MARK A. HEREGA, SR v. NEYDA L. FIGUEROA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0538-07T10538-07T1

MARK A. HEREGA, SR.,

Plaintiff-Respondent,

v.

NEYDA L. FIGUEROA,

Defendant-Appellant.

_______________________________

 

Submitted: August 20, 2008 - Decided:

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1451-05E.

Maria M. Plinio, attorney for appellant.

Timothy J. Little, attorney for respondent.

PER CURIAM

Defendant Neyda L. Figueroa appeals from a final order en tered on August 17, 2007, denying her motion for reconsidera tion of certain paragraphs contained in an order entered on May 29, 2007. We reverse and remand for further proceedings.

Defendant and plaintiff Mark A. Herrega, Sr., were married on December 5, 1996, and two children were born of the marriage, M.H., on July 24, 1997, and E.H. on August 29, 2000. They were divorced by judgment entered on May 12, 2005. The judgment of divorce incorporated a November 1, 2004, Property Settlement Agreement (PSA) that resolved all issues between the parties. Sometime thereafter, defendant filed a post-judgment motion and on May 4, 2007, plaintiff cross-moved seeking multi ple forms of relief. The motions were argued on May 29, 2007, and a final order deciding each issue was entered that day.

On June 18, 2007, defendant prepared a notice of motion returnable on July 20, 2007, for reconsideration of six para graphs in the earlier order, only two of which are at issue here-- 11 and 13. Those two paragraphs provide:

11. The Defendant's request to amend Paragraph 7 of the [PSA] and require the Plaintiff to pay for 100% of the cost of the nanny is denied. The Defendant shall be responsible for 50% of a $250.00 weekly rate, or $125.00. The parties shall adjust the account.

13. Pursuant to Paragraph 7 of the Prop erty Settlement Agreement, the Defendant shall pay the Plaintiff for 50% of the ongo ing nanny expenses incurred by the Plaintiff from April 17, 2006 at the $125.00 rate, within thirty (30) days.

Plaintiff thereafter filed a cross-motion and both motions were heard on August 17, 2007, at which time the final order under appeal was entered.

Defendant filed her notice of appeal on October 1, 2007, lim iting her notice of appeal to the order of August 17, 2007, denying reconsideration. Defendant contends on appeal that the Family Part judge erred in (1) failing to modify custody or, at a minimum, hold a plenary hearing on the issue; (2) failing to retroactively modify the defendant's obligation to contribute to the expense of the nanny; and (3) awarding counsel fees to plaintiff on the motion for reconsideration.

Defendant did not seek reconsideration of the paragraph in the May 29, 2007, order that denied a change of custody. Nei ther did she appeal the May 29, 2007, order in her notice of appeal. Furthermore, in her Case Information Statement she described the judgment or decision being appealed as one dated November 1, 2002. As to the proposed issues to be raised on appeal, defendant identified five proposed issues relating to the denial of child support to be paid to defendant, the requirement that defendant contribute to the cost of the nanny, the award of counsel fees to plaintiff, the modification of the parenting schedule without a best-interest evaluation, and the denial of an order to compel equitable distribution. No mention is made of the May 29, 2007, denial of a change in custody.

"[I]t is clear that it is only the judgment or orders desig nated in the notice of appeal which are subject to the appeal process and review . . . ." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66, (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). We also addressed this issue in Fusco v. Board of Education of Newark, 349 N.J. Super. 455 (App. Div.), certif. denied, 174 N.J. 544 (2002).

There, as here, the appellant filed a notice of appeal from an order denying reconsideration, but did not specifically appeal the underlying order sought to be reconsidered. Id. at 462-62. The limited basis for reconsideration of the summary-judgment order dismissing Fusco's handicap- and age-discrimina tion claims was newly discovered information in the form of a Notice of Determination by the New Jersey Department of Labor, Unemployment and Disability Insurance Services; namely, that Fusco quit his job for good cause attributable to the work. Id. at 458-59. We observed,

We are mindful of the fact that in some cases a motion for reconsideration may implicate the substantive issues in the case and the basis for the motion judge's ruling on the summary judgment and reconsideration motions may be the same. In such cases, an appeal solely from the grant of summary judgment or from the denial of reconsidera tion may be sufficient for an appellate review of the merits of the case, particu larly where those issues are raised in the CIS.1 However, that is not what occurred here. In his notice of motion, as well as his notice of appeal and CIS, Fusco's coun sel made his position crystal clear. Fusco's motion for reconsideration was lim ited to the single issue of whether the Unemployment Determination provided a valid basis as "newly discovered evidence" for Judge Caruso to reconsider his ruling as to defendant's summary judgment motion. That was the sole issue ruled on by the motion judge, and the sole issue raised on appeal.

____________________________________________

1 An appellant, however, proceeds at his or her peril by insufficiently completing the notice of appeal or CIS. The appellant should explicitly designate all judgments, orders and issues on appeal in order to assure preservation of their rights on appeal. R. 2:5-1(f).

[Fusco, supra, 349 N.J. Super. at 461.]

We concluded that the motion for summary judgment was not before us and limited our review to the ruling on the motion for reconsideration. Id. at 462.

Similarly, in Campagna ex rel. Greco v. American Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001), we observed that "[o]n appeal, plaintiffs did not indicate in either their notice of appeal or in their amended notice of appeal that they were appealing from the order of March 4, 1999, that denied their cross-motion." Accordingly, we concluded that "[t]his issue is not properly before us for review." Ibid.

Here, it is clear that defendant did not preserve her right to appeal the May 29, 2007, denial of her request for a change in custody. As a result, "defendant has no right to our consid eration of this issue." 1266 Apartment Corp., supra, 368 N.J. Super. at 459.

With respect to the cost of the nanny, defendant averred in her initial motion for post-judgment relief that plaintiff and the nanny had entered into an amorous relationship and that the children were confused about the nanny's role. She stated that at the time of the PSA, when she agreed to pay half of the nanny expenses, the children were not attending school full time, and she recognized plaintiff's need for help. She alleged that beginning in April 2005 the nanny stopped following her direc tions. Defendant also asserted that in May 2005 when she arrived at a small graduation ceremony at E.H.'s school that was to be limited to parents, plaintiff was already there with the nanny, whose hand was on his thigh.

Although she stated that plaintiff sought to allay her con cerns about the nanny, that summer she found M.H. alone in the backyard making a fire in a tree trunk, with the nanny no where to be found. She alleged that plaintiff would not respond to her concerns. On another occasion that summer when she was returning the children to plaintiff, she saw him and the nanny pulling up with a boat in tow.

Defendant certified that at the end of this summer, she sug gested to plaintiff that there was no longer a need for a nanny because both children would be in school in September and they could send the children to the school-sponsored after-care program so that they could play with friends and get their home work done, thus saving the expense of the nanny. Defendant related that plaintiff refused to consider this arrangement because the nanny did much more than just watch the children and that he needed her assistance. Defendant responded that she did not have the money to continue to pay the nanny.

Also, defendant certified that in the fall of 2005 when she and the children were inspecting the marital home before the closing, one of the children told her that the nanny and plain tiff slept in the master bedroom. Although she confronted plaintiff about this, he denied that he had any type of rela tionship with the nanny. Defendant contended that she should not have to pay for the services of a nanny if she and plaintiff had become "partners" and asked to be relieved of that obligation.

In his opposing certification, plaintiff certified that he was not involved in a romantic or physical relationship with the nanny. He described her as a "tremendous asset to our family and the children have grown very fond of her caring and loving nature." He stated that, although he valued her services, "at the end of the day we have a strict employee/employer relationship."

With respect to the alleged fire in a tree trunk, plaintiff certified that he had spoke with his son and the nanny and nei ther had any recollection of the incident. He explained that the nanny was "always diligent in supervising the children" and that neither of them had ever been injured under his or the nanny's care. As to E.H.'s graduation, plaintiff averred that the ceremony was not limited to parents and E.H. asked the nanny to attend. He challenged defendant to produce proof from the school that the ceremony was limited to parents.

Finally, as to the expense of the nanny, plaintiff stated that the PSA required defendant to pay $125 per week beginning on April 25, 2005, but she "refused to pay any of the nanny expenses" and he did not recoup the expenses until he was authorized to withhold $7150 from equitable distribution on April 26, 2006. He certified that since that date she had not paid anything toward the nanny expense and was $6737.50 in arrears as of May 1, 2007. Finally, he asserted that the nanny's "kindness, reliability and caring nature have been a critical factor in maintaining stability in our children's lives." He asserted that defendant's request was not in the best interests of the children, but rather was a selfish request that put her own needs ahead of the children. Plaintiff requested denial of defendant's motion to modify the PSA to eliminate her contribution to the expense of the nanny.

At oral argument on May 29, 2007, defendant requested a ple nary hearing to resolve the disputes in the certifications and argued that there was no need for a full-time live-in nanny. The court pointed out to defendant's counsel that the expense of the nanny was less than the cost of summer camp, which would be needed when the school term ended. As to the need for a full time nanny, plaintiff argued that the children were still at an age, nine and six years old at the time, where a nanny is still appropriate, conceding that a nanny would not be appropriate for a fourteen-year-old child. He argued that "during the times when the kids or off from school, during the summers, when they're sick, it makes it much easier for both parents to con tinue in their work[] [a]nd the cost isn't terrible." He argued that there was no substantial change in circumstances from the time the PSA was negotiated and executed. Defendant then acknowledged that "maybe during the summer recess it's better to have her there" but argued that only plaintiff received the benefit of the nanny's services while the children were at school and she should not have to pay for those services.

The judge denied "defendant's request to require plaintiff to stop using the services of the nanny . . . as it was agreed upon in the property settlement agreement." He determined that defendant would continue to be responsible for one-half of the $250 weekly nanny expenses although he cautioned that "it could get to the point where the nanny is just prohibitive and an after[-]school program may be the way they have to go, although I do think the defendant's getting a real benefit by having this nanny at this home in the summertime."

In support of defendant's reconsideration motion, she averred as new evidence that she had learned that the nanny was employed at a gas station working at the delicatessen counter during the day while the children were at school and requested proof of the amounts plaintiff was paying the nanny. She also asserted that she was taking a sabbatical from work over the summer and asked that the children be allowed to live with her in July and August. She again expressed that she did not believe that the children needed to have a nanny on a full-time basis when school was in session and complained that plaintiff had the benefit of a housekeeper from which neither she nor the children benefitted.

Plaintiff opposed reconsideration of the nanny-expense issue, certifying that the nanny had worked at the gas station before they employed her and continued to do so on weekends and holidays while she worked for them as well as engaging in other work and activities when she was not on duty. Thus, he asserted that this was not new evidence. He reiterated the important role that the nanny filled in their lives of their children and again denied any romantic or physical relationship with her. He questioned the sincerity of defendant's claimed sabbatical when she complained in her initial certification that she was in dire financial circumstances and pointed out that defendant was liv ing in a two-bedroom apartment with her boyfriend and his two children and operated her masseuse business from the same loca tion. Plaintiff sought denial of the motion for reconsideration and an award of counsel fees.

In her reply certification, defendant asserted that she had gone to the children's school and learned that an aftercare pro gram would cost $14 per day for both children. The rules and regulations of the program provide that it is not in session on scheduled half-days or emergency early dismissal days and, pre sumably, not open on school holidays. She argued that "there is no longer any reason to have the services of the nanny as there was at the time of the [PSA]." She also complained that plain tiff had not produced any proof that he actually paid the nanny and averred that she had in fact taken a sabbatical from her employment for the months of July and August.

The motion for reconsideration was heard on August 17, 2007. By then, the issue of the sabbatical was largely moot. Defendant argued that she had real issues with the nanny because she was also taking care of her nephew while she was caring for the parties' two children, was working weekends at the gas sta tion and may or may not have a relationship with plaintiff. Defendant argued that she did not get any benefit from the nanny and that the children did not need her because defendant could get the children from aftercare on Mondays and Wednesdays and plaintiff could do so on Tuesdays and Thursdays. As a result, the nanny was just a windfall to plaintiff, who had not submit ted any proof of actual payment to the nanny. Defendant argued that there was originally a need for a nanny while E.H. was in school for less than a full school day, but that was no longer true and thus circumstances had changed since the time of the divorce.

Plaintiff responded that defendant had always refused to pay for the nanny from the time the divorce was final, her arrears at the time of the argument had grown to $8500, and she had failed to comply with the May 29, 2007, order requiring her to pay the full amount of the arrears at that time within thirty days. Plaintiff pointed out that he does not get child support, so defendant's only obligation is one-half of the nanny expense. Plaintiff argued that defendant had not submitted anything dif ferent from her original papers except for the claim about the nanny working at the gas station, where she had worked when they first hired her and continuously thereafter. Rather, she was merely impugning his and the nanny's character, who happened to be a married woman. When the judge questioned the reduced cost of aftercare, plaintiff argued that the parties had agreed that they both worked and had careers, which had not changed, and that he sometimes had to leave early in the morning and the nanny was always there to get the children to school, take care of them when they were sick, and supervise them on school holi days and during the summer, permitting both parties to pursue their careers.

The judge in ruling on the nanny-expense issue concluded that defendant had failed to present any matters or controlling decisions that he had overlooked and had not demonstrated that he had erred when he initially decided the matter. As a result, the judge denied defendant's motion to reconsider the order requiring her to continue to contribute fifty percent of the expense of the nanny.

Defendant contends on appeal that the judge failed to con sider any change in circumstances, evaluate the use of less-expensive aftercare, explore the romantic relationship between the nanny and the plaintiff, consider the relation of the sale of the marital home to the parenting arrangement, and conduct a plenary hearing. She further argues that the judge should have applied a retroactive modification to the nanny expense.

"The scope of appellate review of a trial court's fact-find ing function is limited. The general rule is that findings by the trial court are binding on appeal when supported by ade quate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-] finding." Id. at 413. However, "[a] trial court's interpreta tion of the law and the legal consequences that flow from estab lished facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We begin with the motion for reconsideration, over which we clearly have appellate jurisdiction. See R. 2:5-1(f); see also Fusco, supra, 349 N.J. Super. at 461-62. Such a motion is governed by Rule 4:49-2, which requires that the motion "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 as to which it has erred." Such a motion is committed to "the sound discre tion of the [c]ourt, to be exercised in the interest of jus tice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263-64 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).

[T]he court's exercise of discretion is not subject to wanton invocation or unfettered judicial response. It is only for good cause shown and in the service of the ulti mate goal of substantial justice that the court's discretion should be exercised. Although this standard is necessarily expressed in general terms, it nevertheless is, in our view, endowed with an unmistak able substantive content by the common understanding which underlies our jurispru dence of what is fair, right and just in the circumstances.

[Johnson, supra, 220 N.J. Super. at 263-64.]

However, "R[ule] 4:49-2 is not the vehicle for raising a new issue" on appeal. Naik v. Naik, 399 N.J. Super. 390, 395 (App. Div. 2008).

Where the parties have not had an opportunity to be heard, a motion to alter or amend a judgment is appropriate. Calcaterra v. Calcaterra, 206 N.J. Super. 398, 403-04 (App. Div. 1986). However, the rule

should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appre ciate the significance of probative, competent evidence . . . .

Alternatively, if a litigant wishes to bring new or additional information to the [c]ourt's atten tion which it could not have pro vided on the first application, the [c]ourt should, in the inter est of justice (and in the exer cise of sound discretion), con sider the evidence. Nevertheless, motion prac tice must come to an end at some point, and if repeti tive bites at the apple are allowed, the core will swiftly sour. Thus, the [c]ourt must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration.

[Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. Super. at 401-02).]

We have considered the issues presented on defendant's motion for reconsideration and are satisfied that she did not present any "new or additional information . . . which [she] could not have pro vided on the first application." D'Atria, supra, 242 N.J. Super. at 401. Furthermore, defendant has not demonstrated that the judge "expressed [his] decision based upon a palpably incorrect or irrational basis."

The only legal error asserted is the alleged failure to con duct a plenary hearing. Material disputes of fact may not be resolved based on affidavits; a plenary hearing is required. Conforti v. Guliades, 245 N.J. Super. 561, 565 (App. Div. 1991) ("[A] holding which authorizes a trial court to decide contested issues of material fact on the basis of conflicting affidavits, without considering the demeanor of witnesses, is contrary to fundamental principles of our legal practice."), aff'd, 128 N.J. 318 (1992). However, even though there were factual disputes, defendant had no right to a plenary hearing unless she made out a prima facie case of changed circumstances. Miller v. Miller, 160 N.J. 408, 419-20 (1999).

Alimony and support "are always subject to review and modifi cation on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citing Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)). "[T]he terms of [consensual] agreements should receive continued enforcement without modification only so long as they remain fair and equitable. The equitable author ity of a court to modify support obligations in response to changed circumstances, regardless of their source, cannot be restricted." Lepis, supra, 83 N.J. at 148-49 (citations omit ted). "Changed circumstances such as child maturation, increases in need, employment, or child emancipation may result in a modification of support." Miller, supra, 160 N.J. at 420 (citing Lepis, supra, 83 N.J. at 152).

Here, defendant contended in her initial motion and her reconsideration motion that plaintiff and the nanny had an amo rous relationship based on the statements of her children that plaintiff and the nanny shared the master bedroom. She also asserted that the children were four and seven when the PSA was executed and that E.H. was only in school for half days. With the maturation of the children and the full-time attendance at school, she contended that the services of a nanny were no longer necessary.

The judge initially denied "defendant's request to require plaintiff to stop using the services of the nanny . . . as it was agreed upon in the property settlement agreement." He did not determine whether defendant had made out a prima facie case of changed circumstances that would trigger a right to a plenary hearing, as he was required to do. We are satisfied that defen dant met her initial burden of proof and that a plenary hearing was required. Cf. Conforti, supra, 245 N.J. Super. at 565. An amorous relationship between plaintiff and the live-in nanny was certainly a change of circumstances that might reasonably support an inference that she would continue to care for the children without compensation because her role was more akin to that of a step-mother than an employee. Furthermore, the fact that E.H. was in school on a full-time basis was a change in circumstances since the time the PSA was executed that might support a conclusion that only aftercare was required to meet the children's needs for supervision while their parents worked. Plaintiff clearly disputed the amorous relationship and disputed the propriety of aftercare. Those disputes must be resolved in a plenary hearing where the parties can fully explore the issues and the judge can evaluate the credibility of the witnesses, including the nanny if she is called to testify. We conclude that the judge erred as a matter of law in failing to conduct a plenary hearing before deciding defendant's initial motion respecting the expense of the nanny. Cf. Tretola v. Tretola, 389 N.J. Super. 15, 21 (App. Div. 2006) (trial judge "erred in failing to schedule a plenary hearing to determine the intent of the parties in entering into [a] PSA"). He also erred in failing to reconsider his initial ruling when defendant asserted that a plenary hearing was required. Accordingly, we remand the matter for a hearing on the issue of the need for a nanny and her rela tionship with plaintiff.

Defendant also appeals the award of counsel fees to plain tiff in connection with his opposition to the motion for recon sideration. An award of fees in a Family Part matter is governed by Rule 5:3-5(c). See Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008) ("Rule 4:42-9(a)(1) authorizes the award of counsel fees in a family action on a final determination pursuant to R[ule] 5:3-5(c)."). Rule 5:3-5(c) provides:

Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discre tion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce, nul lity, support, alimony, custody, parenting time, equitable distribution, separate main tenance, [and] enforcement of interspousal agree ments relating to family type matters . . . . In determining the amount of the fee award, the court should consider, in addi tion to the information required to be sub mitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reason ableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained: (8) the degree to which fees were incurred to enforce existing orders or to compel discov ery; and (9) any other factor bearing on the fairness of an award.

In allowing plaintiff's counsel the sum of $1942.50, the judge stated that he had "considered the financial circumstances of the parties, the ability of the parties to pay their own fees or to contribute to the fees of the other party, the reasonable ness and good faith incurred by both parties, and the results obtained." He also found that defendant's application was not a valid motion for reconsideration in that she made the same argu ments in August that were presented in May, "and that's one of the main reasons that I've decided to award the counsel fees."

"We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). A judge has a duty to make findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right." R. 1:7-4(a); see also Caplan v. Caplan, 364 N.J. Super. 68, 91 (App. Div. 2003) (Rule 1:7-4(a) "requir[es] the trial court to make findings of fact and conclusions of law on each issue."), aff'd, 182 N.J. 250 (2005). "Failure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quotations omitted). Moreover, "[n]aked conclusions do not satisfy the purpose of R. 1:7-4." Id. at 570. Here, the judges statements respecting the factors he considered were no more than naked conclusions, a mere par roting of Rule 5:3-5(c), and did not satisfy the judge's duty to make findings of fact, rendering the award of fees to plaintiff an abuse of discretion. See Accardi v. Accardi, 369 N.J. Super. 75, 90 (App. Div. 2004).

Furthermore, the finding as to the merit of defendant's Rule 4:49-2 motion alone will not sustain the award as that was only one of several factors to be considered. Mani v. Mani, 183 N.J. 70, 94-95 (2005); Williams v. Williams, 59 N.J. 229, 233 (1971) (stating when awarding counsel fees, "courts focus on sev eral factors, including wife's need, husband's financial ability to pay and wife's good faith in instituting or defending the action"). In any event, we have determined that the motion for reconsideration, at least in part, was meritorious and thus the award of fees must be reversed.

 
Reversed and remanded for further proceedings consistent with our opinion. We do not retain jurisdiction.

Defendant's notice of motion is not contained in the record on appeal.

Plaintiff's notice of cross-motion is not contained in the record on appeal.

The only case law defendant cites with respect to nanny expenses are two unreported decisions, neither of which we may cite. See R. 1:36-3 (providing "no unpublished opinion shall be cited by any court").

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November 7, 2008