CHARLES F. SPICER, JR. v. AZZMEIAH R. VAZQUEZ SPICER(n/k/a VAZQUEZ)

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4318-05T34318-05T3

CHARLES F. SPICER, JR.,

Plaintiff-Appellant,

v.

AZZMEIAH R. VAZQUEZ SPICER

(n/k/a VAZQUEZ),

Defendant-Respondent.

_______________________________________

 

Submitted November 1, 2006 - Decided December 4, 2006

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM 12-14-00 M.

Charles F. Spicer, Jr., appellant pro se.

Azzmeiah R. Vazquez, respondent pro se.

PER CURIAM

Plaintiff Charles F. Spicer, Jr. appeals from an order filed on March 3, 2006, which denied plaintiff's motion to reconsider an order entered on November 30, 2005, denying his motion to enforce litigant's rights. We affirm in part, and reverse in part, and remand for further proceedings.

A final judgment of divorce was filed in this matter on February 19, 1999, dissolving the bonds of matrimony between plaintiff and defendant. One child had been born of the marriage. Under the terms of the final judgment, plaintiff and defendant have joint custody of the child.; however, defendant has primary physical custody of the child. The judgment states that plaintiff may have unsupervised overnight visitation every weekend beginning on Friday at 5:00 p.m. and ending on Sunday at 6:00 p.m. The judgment requires that plaintiff pay defendant child support. In addition, the judgment provides the following respecting daycare expenses:

The plaintiff shall contribute forty-five (45%) per cent and the defendant fifty-five (55%) [per cent] toward daycare expenses for after-school, summer vacation, and holidays. Whenever practicable, the defendant shall first offer the child to the plaintiff for visitation and supervision before incurring a daycare cost. The defendant shall present the plaintiff with a monthly daycare bill. The plaintiff shall issue a check made payable directly to the daycare provider representing his share of the daycare expense.

The provisions of the final judgment pertaining to child support were modified by an order entered on March 8, 2000. The order provides that, effective January 1, 2000, plaintiff must pay $297 per month for child support. The order further provides that, if the child stays with plaintiff for five or more consecutive overnights, "then an abatement in support shall be given." The order states, "The abatement shall consist of 37 percent of the weekly child support amount or $26. [Defendant] shall send to [plaintiff] the sum of $26 for each five days of consecutive overnight parenting time." Subsequently, the amount of child support was increased to $318 per month.

In addition, an order was entered on June 16, 2005, respecting parenting time. The order modified plaintiff's parenting time from every weekend to every other weekend. The order further provides that plaintiff shall have extended parenting time in the months of July and August.

On October 5, 2005, plaintiff filed a motion to enforce litigant's rights. Plaintiff sought an order: requiring defendant to pay him $1,078 for daycare costs that he had incurred in the months of July and August 2005; reimbursement of $660 which he paid for child support in July and August 2005; and payment by defendant of $318 per month "or the amount equal to the current monthly support obligation provided by the plaintiff during the months of July and August."

The judge entered an order on November 30, 2005, denying the relief sought by plaintiff. The order states that, in support of his motion for daycare costs, plaintiff relied upon the provisions of the final judgment allocating the cost of daycare. The judge noted that the judgment requires that defendant first offer the child to plaintiff for visitation before daycare costs are incurred. The judge wrote on the order:

The same is applicable to the Plaintiff where the Plaintiff must enter the child into daycare; therefore, because Plaintiff did not first offer visitation during those two summer months, Defendant cannot be held responsible for a percentage of the summer camp cost incurred by the Plaintiff . . . [.]

In the order, the judge also set forth his reasons for denying plaintiff's application for reimbursement of the $660 he had paid in child support for the months of July and August 2005, when plaintiff had extending parenting time; and the application to compel defendant to pay him an amount equal to his current monthly support obligation for that period. The judge wrote:

The Plaintiff was granted alternate visitation times to accommodate the Defendant's request that the parties' child be able to visit with her sisters every other weekend. This alternate time is not additional time, nor is it a change in the custody arrangement, indeed the number of days each party has their daughter remains the same as when the original support amount was calculated. Therefore, Plaintiff is not entitled to a change in his child support obligation nor a reimbursement for the summer months that the parties' daughter spent with him . . . [.]

Plaintiff filed a motion for reconsideration dated December 21, 2005. In his accompanying certification, plaintiff stated that the assumption that he had not offered visitation to defendant was not correct. Plaintiff asserted that the current visitation schedule had been sought by defendant.

Plaintiff additionally stated that it would not have been feasible to offer his daughter to defendant for visitation during his scheduled parenting time because the parties were living 62 miles from each other and it would be difficult to transport the child to defendant and return her to plaintiff each day. Plaintiff said that this was not in the child's best interests.

Plaintiff also stated that, under the court's order entered on March 8, 2000, which was effective as of January 1, 2000, he is entitled to an abatement of weekly support whenever the child is with him five or more consecutive overnights. Plaintiff sought reimbursement for nine periods in which he claimed to have had the child for five or more consecutive overnights.

The judge entered an order on March 3, 2006, denying plaintiff's motion. The order states that the motion for reconsideration was untimely because it had been filed more than "twenty days" after the receipt of the November 30, 2005, order. The order also states that reconsideration was not warranted because plaintiff had not brought forth any information that the court had overlooked in its initial decision. The order additionally states that any requested relief that was not specifically addressed was denied. This appeal followed.

Plaintiff argues that the judge erred in denying his motion for reconsideration because under the terms of the final judgment of divorce, defendant is required to contribute towards the daycare costs incurred by plaintiff for the child. Plaintiff additionally argues that the judge erred by denying him an abatement in support for the days when the child was with him five or more consecutive overnights, as provided in the court's March 3, 2005, order.

We first consider whether the judge erred in finding that plaintiff's motion for reconsideration had been filed beyond the time required by R. 4:49-2. Here, the judge found that plaintiff's motion for reconsideration was untimely, noting on the order that the motion had been filed more than twenty days after it had been "received." However, under R. 4:49-2, a motion for reconsideration seeking to alter or amend a judgment or order must be filed "not later than 20 days after service of the judgment or order upon all parties by the party obtaining it."

The record does not disclose when the November 30, 2005, order was "served." If we assume that the order was mailed on the date it was filed, the time for filing the motion for reconsideration would be extended three days pursuant to R. 1:3-3. Therefore, plaintiff was required to file his motion on or before December 23, 2005. Plaintiff's motion is dated December 21, 2005. The record before us does not show when the motion actually was filed. The date of the motion suggests that it probably was filed on or before the December 23, 2005, deadline. In any event, the judge elected to consider the motion on the merits, apparently exercising his discretion to relax the rules in the interest of justice. R. 1:1-2. We are satisfied that, if the motion was a day or two late, relaxation of the rules was appropriate in these circumstances. Therefore, we will consider the merits of plaintiff's appeal.

Plaintiff argues that the judge erred by denying his application to compel defendant to pay a share of the daycare costs he had incurred in July and August 2005. As we have pointed out, the final judgment requires that defendant contribute 55% towards daycare expenses for after-school, summer vacation, and holidays. The judge denied the application, finding that plaintiff was required by the final judgment to offer the child to defendant for visitation before incurring these costs.

The final judgment imposed no such requirement. The provision of the judgment pertaining to daycare expenses states in pertinent part, "Whenever practicable, the defendant shall first offer the child to the plaintiff for visitation and supervision before incurring a daycare cost." Thus, by its terms, the order mandates that defendant offer the child to plaintiff for "visitation and supervision." It does not expressly require that plaintiff do so before he incurs daycare expenses.

Even if we assume that the order implicitly requires that plaintiff first offer the child to defendant for "visitation and supervision," the judgment provides that such an offer is only required when "practicable." Here, it was not "practicable" for defendant to take responsibility for the child's "visitation and supervision" during the daytime hours in July and August 2005.

As stated previously, the provisions of the judgment governing visitation were modified by the June 16, 2005, order, which changed plaintiff's parenting time from every weekend to every other weekend, and gave plaintiff extended parenting time over the summer in the months of July and August. According to the record, the parties live about 62 miles from each other, making its impracticable for defendant to assume responsibility for the daytime supervision of the child in the summer months when plaintiff has extended parenting time. In the circumstances, plaintiff could not fairly be expected to offer the child to defendant for "visitation and supervision" before incurring the daycare expenses. We therefore are convinced that the judge erred in denying plaintiff's application to compel defendant to pay 55% of the cost of daycare in July and August 2005.

In his motion to enforce litigant's rights filed on October 5, 2005, plaintiff claimed that he spent $1,960 for daycare expenses. However, the record includes a statement of account which indicates that plaintiff paid $1,565 to the YMCA, Edison Branch, for camp costs in the period from July 8, 2005, to August 19, 2005. Plaintiff asserted in his motion papers that he incurred additional expenses of $45 per week for certain "camp trips." It appears that these additional costs may have been included in the charges totaling $1,565. We remand the matter to the trial judge to determine the amount spent by plaintiff for daycare costs in July and August 2005, and enter an order requiring defendant to pay 55% of those costs.

Plaintiff also contends that the judge erred in denying his request for reimbursement of the child support paid in July and August 2005, as well as his request to compel defendant to pay him child support of $318 per month in the period when he had extended visitation. We are convinced, however, that the judge correctly rejected these claims.

The judge properly found that, although plaintiff had extended visitation in the relevant period, the extended visitation was not "additional time" and "the number of days each party has their daughter remains the same as when the original support amount was calculated." The judge's finding is binding on appeal because it is supported by adequate, substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

However, plaintiff's motion dated December 21, 2005, did not merely seek reconsideration of the judge's order respecting his claim for child support for July and August 2005. The motion also sought an abatement of 37% of his weekly support amount when the child was with him five or more consecutive overnights. As part of this claim, plaintiff included the 60 nights during July and August 2005. He also included the following times when the child was with him five or more consecutive overnights: 2/22/00 to 3/1/00 (seven nights); 12/25/00 to 1/1/01 (seven nights); 12/25/01 to 1/1/02 (seven nights); 7/25/03 to 7/29/03 (five nights); 12/25/02 to 1/1/03 (seven nights); 12/25/03 to 1/1/04 (seven nights); 4/7/04 to 4/15/04 (nine nights); and 12/26/04 to 1/2/05 (seven nights).

The order dated March 6, 2006, states that any relief "not specifically addressed" is denied. The order thus rejected plaintiff's claim for the abatement of child support. Although the judge provided appropriate and sound reasons for his rejection of any claim for an abatement in respect of the 60 days of visitation in July and August 2005, the judge provided no explanation for his rejection of an abatement for the other seven occasions when plaintiff allegedly had the child for five or more consecutive overnights.

We note that the court's order filed on March 8, 2000, requires an abatement when the child is with plaintiff five or more consecutive overnights. Plaintiff has submitted documentation to substantiate his assertion that, in addition to the 60 days of visitation in July and August 2005, the child was with him for five or more consecutive overnights on seven occasions. We note, however, that some of the overnights for which plaintiff sought an abatement took place years before plaintiff sought the abatement. If unexcused and unreasonable, plaintiff's delay in seeking an abatement may warrant denial of the claim in whole or in part. Because the judge may not have considered all of the relevant factors in denying plaintiff's motion for an abatement of support respecting the seven occasions when plaintiff allegedly had the child for five or more consecutive overnights, we reverse that part of the order and remand for reconsideration.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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12

A-4318-05T3

December 4, 2006