D.W. v. P.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

D.W.,

Plaintiff-Respondent,

v.

P.W.,

Defendant-Appellant.

________________________________________________________________

December 19, 2013

Submitted November 13, 2013 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-603-01.

Bernstein & Manahan, L.L.C., attorneys for appellant (James P. Manahan, of counsel and on the briefs).

Szaferman, Lakind, Blumstein & Blader, P.C., attorneys for respondent (Brian G. Paul, of counsel and on the brief).

PER CURIAM

These parties have engaged in extensive trial and appellate litigation resulting in three prior appellate decisions. [D.W. v. P.W.], No. A-1449-03 (App. Div. July 7, 2005) (D.W. I); D.W. v. P.W., No. A-6227-07 (App. Div. March 10, 2009) (D.W. II); D.W. v. P.W., No. A-2534-09 (App. Div. Nov. 18, 2010) (D.W.III). The plaintiff father, D.W., now has sole custody of the parties' two children, an older daughter and younger son. Defendant mother, P.W., appeals from a January 27, 2012 order denying reconsideration of an amended order entered by the Family Part on November 17, 2011. Although she does not list the November 17 order in her notice of appeal, Points III through X of her brief seek reversal of provisions in that order. We will therefore address the order in the interest of completeness. In pertinent part, the November 17 order reduced her child support but denied her pro se application: to reduce the income imputed to her; to hold plaintiff in contempt; for the court to interview the son and then award her sole residential custody of their son; for plaintiff to reimburse her for overpaid or unproven children's expenses; to require plaintiff to return a coin collection; and for counsel fees. The father's application for counsel fees and costs was granted in the amount of $1,630. This order amended a November 4, 2011 order only to add the effective date of the reduction in child support.1 We affirm.

The parties were married in 1986 and divorced in 2003. Although initially they were awarded joint legal custody of the two children, with the mother having primary physical custody, after post-judgment litigation, sole legal and primary physical custody was awarded to the father after an instance of physical abuse by the mother against one of the children.

The mother earned nearly $73,000 in 2003 working as a tax accountant at a Princeton firm. While she claimed she was unable to pursue work at that level because of emotional and psychological stress, in December 2006 the judge imputed her income at $62,500, a number based on her prior earnings and her earning capability as reflected in the Occupational Employment Statistics Wage Survey for Mercer County. See N.J. Dep't of Labor and Workforce Dev., Statewide New Jersey Occupational Wages from the Occupational Employment Statistics (OES),http://lwd.dol.state.nj.us/labor/lpa/employ/oeswage/oeswage_index.html (last visited Dec. 6, 2013). We affirmed this decision on appeal. D.W. III, supra, slip op. at 11-12.

The judge continued this imputation of income in 2011, although the mother's child support was reduced from $175 to $134 per week in light of the father's increased income. The judge noted that although the mother had allowed her CPA license to expire, this loss of credential was of her own doing.

The mother raises the following issues in this appeal:

POINT I: THE COURT ERRED BY DETERMINING DEFENDANT'S MOTION FOR RECONSIDERATION TO BE UNTIMELY.

POINT II: THE MOTION FOR RECONSIDERATION DID ADEQUATELY STATE THE BASIS UPON WHICH IT WAS MADE AND PROVIDED AN ADEQUATE STATEMENT OF THE MATTERS THE COURT HAD OVERLOOKED OR AS TO WHICH THE COURT HAD ERRED.

POINT III: THE COURT ERRED BY NOT GRANTING A PLENARY HEARING AS TO THE ISSUES OF DEFENDANT'S EMPLOYMENT AND ITS FAILURE TO REVISIT HER IMPUTED INCOME CALCULATION.

POINT IV: THE COURT ERRED BY REFUSING TO INTERVIEW THE PARTIES' SON TOWARD A CHANGE-OF-CUSTODY APPLICATION.

POINT V: SUFFICIENT CHANGED CIRCUMSTANCES WERE DEMONSTRATED TO ESTABLISH A THRESHOLD SHOWING FOR THE CHANGE OF CUSTODY APPLICATION FILED BY DEFENDANT.

POINT VI: THE COURT ERRED BY GRANTING PLAINTIFF'S COUNSEL FEES, ENFORCING A PRIOR AWARD OF COUNSEL FEES AND IN DENYING DEFENDANT HER REQUEST FOR COUNSEL FEES.

POINT VII: THE COURT ERRED BY CALCULATING CHILD SUPPORT UPON IMPUTED INCOME NOT SUPPORTED BY THE RECORD AND ITS REFUSAL TO COMPEL PLAINTIFF TO PROVIDE FULL FINANCIAL INFORMATION INCLUDING BUT NOT LIMITED TO PLAINTIFF'S TAX RETURNS.

POINT VIII: THE COURT ERRED BY ITS FAILURE TO HOLD PLAINTIFF IN CONTEMPT FOR HIS ADMITTED AND WILLFUL VIOLATION OF PRIOR COURT ORDERS AS TO:

A. UNPAID ALIMONY

B. FAILURE TO PROVIDE ITINERARIES FOR CHILDREN'S TRAVEL

C. FAILURE TO FOSTER COMMUNICATIONS BETWEEN DEFENDANT AND THE PARTIES' DAUGHTER

POINT IX: THE COURT ERRED BY ITS REFUSAL TO COMPEL PLAINTIFF TO REIMBURSE DEFENDANT FOR OVERPAID OR UNSUBSTANTIATED CHILDREN'S EXPENSES.

POINT X: THE COURT ERRED BY ITS REFUSAL TO NAME DEFENDANT AS DE FACTO TRUSTEE OF THE CHILDREN'S COIN SET WHICH WERE GIFTS FROM DEFENDANT'S FAMILY.

We accord particular deference to the Family Part because of its "special jurisdiction and expertise" in family matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

The mother first argues that her motion for reconsideration was timely and should not have been procedurally or substantively denied. A denial of a motion for reconsideration is reviewed under an abuse of discretion standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). A trial judge has abused his or her discretion where "the 'decision [was] made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Judge Lawrence DeBello denied the mother's motion for reconsideration both substantively and because it was untimely. A motion for reconsideration must be filed within twenty days of receipt of the order. R.4:49-2. The twenty-day period may not be enlarged. R. 1:3-4(c). On December 12, 2011, the mother, through counsel, filed a motion for reconsideration of the November 17 amended order, which she claims she received on November 19.2 She did not submit a supporting certification until January 3, 2012, citing to a sudden, unspecified "medical diagnosis" as reason for the delay. Even if the motion was considered filed on December 12 rather than January 3 when the certification was filed, the motion for reconsideration was procedurally barred as untimely. We therefore agree with the motion judge that this motion was untimely and affirm on that basis.

In order to toll the Rule 2:4-1(a) forty-five-day time to appeal from the November 11 order, pursuant to Rule 2:4-3(e), the motion for reconsideration must be timely filed. Cabrera v. Tronolone, 205 N.J. Super. 268, 271-72 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986). Thus, the mother's appeal of the November 17 order was also untimely filed. We nonetheless will consider her late-filed appeal of that order on the merits in the interest of justice. R. 1:1-2(a).

The mother argues that she was entitled to a plenary hearing before the imputed income attributed to her was continued at the same level. She maintains that the father did not provide sufficient evidence of his current income or the expenses incurred by the children; that he should have been held in contempt for the alimony arrears of $5 he gave her in court; that he failed to inform her of the children's activities or travel itineraries in sufficient detail; and did not foster a better relationship between mother and daughter. Although she did not pursue this issue at the time of the divorce, the mother also argues that coin collections belonging to the children should be transferred to her custody because they were gifts from her family. She also argues that her son should have been interviewed and, based on the son's wishes, his physical custody transferred back to her. Judge DeBello reviewed in detail the history of the prior motions in this matter and the reasons for his decisions. The mother's arguments are without sufficient merit for a written opinion. R. 2:11-3(e)(1)(A). We make only the following comments.

We previously ruled in 2009 that the motion judge had the discretion not to interview the son regarding his desire to live with his mother. D.W. II, supra, slip op. at 17. Children should not be placed in the middle of disputes between parents unless it is absolutely necessary in order to resolve the issues. Judge DeBello acted within his discretion when he again chose not to conduct an in camera interview of the son. R. 5:8-6.

We affirm the family judge's modest award of counsel fees to the father. We will disturb an award of counsel fees "only on the rarest occasions, and then only because of a clear abuse of discretion." J.E.V. v. K.V., 426 N.J Super. 475, 492 (App. Div. 2012) (internal citations and quotation marks omitted); R. 5:3-5(c).

Lastly, the mother did not submit an expert report substantiating her claim that she could not earn the income imputed to her in 2007. In her motion for reconsideration, for the first time she named companies where she had applied for work and been denied employment. She also did not submit an updated Case Information Statement with a current tax return as required by Rule 5:5-2(a) and (d). Although the mother has not been working as a C.P.A. for years, "she retains the obligation to contribute her support." Gnall v. Gnall, 432 N.J. Super. 129, 159 (App. Div. 2013). The calculation of imputed income includes each party's actual income, but "also his or her earning ability." Ibid. She thus did not carry her burden of demonstrating a prima facie case of changed circumstances from the 2007 imputation of income. Crews v. Crews, 164 N.J. 11, 28 (2000). Without this evidence of the incorrect imputation of income, a plenary hearing was not required. Ibid.

1 August 24, 2011, the date defendant's motion was originally filed.

2 The notice of motion was dated December 9, but not delivered by Fedex until December 12. The mother's argument that the pertinent date is the date of mailing is not accurate. See Majestic Const. Co. v. Deptford Tp., 14 N.J. Tax. 332, 335 (Tx Ct. 1994) (explaining that R. 1:3-3 does not extend the twenty day period for a tax counterclaim, but only provides three additional days for counterclaimant to respond if notice was sent by regular mail).