SANDRA KINNEAR v. DREW KINNEAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0304-06T10304-06T1

SANDRA KINNEAR,

Plaintiff-Appellant,

v.

DREW KINNEAR,

Defendant-Respondent.

________________________________________________

 

Submitted March 28, 2007 - Decided April 9, 2007

Before Judges C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2310-99D.

Jack Venturi & Associates, attorneys for appellant (Jef Henninger, on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant appeals the trial judge's unexplained denial of his motion for reconsideration of an order that set his child support arrearages. Defendant argued in his motion for reconsideration that he did not receive a copy of the child support arrearage motion until six days before the return date and, thus, did not have an adequate opportunity to retain counsel and file opposition. We agree with defendant that he was entitled to relief and remand for further proceedings.

The parties were married in 1991 and had two children. Defendant was incarcerated when the January 5, 2001 judgment of divorce was entered. The judgment directed that defendant's child support obligation was to be "held in abeyance until [d]efendant's release from prison," and, upon his release, plaintiff was to move "to establish the amounts due for . . . child support payments and the commencement date thereof." The record on appeal does not clearly indicate when defendant was released from prison, but it does reveal that upon release he moved to Little Rock, Arkansas.

On April 25, 2006, plaintiff moved to establish, among other things, defendant's child support arrearages and a method for the payment of those arrearages. Plaintiff's counsel simultaneously mailed a copy to defendant at 7700 Indian Trail, Apt. 4, in Little Rock. This was apparently the wrong address; the record suggests that, on May 8, 2006, plaintiff's counsel mailed another copy of the motion to a post office box in Little Rock.

The trial judge entered an order on May 26, 2006, which granted, among other things, plaintiff's motion for the fixing of defendant's child support arrears at $18,447.57 as of the date of the filing of the motion. Defendant had not filed any opposition to that motion.

On July 11, 2006, defendant moved for reconsideration. He filed a brief, as well as a certification, which stated that he did not receive a copy of plaintiff's motion until May 20, 2006, and that, as a result, he was unable to timely retain counsel or file opposition. Plaintiff filed no opposition to defendant's motion for reconsideration. Despite defendant's unrebutted assertion that he did not receive plaintiff's motion until six days before the return date, and that he did not have adequate time to retain an attorney and file opposition, the trial judge entered an order on July 21, 2006, which denied defendant's motion without setting forth reasons for that determination.

The judge's failure to express her reasons for denying the motion for reconsideration was inconsistent with the requirements imposed by R. 1:7-4(a). As the Court observed in Curtis v. Finneran, 83 N.J. 563, 569-70 (1980), a judge's failure to comply with the obligation to explain the basis for the entry of a judgment or order "constitutes a disservice to the litigants, the attorneys and the appellate court." See also Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006). Normally, we would remand for a recitation of the judge's reasoning, but, because there is merit in defendant's arguments, we will not further burden the litigants by mandating that the judge now comply with R. 1:7-4(a).

Our court rules required that defendant receive at least sixteen days notice of plaintiff's April 25, 2006 motion. See R. 1:6-3(a). The result of plaintiff's mistake in sending a copy of the motion to the wrong address was that defendant received only six days notice of the motion. In light of that undisputed fact, due process and simple fundamental fairness required that the motion for reconsideration be granted and defendant thereafter given a full opportunity to present relevant evidence and materials on the issues raised in plaintiff's prior motion. See Zoning Bd. of Adj., Tp. of Sparta v. Service Elec. Cable T.V. of N.J., Inc., 198 N.J. Super. 370, 379 (App. Div. 1985).

Accordingly, we reverse the order of July 21, 2006 and remand for further proceedings that will permit defendant to address the merits of the May 26, 2006 order. Pending a resolution of those proceedings, the order of May 26, 2006 is stayed. We do not retain jurisdiction.

 

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4

A-0304-06T1

April 9, 2007