NANCY GIORDANO v. JOHN GIORDANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4194-04T14194-04T1

NANCY GIORDANO,

Plaintiff-Respondent,

v.

JOHN GIORDANO,

Defendant-Appellant.

_______________________________

 

Submitted December 12, 2005 - Decided May 12, 2006

Before Judges Alley and C.S. Fisher.

On appeal from the Superior Court, Chancery Division - Family Part, Monmouth County, Docket No. FM-13-9361-88.

John Giordano, appellant, submitted brief pro se.

Nancy Giordano, respondent, submitted brief pro se.

PER CURIAM

On September 23, 2004, defendant John Giordano moved in the Family Part to emancipate his three children: Stephanie Ann Giordano, born February 9, 1982; Jonathan Anthony Giordano, born February 15, 1984; and Joan Mary Giordano, born November 15, 1985. Plaintiff Nancy Giordano filed a cross-motion. On November 12, 2004, Judge Honora O'Brien Kilgallen ordered Stephanie and Jonathan to be emancipated, effective September 23, 2004. Also effective on that date, Judge Kilgallen ordered defendant to continue to pay child support for Joan, in the amount of $147 per week. Lastly, the Judge denied defendant's request to reduce his arrearage payments, and ordered him to continue paying child support arrearages in the amount of $100 per week until satisfied.

On or about January 11, 2005, defendant filed a "notice of motion for modification of child support" with the court. Judge Kilgallen concluded that, "this is essentially a motion for reconsideration." Defendant stated his grounds for reconsideration as:

The order entered . . . was apparently based upon a mistaken calculation of Defendant's income or an incorrect application of the Child Support Guidelines.

The current order requires Defendant to pay a monthly amount in child support and arrears which is very nearly the exact amount of his entire monthly income. (The order requires Defendant to pay a weekly total of $247.00 between current child support and arrearages, and Defendant's total weekly income is $259.50). It is a financial impossibility for Defendant to pay the weekly amount ordered, and the amount should be recalculated using Defendant's total monthly income of $1,038.00 . . . .

On February 18, 2005, Judge Kilgallen denied defendant's motion for reconsideration. In her brief oral opinion, she stated:

He basically indicates that, I apparently mistook his income or a calculation of his income because what I had ordered him to do in my order of November the 12th, 2004 was to emancipate the children, but order that he continue to pay child support for the one remaining unemancipated child, Joan Mary Giordano, in the amount $147 per week. And I denied his request to reduce the amount he pays towards arrears, which is an additional $100 per week.

And what I had done at that time was, I took the amount that he was paying for three, looked at the child support guidelines and with that same number picked out the amount that it would be for one child, and that's how it came to $147 per week.

And with regard to the arrears, I mean, this is a man, who according to his ex-wife's certification, has ignored orders for years. And his arrears, according to her, are in excess of $243,000, and that he has served a five year probation term for willful nonsupport of his children. And again, there is absolutely no reason why at this time, when I considered all these things from the inception on November the 12th, 2004 that I should modify it at this time.

So therefore, I'm going to order that the defendant John Giordano's motion be and is hereby denied, and that it is essentially a motion for reconsideration of this Court's order filed on November 12, 2004, which is not only untimely, but without merit.

On April 6, 2005, defendant filed a Notice of Appeal from the denial of his motion for reconsideration. We affirm.

On appeal, defendant contends that the trial court must use the child support guidelines in calculating child support, and the incomes and financial situations of both parents must be considered in such calculations.

At the outset, we note that the defendant has a history of non-compliance with support orders. It is against this background that we review the judge's decision under appeal. This is a brief outline of the history.

The parties were divorced in September 1988. Pendente lite, defendant was ordered to pay $700 per week in child support. Sometime in September 1987, defendant moved to Florida and refused all mail from plaintiff and child support enforcement authorities. Plaintiff contends that defendant refused to pay child support from 1987 to the present, and ignored court orders instructing him to pay.

In 1992, plaintiff filed a motion to reduce child support, which was granted. The support was reduced from $700 per week to $251 per week, plus an additional $30 per week was owed for medical coverage.

In February 1995, a jury convicted defendant of willful failure to pay child support. He was sentenced to 364 days in the county jail and ordered to pay more than $100,000 in child support. Defendant served four months and returned to Florida in July 1995. He paid child support from August through November of 1995.

Plaintiff submits that defendant then "disappeared" again for the next five years. She alleges that defendant "earned $50,000 per year income as a crane operator by using three peoples' social security numbers to avoid paying child support. During this five year period accumulation of $250,000 in income of which he sent zero child support for the welfare of his own children."

During this time, plaintiff was diagnosed with cancer and began chemotherapy and radiation treatment. She relied upon food stamps and loans from her family to support the three children.

On October 13, 2000, Project Save Our Children, a federal program, captured defendant. He was extradited to New Jersey and the federal government filed charges against him. Defendant then served eighteen months in Monmouth County Correctional Institution. Defendant paid $7,500 in arrears and was placed on probation for five years.

Furthermore, defendant was ordered to pay child support and arrearages. Specifically, the order signed by Judge E. Benn Micheletti in the Family Part, effective June 18, 2002, ordered defendant to pay $251 in child support per week and $100 towards the $242,208.88 in arrearages.

Defendant underwent back surgery in March 2004. Beginning on April 1, 2004, defendant began to receive $1,038 a month in nonservice-connected pension from the Department of Veterans Affairs. The Department explained he is unable to secure gainful employment because he is a disabled, sixty-one-year-old person with a ninth grade education who last worked in 2002 as an exporter. "The evidence shows the veteran to be disabled due to his disabilities[:] chronic bronchitis which requires out patient oxygen therapy, coronary artery disease and degenerative disc disease with sciatica." Defendant does not work.

Plaintiff receives $1,055 per month in social security income. She contends that appellant sporadically pays child support in amounts such as $25 to $50 a month, although he is ordered to pay $251 per week and $100 per week in arrearages. Plaintiff did receive $100 from defendant one month.

We now turn our focus to the merits of the issues on appeal. Defendant contends that he is completely disabled, unable to work, and his only income is the $1,038 per month pension he receives. He has received this amount of pension from the Department of Veterans Affairs since April 1, 2004. Furthermore, he contends that plaintiff did not submit any financial statements to the trial court. Thus, defendant claims that the trial court mistakenly used $620 as the parties' combined net income to declare that he owed $147 in support for one child, according to the child support guidelines. In essence, defendant submits that since, to his knowledge, plaintiff submitted no financial information, the $147 award in support of one child makes him solely responsible for his daughter's support based on a combined net weekly income of $620.

Additionally, defendant contends that his motion was not "without merit," as Judge Kilgallen stated. He submits that the judge "ignored all of the documentation provided" in regard to his finances.

Plaintiff, on the other hand, submits that the Department of Veterans Affairs informed her that defendant receives additional income, but could not release the specific information to her. She contends that she "provided all the information to the courts as is the procedure." Plaintiff states that starting on January 3, 2005, she receives $1,055 a month in income from social security, which is supported in the record. There is no indication that plaintiff has any other income.

A motion for reconsideration is governed by R. 4:49-2. This rule states:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or to which it has erred.

[R. 4:49-2.]

A trial court's determination of a motion for reconsideration, R. 4:49-2, is left to the judge's discretion. See Triffin v. Johnston, 359 N.J. Super. 543, 550 (App. Div. 2003). A trial judge is reversed on appeal only if an "abuse" of that discretion is shown.

A motion for reconsideration must be brought within twenty days of a final judgment, and the grounds contemplate only a judicial error in or omission of controlling law. R. 4:49-2. Notably, R. 1:3-4 expressly prohibits the enlargement of the twenty day period to bring a motion for reconsideration: "Neither the parties nor the court may, however, enlarge the time specified by . . . R. 4:49-2 . . . ." R. 1:3-4c.

In Baumann v. Marinaro, 95 N.J. 380, 391 (1984), the court emphasized the stringent time period to bring a motion for reconsideration after an entry of judgment. The Court reiterated that a motion under R. 4:49-2 is "distinguishable from motions for a new trial in that the time in which the motion must be made is 'not later than [20] days after entry of judgment.'" Baumann, 95 N.J. at 391.

Also, in Eastampton Ctr., LLC v. Planning Bd., 354 N.J. Super. 171, 187 (App. Div. 2002), this court discussed the necessary timeliness of a motion for reconsideration within the twenty day time period. In that case, the plaintiff filed a timely motion for reconsideration but the court permitted the plaintiff to perfect the non-conforming motion since it was timely filed. Ibid.

Here, the trial court ordered the child support modifications on November 12, 2004. According to R. 4:49-2, the time period to file a motion for reconsideration of this order expired twenty days thereafter on December 2, 2004, assuming that the order was immediately served upon the parties. Plaintiff's motion for reconsideration, filed on January 11, 2005, was clearly untimely because it was over one month late. Again, R. 1:3-4 restricts the ability of the court or the parties to relax or enlarge the time specified in R. 4:49-2.

Judge Kilgallen did not abuse her discretion in viewing defendant's motion as a motion for reconsideration. She correctly determined that defendant's motion was untimely and that she was not empowered to extend the time period to file such a motion. As a result, although we see no substance in the merits of defendant's arguments, we conclude, as did Judge Kilgallen, that the motion was untimely and that it was appropriately denied for that reason.

Affirmed.

 

Defendant was the first Monmouth County defendant ever convicted by a jury for willful failure to pay child support.

In September 1998, the Rule was amended "to increase the non-enlargeable time period from 10 to 20 days." Pressler, Current N.J. Court Rules, comment on R. 4:49-2 (2006).

See R. 1:3-1. Also, there is no indication in the record that the order was not served upon the parties or served over a month late. Judge Kilgallen stated on the record that the motion was untimely and there is no indication that this was an abuse of discretion.

(continued)

(continued)

10

A-4194-04T1

May 12, 2006