NOT FOR PUBLICATION WITHOUT THE
WESTWOOD LANES, INC. v. GARWOOD BOROUGH
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-6195-04T56195-04T5
Argued May 9, 2007 - Decided
Before Judges Stern, Sabatino and Lyons.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Essex County, Docket No. FM-7-2570-97.
S.M. Chris Franzblau argued the cause for
appellant (Franzblau Dratch, attorneys;
Patrick T. Collins, on the brief).
Rose Timins, respondent, argued the cause
Defendant, former husband, appeals from orders of July 7, 2005, August 19, 2005 and September 15, 2005. The August 19, 2005 order of Judge Nancy Sivilli held him in contempt for failure to comply with her July 7, 2005 order to bring outstanding alimony and mortgage arrearages to date by August 29, 2005, to pay $100 per day for continuing violations, and indicated that defendant would in be incarcerated for non-compliance. The September 15, 2005 order by Judge Claude Coleman denied defendant's order to show cause, held him in contempt for failure to comply with the August 19 order, required him to pay $6,000 a month in alimony and $4,000 a month in alimony and mortgage arrearages and to comply with the July 7 order, and again stated that "failure to comply" would result in incarceration.
On this appeal defendant argues (1) "the lower court erred in failing to base its determination upon defendant's present ability to earn," (2) "the trial court erred in failing to provide for the imputation of income to plaintiff predicated upon her retention of an asset with a value in excess of $1 million," (3) "the lower court must require plaintiff to provide a current case information statement in connection with its assessment of her needs for alimony purposes," and (4) "incarceration for failure to comply with a judicial order may only be had upon a determination that such compliance is willful." By cross-appeal the former wife contends the original alimony order (of $8,000 a month) should be reinstated.
Plaintiff seeks to enforce the property settlement agreement, and defendant seeks a reduction of his alimony obligation because of his loss of income after his law firm lost clients and his firm was ultimately dissolved.
At the argument before us, we learned that while this appeal was pending, defendant filed for bankruptcy. We also learned that, as a result of subsequent proceedings in the Family Part, the trial court appointed an accounting expert to determine defendant's "net income," reduced defendant's monthly alimony obligation to $2,956 per month "retroactive" to November 1, 2005 and "fixed" his "alimony arrearages . . . at 0." We were further advised that the warrants for incarceration were withdrawn or that the issue concerning incarceration has become moot.
We have now received a copy of an order of July 24, 2006, entered by Judge Coleman, establishing the monthly alimony obligation of $2,956 as of November 1, 2005 and eliminating defendant's obligation to pay "alimony arrearages" as of that date. We have also received a copy of a subsequent undated order, based on a decision of September 25, 2006 and filed that day, denying a further reduction of alimony. Neither of those orders was the subject of an appeal.
It is unclear to us what impact the July 24, 2006 order has on the issues before us other than the fact the orders under review would have no effect after November 1, 2005 with respect to alimony. It is also unclear what the effective date of the arrearage reduction was intended to be, and if it applies to the mortgage. While defendant suggested that Judge Coleman did not address retroactivity beyond November 1, 2005 in light of the date of the application, there is nothing in the record before us to explain the use of that date or the impact of the expert's report on that question.
Accordingly, we remand to the Family Part for further and expeditious reconsideration of the orders of July 7, August 15 and September 15, 2005. At the remand hearing defendant can request a reduction of his alimony obligation for the period before November 1, 2005, and plaintiff can request enforcement of her entitlement to all arrearages preceding that date. Our disposition of the appeal should not be understood as suggesting any view of the merits. However, we urge that Judge Coleman conduct the remand proceedings in light of his recent familiarity with the matter. If either party is dissatisfied with the resulting order on remand, he or she - or both - can appeal and seek accelerated consideration.
The matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
We presume they were enforcement proceedings over which the Family Part had continuing jurisdiction, see R. 2:9-1; Rolnick v. Rolnick, 262 N.J. Super. 343, 366 (App. Div. 1993). The parties should have advised us of the outcome of the proceedings because the proceedings mooted much of what was presented on appeal.
Plaintiff candidly admitted that it appeared she could not now ask for reinstatement of the $8,000 alimony obligation.
May 24, 2007