CAROL HERNANDEZ v. RONALD HERNANDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1861-07T21861-07T2

CAROL HERNANDEZ,

Plaintiff-Appellant,

v.

RONALD HERNANDEZ,

Defendant-Respondent.

__________________________________________

 

Submitted December 3, 2008 - Decided

Before Judges Stern, Payne and Lyons.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-586-01.

Carol Hernandez, appellant, pro se.

Ronald Hernandez, respondent, pro se.

PER CURIAM

Plaintiff, Carol Hernandez, and defendant, Ronald Hernandez, were divorced by judgment entered on February 20, 2004. During the nearly five years which have since elapsed, there has been a direct appeal of portions of the final judgment of divorce which we affirmed. Hernandez v. Hernandez, No. A-4163-03T2 (App. Div., Jan. 21, 2005). In addition, there have been myriad post-judgment applications by the parties to enforce, modify, or terminate various obligations that have been imposed upon them. There has also been an appeal of three post-judgment orders which we affirmed in an opinion dated July 22, 2008. Hernandez v Hernandez, No. A-6437-04T2 (App. Div., July 22, 2008).

The present appeal is taken by plaintiff from an order entered on November 16, 2007, on plaintiff's motion seeking:

(1) the enforcement of an August 28, 2007, order requiring defendant to pay alimony arrearages;

(2) the elimination of plaintiff's obligation to pay part of their son's college education expenses;

(3) her share of equity from the sale of the marital home;

(4) her share of defendant's pension and annuity; and

(5) an attorney be appointed for her and that defendant pay for that attorney;

And, from defendant's cross-motion seeking:

(1) that plaintiff's motions be denied;

(2) that plaintiff be held in violation of litigant's rights for failure to comply with certain court orders directing plaintiff to pay her share of the parties' son's college expenses;

(3) an order that if plaintiff does not reimburse defendant for said college expenses within ten days, the amount of the expenses be taken out of her share of defendant's annuity;

(4) an order that plaintiff be responsible for obtaining through Pension Appraisers, Inc. the Qualified Domestic Relations Order (QDRO) with respect to defendant's retirement accounts and for plaintiff to pay one-half of the cost;

(5) an order that there be an audit of defendant's alimony probation account; and

(6) counsel fees.

We affirm.

In our opinion of July 22, 2008, we set forth the relevant facts and procedural history of the parties' litigation through October 14, 2005. Hernandez v. Hernandez, No. A-6437-04T2 (App. Div., July 22, 2008). We will not repeat them here. The relevant facts and procedural history which occurred after October 14, 2005, however, follow.

In the fall of 2006, the parties' son, S.H., decided to attend college. This brought about a new round of litigation. Defendant filed a pro se motion requesting a decrease in alimony payments; establishment of child support to be paid to defendant for S.H.; an order requiring plaintiff to "cease and desist in the practice of violating defendant's privacy and others; i.e., relatives and friends;" and an order declaring plaintiff responsible for taxes for moneys received as a result of the divorce settlement. Judge Jessica R. Mayer denied the motion with regard to the alimony, without prejudice, for failure to comply with Rule 5:5-4 and to demonstrate changed circumstances. Defendant's other claims were dismissed, without prejudice, largely for failure to provide the court with sufficient information.

Defendant then obtained counsel, who filed a similar motion. In a notice of motion returnable October 20, 2006, defendant requested that plaintiff file a complete and signed Case Information Statement (CIS) within ten days; plaintiff pay child support on behalf of S.H.; plaintiff reimburse defendant for her share of payments previously made by defendant toward S.H.'s college education; plaintiff's percentage of contribution to S.H.'s education be fixed; defendant's alimony obligation be eliminated or fixed; and plaintiff pay counsel fees and costs.

Judge Michael A. Toto granted some of defendant's requests, requiring plaintiff to produce a CIS, pay $32.70 a week in child support, reimburse defendant for college expenses already expended ($4062.24), and pay fifty-one and one-quarter percent of future expenses. Defendant's request to reduce or eliminate alimony and his request for counsel fees and cost were denied. Plaintiff's cross-motion requesting that she receive half of defendant's pensions and annuities was denied.

Plaintiff then moved pro se to require defendant to pay alimony arrearages, which were to be made through direct deposit. On January 19, 2007, Judge Toto granted the motion. Furthermore, plaintiff's $165 per week alimony payments were also ordered to be paid by defendant through the Probation Department. Both parties were then enjoined from dissipating marital assets. Plaintiff's request to be relieved of paying S.H.'s college expenses was denied and such payments were to be paid from the disbursement of the proceeds of the marital home. Lastly, plaintiff's request for reconsideration of child support provided for in an earlier order was denied.

Plaintiff filed another motion; defendant filed a cross-motion. On February 20, 2007, Judge Toto ordered that plaintiff's request that defendant bring his alimony payments current was granted. Judge Toto denied plaintiff's request that the court appoint an attorney to represent her. Lastly, plaintiff's request to stay the January 19, 2007, order with regard to her child support obligation was denied because neither party submitted change in circumstances documentation to support such a change.

Plaintiff then filed a notice of motion returnable on April 13, 2007. On that date, Judge Toto ordered that plaintiff's request that defendant pay alimony arrears was granted, if owed. Defendant was ordered to give the probation department his last three pay stubs and correct address information. Plaintiff's request to sanction defendant was also denied.

On May 4, 2007, after considering the papers submitted by the parties, Judge Toto ordered that defendant pay support arrears of $825. Plaintiff was ordered to continue paying child support to defendant on behalf of S.H., but the earlier order concerning college expenses was modified. The allocation of college expenses was modified to provide that "in the event the parties cannot agree upon allocation of college expenses, when incurred, the parties may submit the issue to mediation or present the same to the Court."

Defendant then submitted a motion and plaintiff submitted a cross-motion. On June 22, 2007, the court ordered that the paragraph in the prior order pertaining to the college support was to be vacated. Plaintiff was thereafter ordered to pay $841 towards the balance of the 2006-2007 uncovered college costs. The trial judge then modified the earlier orders with respect to college contribution by providing that: (1) consideration shall be given to grants, aid, or scholarship; and (2) the parties shall share college costs in proportion to their respective ability to contribute at the time the application is made. Plaintiff was further ordered to pay child support arrearages. Also, plaintiff's request for defendant to pay her car repairs was denied. Lastly, plaintiff's request for assistance with her daughter was denied because the daughter was emancipated.

On July 18, 2007, Judge Toto issued an order identical to the June 22, 2007, order.

Plaintiff filed a motion to which defendant submitted a cross-motion. On August 28, 2007, Judge Toto ordered that plaintiff's dissatisfaction with certain earlier orders is not a basis for reconsideration under Rule 4:49-2. Defendant was ordered to pay alimony arrearages. Plaintiff's request for an increase in alimony was denied. More significantly, plaintiff's request to terminate future contribution to S.H.'s college education was granted, as S.H. had joined the armed forces. Judge Toto ordered that plaintiff was, as of August 1, 2007, no longer responsible for child support for S.H.

On October 18, 2007, Judge Bryan D. Garruto ordered that plaintiff's request to vacate several prior orders was denied, stating again that plaintiff's dissatisfaction with the court's prior rulings is not a basis for reconsideration consistent with Rule 4:49-2. Once again, defendant was ordered to pay the five weeks alimony arrears and plaintiff was ordered to pay child support arrears. Plaintiff's request to terminate future contribution to S.H.'s college education was again granted, as S.H. had joined the armed forces. Plaintiff was ordered to pay her arrears, however, since they accrued prior to the emancipation, plaintiff's request for an increase in alimony was denied, as was defendant's request to terminate or decrease alimony.

Finally, on November 16, 2007, Judge Garruto, after reviewing plaintiff's November 2, 2007, motion and defendant's cross-motion as outlined above, ordered that defendant's application to enforce litigant's rights by compelling plaintiff to reimburse defendant for her share of S.H.'s college expenses was granted. Defendant's application to hold plaintiff in violation of litigant's rights for failure to comply with several court orders directing her to pay her share of her son's college expenses was granted. Additional penalties were put into place in the event that plaintiff failed to pay within ten days of the date of the order. Furthermore, plaintiff was ordered to pay $500 to defendant's counsel for fees and costs incurred in the application to enforce the rights of the defendant. The actual fees were $2434.70. All of plaintiff's and defendant's other applications were denied.

On appeal, plaintiff raises the following points for our consideration:

POINT I

THE FAMILY COURT ERRED BY NOT CONSIDERING ALL FACTS PRESENTED.

THE FAMILY COURT WAS NOT IN JURISDICTION.

THE FAMILY COURT DID NOT TAKE INTO CONSIDERATION PLAINTIFF'S FINANCIAL POSITION.

THE FAMILY COURT OVERLOOKED THE FACT THAT THE PROPER RECOURSE WAS NOT TAKEN BY DEFENDANT.

A. Plaintiff is not in the same standard of living as during the marriage.

B. The court erred in not addressing the QDRO's years ago and reducing the amount to plaintiff.

C. The court erred in assigning defendant's attorney fees to plaintiff and not giving plaintiff reasonable attorney fees.

D. Plaintiff ordered to pay sums within ten days of order or be sanctioned and defendant's attorney sent order twelve days after issuance.

E. The family court confuses all the monetary figures.

F. The air force is paying for S.H.'s college expenses.

G. Defendant asking for more funds from plaintiff above bankruptcy award.

H. Defendant's attorney got the facts wrong.

After carefully reviewing the record, we affirm the November 16, 2007, order substantially for the reasons expressed by Judge Garruto in his thorough and carefully crafted memorandum attached to his November 16, 2007, order. We add only the following.

The parties have filed and pursued numerous appeals and myriad motions with respect to the dissolution of this marriage. Many of the arguments made by each party were not supported by appropriate facts and legal authority. Moreover, the "facts" supporting many of the arguments were not bolstered by the appropriate documentation and unfortunately they left it to the trial court to sift through confusing and disorganized materials submitted to it in an effort to appropriately rule on their applications. Many of the applications were duplicative of earlier ones, some were just "complaints" and did not set forth specific requests for relief. In such cases, our courts are placed in "no position to fairly consider any such issue[s]" and may and should decline to address those applications. See D'Ercole v. Mayor of Norwood, 198 N.J. Super. 531, 542 (App. Div. 1984).

We also recognize that in such cases, there well may be an abuse of judicial process and a waste of personal and judicial resources in responding to repeated duplicative, unsupported or incomprehensible motions, and we vigorously disapprove such a course of conduct. Beck v. Beck, 239 N.J. Super. 183, 191 (App. Div. 1990). Each of the parties should recognize that a litigant who makes frequent and repetitive applications for the purpose of abuse, harassment, or to secure a "lateral appeal," may be dealt with by available sanctions. Ibid.

The November 16, 2007, order is affirmed.

(continued)

(continued)

11

A-1861-07T2

December 31, 2008