for "a re-calculation of plaintiff's child support obligation based upon the income as reported in his 2007 tax return" as adjusted "for his income in excess of the Guidelines as well as expenses he has deducted that are not permitted." In an order filed March 9, 2009, the judge ordered the recalculation would occur. The order further denied defendant's request that the recalculation be "retroactive to January 3, 2008," but made it "retroactive to November 1, 2008." By order dated May 4, 2009, defendant's motion for reconsideration was denied, and previously ordered discovery was completed in advance of a plenary hearing scheduled for May 8, 2009. Following that hearing, plaintiff was ordered to produce his 2008 income tax return.

On June 17, 2009, the Family Part judge set the revised child support, under the Child Support Guidelines, at $235 a week, retroactive to November 1, 2008. In fixing the amounts, the judge determined that defendant pay twenty-two percent of the unreimbursed medical expenses.

Defendant makes a number of arguments addressed to the use of inappropriate figures within the meaning of the Guidelines, asserts the amount set was wrong, and claims the judge erred in setting the amount and in setting the retroactive date for the decreased amount. She also claims the original return date on plaintiff's motion should have been adjourned because she did not have counsel and that the request for oral argument on the motion for reconsideration should have been granted when she retained counsel.

The motion for reconsideration of the June 17 order, dated July 2, 2009, requested oral argument, and on July 23, 2009, one week before the July 31 return date, a substitution of counsel was filed. Leonard K. Busch was substituted for the pro se defendant. The August 3, 2009, order provided that defendant's motion for reconsideration was denied except for the request that the court "set forth on the record its findings of fact and conclusions of law relative to the relief requested herein." In his oral statement of reasons the judge noted defendant "has failed to provide the Court with either case law" or any fact "the Court overlooked or erred" in considering. The judge, in essence, further stated that he set the $235 figure in accordance with the Guidelines.

We remand for further proceedings at which issues related to the amount of child support and the effective date or dates of adjustments are established after the court conducts oral argument addressed to those subjects. Without faulting the Family Part judge for hearing the original motion as scheduled, defendant was entitled to oral argument because it was requested on the motion for reconsideration. R. 5:5-4(a). The issues raised on the motion for reconsideration did not deal with a discovery or calendar issue. Defendant was entitled to argument on the motion as it was timely requested in the notice of motion, and the fact she had counsel for the motion may have had an impact. There is no dispute argument was requested. Hopefully argument will focus on the issues, let the parties address them, and result in a statement of findings and reasons therefor. In order to aid the consideration of issues on remand, we note our concerns regarding the Family Part judge's prior conclusions.

The judge stated at the hearing of June 12, 2009, that although he had not yet recalculated the child support, his recalculation of child support would be based on plaintiff's 2008 tax return, and addressed the figures therefrom and Guidelines at length. The judge stated that, within a few days, he would recalculate the child support obligations based on the figures reviewed and that the revised child-support obligations would be retroactive back to November 1, 2008. On June 17, 2009, he issued the order which, retroactive to November 1, 2008, set plaintiff's support obligation at $235 per week. There was no statement of reasons addressed to the figures used.

In his decision on the motion for reconsideration hearing the judge noted that plaintiff had chosen to represent herself at the May 2009 plenary hearing. He then recounted that

defendant, on several times, at least two to the Court's memory when motions were pending, the defendant was requesting postponements of the motions to permit her to retain services of attorney. She never did so.

Even after the filing of this motion for reconsideration, she apparently contacted the law firm of Busch and Busch asking them, retaining them to be with her on oral argument. The Court declined to grant the oral argument; instead opting to decide this motion for reconsideration on its papers.

Addressing the merits of defendant's motion for reconsideration of the June 2009 child support order, the judge noted that he had conducted a plenary hearing on May 8, 2009, and then another hearing on June 12, 2009, where defendant was asked if she wanted to add any further response or information in support of her motion in recalculation of child support, and she declined. The Family Part judge explained that he was rejecting the motion for reconsideration because the defendant had

failed to provide the Court with any either case law or statement as to what the defendant believes the Court overlooked or erred in making this determination.

The Court appropriately indicated that the defendant's income was based upon a consent order that had been entered in 2004. The Court also did the calculations with regard to what the prior orders in this case mandating . . . adding back to the . . . plaintiff's income certain expenses that the plaintiff had deducted from his law practice.

And, accordingly, the Court re-determines that the defendant's Motion For Reconsideration has not provided any . . . additional information or case law that would require a change in the June 17, 2009 order. Accordingly, her request to vacate the June 17, 2009 order is denied.

Defendant's . . . motion also requests that she be permitted to engage in discovery, pursuant to . . . but not limited to the appointment of a forensic accountant to analyze the plaintiff's tax returns and any collateral information, and that the cost of the accountant be advanced by the defendant and subject to reallocation.

That's denied. Similarly, the Court has determined that the . . . the defendant did, in fact, have an opportunity to bring this information to the Court's attention that she may have wanted - both at the May 8, 2009 Plenary Hearing as well as the June 12, 2009 court proceeding on a reconsideration. And so, therefore, her request will be denied.

Next, the defendant's motion requests that the Court reconsider the retroactive date for the modification of the child support as originally set forth in the Court's March 9, 2009 order. Similarly, that is denied.

The defendant had requested a . . . modification of that March 9th order prior to this. The decision stood at that point that the retroactive date would be November 1st of 2008. . . . [T]he Court sees no reason to change what it has decided, both on March . . . and on the motion for reconsideration of that.

Defendant's motion requesting a retroactive increase in child support to $356 per week, effective January 3rd of 2008, is denied for the same reasons.

The . . . Court has done its calculation, determines that, pursuant to . . . [the] June 17, 2009 order, the appropriate amount of child support weekly is $235.

As previously noted, reconsideration was denied because nothing new was presented. But all we know as the reasons for the amount set is that the judge did the calculations under the Guidelines. We can find no responses to the specific concerns or objections raised by defendant with respect to the figures used by plaintiff in his returns. Moreover, our review of the record and figures used suggests that the judge may have confused "adjusted gross taxable income" on line 2 of the "Child Support Guidelines Shared Parenting Worksheet" with "adjusted gross income" from plaintiff's 2008 federal income tax return. However, the definition of "adjusted gross taxable income" as used in the New Jersey child support guidelines differs from the similar term "adjusted gross income," which is used in federal income tax returns. The Child Support Guidelines explain how to determine "adjusted gross taxable income" in the child support worksheet. The Family Part judge may have erred in calculating the child support order by using the federal income tax definition of adjusted gross income rather than calculating adjusted gross taxable income as directed by the Child Support Guidelines. Even if the judge decided to deviate from the guidelines, he did not state any reasons for the figures he used. But see R. 5:6A. See also R. 1:7-4(a); Alpert, Goldberg v. Quinn, 410 N.J. Super. 510, 544 (App. Div. 2009); Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002).

The matter is remanded for further proceedings and argument on the motion for reconsideration and for a further statement of reasons for the decision to be rendered.

 
Remanded. We do not retain jurisdiction.

The order was dated July 31, 2009, but filed August 3, 2009. A transcript of August 3, 2009, contains the judge's statement of reasons, as hereinafter detailed.

In the transcript of March 9, 2009, the judge said that defendant's application was filed in January 2009 but it had been delayed because plaintiff delayed in providing his 2007 tax return. The judge noted that plaintiff therefore had "no objection to the modification being retroactive to November 1st of 2008, and it will be."

The June 17, 2009 order followed evidentiary hearings on May 8 and June 12, 2009. At the conclusion of the June 12 hearing, the judge indicated he would render his decision based on calculations in writing.

The motion was entitled "Notice of Motion for Reconsideration (Oral argument Requested)," and expressly asked for oral argument in the body.

(continued)

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9

A-6381-08T2

June 21, 2010