KATHY YASIKA v. WILLIAM SAUNDERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4575-10T2

KATHY YASIKA f/k/a

KATHY SAUNDERSON,

Plaintiff-Respondent,

v.

WILLIAM SAUNDERSON,

Defendant-Appellant.

________________________

February 9, 2012

Argued January 24, 2012 - Decided

Before Judges Payne and Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-16-000003-06.

Christopher De Falco argued the cause for appellant.

Toni Belford Damiano argued the cause for respondent.

PER CURIAM

Defendant William Saunderson appeals from an April 11, 2011 Family Part order finding him in violation of litigant s rights for failing to pay unreimbursed medical expenses and failing to provide proof of life insurance; requiring him to pay plaintiff Kathy Yasika $1399.73 for one-half of their children s unreimbursed medical expenses; requiring him to provide proof of life insurance; and requiring him to pay plaintiff s counsel fees. We affirm.

I

The parties, who have two minor children, were divorced in Sussex County on October 5, 2000. The parties Property Settlement Agreement (PSA) provided that defendant would pay $200 per week in child support. The PSA also contained a clause prohibiting retroactive modification of child support "except for the period during which a party seeking relief has pending an application for modification." The parties agreed they would each pay half of their children s unreimbursed medical expenses. And they agreed that defendant would keep the children on his health insurance unless he lost his job, in which case plaintiff would arrange for the insurance coverage through her employment. Each party agreed to maintain a $200,000 life insurance policy "naming the other party as trustee . . . for the benefit of the children."

Defendant remarried. Because defendant s second wife was named "Kathy" and took defendant s last name, plaintiff, who had resumed her original last name of "Yasika," asked defendant to change the name of the trustee on his life insurance policy to "Kathy Yasika." When he failed to show proof of insurance in her new name, plaintiff filed a motion for that relief in 2005. By order dated June 24, 2005, Judge Farber ordered defendant to provide proof within thirty days that he had a life insurance policy "in the face amount of $200,000 for the benefit of the unemancipated children of the marriage naming the Plaintiff, Kathy Yasika as Trustee thereof." Because defendant had lost his job, and obtained new employment at a lower salary, the order also granted defendant s cross-motion for a reduction in his child support obligation to $188 per week. The June 24, 2005 order transferred the case to Passaic County for all future legal proceedings, since plaintiff and the children had moved to that county.

In February 2011, plaintiff filed a motion to enforce litigant s rights, contending that after years of complying with the PSA, defendant was now refusing to pay for his share of the children s medical expenses. She also asserted that defendant was refusing to provide proof of life insurance and that the insurance company would not respond to her requests for information.1 She sought counsel fees for the motion. Her attorney submitted a certification of services.

Defendant filed opposition, and a cross-motion seeking the return of $9735 "improperly collected by Plaintiff from Defendant for health insurance premiums." He claimed that his $188 child support obligation, set in 2005, included a component for plaintiff s payment of health insurance premiums for the children, which was necessary because he was temporarily unemployed. He contended, however, that plaintiff had not been incurring that insurance expense since 2007 when he obtained new employment and once again put the children on his health insurance policy. He argued that he was entitled to a refund of what he claimed was excess child support that he had paid. He also argued that, because he had voluntarily refrained from seeking a downward adjustment of his child support payments since 2007, his "overpayment" should be credited against his obligation to pay his share of the children s unreimbursed medical expenses.

In his motion papers, defendant also certified that his attorney had provided plaintiff s attorney proof in 2005 that he had changed the trustee s name on the life insurance policy to "Kathy Yasika." He attached a copy of a 2005 application to change the name, and a 2005 letter from the insurance company confirming the change. However, he did not attach a declarations page to demonstrate that there was currently any such policy in force.

In her reply certification dated March 24, 2011, plaintiff contended that because defendant was already paying for family coverage for the children of his second marriage, it cost him nothing extra to add the parties children to that policy, and defendant had never asked her to reimburse him for any insurance overpayments. She also pointed out that the PSA required defendant to provide the children with health insurance. Plaintiff denied receiving a copy of the alleged application to change the name on defendant s life insurance policy, but clarified that what she had asked for all along a was "a copy of the actual policy," which defendant had never provided.

Apparently, defense counsel failed to include the filing fee with his cross-motion and his motion opposition. When that deficiency was corrected, his submissions were filed albeit with a later filing date. On March 29, 2011, defendant s counsel sent a letter to Judge Ronny Jo Siegal, confirming that her chambers "had just received" defendant s motion papers, and expressing his understanding that this would give the judge less time to review them before the April 1 return date. He also indicated that his adversary was "agreeable to however your Honor wishes to handle the Return Date" but she was not available on the next motion day "should Your Honor wish to hear the matter orally." Nothing in this March 29 letter suggests that the judge had refused to consider defendant s motion papers or that defendant was insisting on oral argument. Further, despite plaintiff s March 24 clarification that she was seeking proof of current life insurance, defendant still did not provide the court or plaintiff s counsel with a copy of the life insurance policy.

Judge Siegal decided the motion and cross-motion on the papers on April 11, 2011. She granted plaintiff s motion, in relevant part, and denied the cross-motion in a separate order also dated April 11. In a written statement of reasons she explained the basis for her decision, including defendant s failure to file a properly-supported motion to reduce child support, as required by Rule 5:5-4(a):

It appears that defendant claims that plaintiff has been credited with carrying the health insurance for the parties children since June 24, 2005 when she assumed that obligation because defendant became unemployed and when he resumed employment and recommenced health insurance coverage for the children on or about May 13, 2007 a child support adjustment was not made. First, defendant has failed to make an application for approximately four years. Second, even if the Court were to consider the application he has not complied with R. 5:5-4(a). Third, defendant does not ask for a readjustment of child support; rather he asks for the money [to be] returned to him.

II

On this appeal, defendant repeats the arguments he made before the trial court, alleging that he had a right to stop paying his share of the children s medical expenses as an offset against what he claims was an overpayment of child support. He also contends that the 2005 order required plaintiff to pay for the children s health insurance, thus permanently modifying the provision of the PSA requiring him to pay for their health insurance if he had a job that provided health benefits. These contentions are without sufficient merit to warrant discussion in a written opinion, beyond the following comments. R. 2:11-3(e)(1)(E).

The PSA specifically prohibits retroactive modifications of child support, except for relief beginning as of the date of filing of a motion to modify support. If defendant believed he was entitled to a further downward adjustment of his child support obligation when he obtained health insurance for the children in 2007, he was required to file a timely motion for that relief. He was not entitled to exercise self-help by refusing to pay his share of the children s unreimbursed medical expenses, in violation of the PSA.

We also agree with Judge Siegal that defendant violated the 2005 order in failing to provide proof of life insurance. Had defendant provided a properly authenticated copy of a declarations page showing a current policy in the amount of $200,000, in the name of Kathy Yasika as trustee, we would agree that sanctions were not warranted. But even after plaintiff explicitly explained that she was seeking a copy of the "actual" policy, defendant was apparently either unwilling or unable to do what any reasonable litigant in his position should have done produce a copy of the policy. The judge did not abuse her discretion in assessing counsel fees for defendant s unreasonable conduct in failing to produce the policy and in refusing to pay his share of the children s unreimbursed medical expenses. See Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).

Finally, defendant contends that the motion judge refused to consider his motion opposition and cross-motion, and that the judge should not have decided the motion without oral argument. These arguments are likewise without merit. It is clear from the judge's statement of reasons that she did consider defendant s motion opposition and cross-motion and rejected them on the merits. We find no abuse of the judge s discretion in deciding the motion and cross-motion on the papers, particularly since both sides had agreed that the judge could exercise that discretion. Moreover, defendant s motion opposition and cross-motion were utterly without merit, and requiring oral argument would not have changed the result; it would only have increased the counsel fees associated with the motions. See Palombi v. Palombi, 414 N.J. Super. 274, 285-87 (App. Div. 2010). Affirmed.

1 Plaintiff also sought relief with respect to a Qualified Domestic Relations Order, but that is not the subject of this appeal.