K.L-J v. J.J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3907-08T13907-08T1

K.L-J.,

Plaintiff-Appellant,

v.

J.J.,

Defendant-Respondent.

________________________________________

 

Argued January 26, 2010 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1157-97.

K.L-J., appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff K.L-J. appeals from several orders fixing child and spousal support. She contends that the Family Part erred in declining to make the orders retroactive to the date she first filed a motion for support and in imputing income to her that she is not capable of earning because of medical disability. Defendant J.J. participated in the hearings in the Family Part and attended oral argument before us but has not filed a brief. We have reviewed the record on appeal and now affirm the Family Part's orders.

The parties were married in 1994. They have one child together, born in 1995. Plaintiff-wife filed a complaint for divorce in January 1996. In February 1997, she obtained a final restraining order against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and he was barred from the marital home. The restraining order gave temporary custody of the child to plaintiff and ordered defendant to pay $62 per week for child support.

Plaintiff filed a number of motions in the divorce action, but she never sought a final judgment of divorce. The court dismissed the divorce action in May 1999. More than eight years passed without further court proceedings between the parties. At some point between February 1997 and the fall of 2007, but not otherwise specified in the record, the parties reconciled, and defendant moved back into the marital home.

In October 2007, plaintiff sought child and spousal support. She informed court staff that a restraining order had been previously entered, and, as a result, her application for support was docketed under the 1997 domestic violence case. She appeared in court before Judge Michael J. Haas on November 9, 2007. The judge noted that plaintiff's application was for long-term, ongoing support, rather than emergent financial support, and he had no information regarding the parties' financial circumstances. The judge dismissed plaintiff's application without prejudice to plaintiff refiling it with a case information statement (CIS), setting out her income, assets, and expenses. He also directed defendant to prepare and file a CIS. The judge entered an amended final restraining order addressing some issues concerning parenting time and personal property.

Plaintiff then refiled her motion on December 13, 2007, seeking child support and further amendments of the restraining order, but this time she did not specifically request spousal support. Each party filed a CIS, although without complete information. Judge Haas took testimony from the parties on January 4, 2008, granted amendments of the restraining order, and ordered defendant to pay child support in the amount of $150 per week effective from that date.

About five months later, defendant filed a motion to amend the order to permit biweekly rather than weekly payment of his child support obligation. In response, plaintiff filed a cross-motion for spousal support and other relief. When the parties appeared before Judge Haas on July 11, 2008, he granted some of the relief requested by each party but denied without prejudice plaintiff's motion for spousal support, again because of insufficient financial information. The judge also concluded that, in the circumstances of this case, plaintiff's motion for spousal support should be made as a separate claim from the domestic violence matter.

On September 30, 2008, plaintiff filed a complaint for spousal support as a separate, family court matter. Judge Jeanne T. Covert reviewed the financial information filed by the parties and otherwise heard plaintiff's application on November 18, 2008. On the same date, the judge issued an order for spousal support of $163 per week retroactive to September 30, 2008, the date the motion before her was filed. Judge Covert also recalculated and reduced defendant's child support obligation to $136 per week because payment of spousal support altered the parties' relative incomes.

Defendant then moved for reconsideration of Judge Covert's order, requesting that the court impute additional income to plaintiff. The parties appeared before Judge Covert on January 20, 2009. After hearing from the parties and considering documentary evidence, including plaintiff's documentation of her medical disability, Judge Covert concluded that plaintiff did not have sufficient evidence to support her contention that she could not work. The judge accepted plaintiff's documentation indicating that she was 75% disabled, for which she received benefits of $1,655 per month. Based on that documentation and her determination that plaintiff had not proven 100% disability, the judge imputed an additional 25% of income to plaintiff using Department of Labor charts. As a result of her findings, Judge Covert reduced the order of spousal support to $100 per week, also stating in her order that spousal support should in the future be addressed under the domestic violence docket.

Subsequently, Judge Covert issued an administrative order on February 9, 2009, closing the file before her and ordering that future issues between the parties be addressed as part of the 1997 domestic violence case.

Plaintiff then filed a motion for reconsideration of Judge Covert's order reducing her spousal support, and, on February 27, 2009, the matter came to be heard by Judge Haas on the domestic violence calendar. After hearing from the parties, Judge Haas denied plaintiff's motion to increase the spousal support. He prepared a new work sheet of the parties' incomes and obligations and ordered that defendant pay biweekly child support of $298 ($149 per week), spousal support of $200 ($100 per week), and arrears payments of $20, for a total support obligation of $518 every two weeks.

Plaintiff filed a notice of appeal to this court from the several orders. Before us, she argues that both the child support and spousal support orders should be retroactive to November 9, 2007, when she first filed for both kinds of support, and that the judges erred in imputing income to her because she is undergoing vocational rehabilitation and is under a doctor's care.

In reviewing decisions of the Family Part, we are particularly deferential to the trial judge's knowledge and direct contact with the case and parties. See Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998); see also Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002) (appellate courts grant "substantial deference" to "discretionary determinations" of family court judges). We defer to the trial judges' findings and conclusions regarding spousal support if they "are supported by substantial credible evidence in the record as a whole." Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000) (quoting Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998)).

Having reviewed the record provided to us by plaintiff, we conclude that substantial evidence supports both judges' orders. Plaintiff's arguments are without sufficient merit to warrant lengthy discussion in a written opinion. R. 2:11-3(e)(1)(A). We affirm the decisions of the Family Part judges for the reasons stated in Judge Haas's thorough and detailed April 30, 2009 written explanation of his several rulings, and in Judge Covert's oral decision of January 20, 2009. We add only the following comments.

Judge Haas noted that the last support order of February 27, 2009, produces balanced income between wife and husband. After taking into consideration the income of each and the payments from defendant to plaintiff, defendant nets $624 per week after taxes and plaintiff nets $602 per week despite the fact that she is not working.

With respect to the two judges' decisions on retroactivity of the support orders, we note that plaintiff did not have sufficient financial information for the judges to make informed decisions until Judge Haas took testimony from the parties on January 4, 2008, for child support, and until plaintiff filed an adequate CIS with her motion for spousal support on September 30, 2008. Therefore, making those the effective dates of the support orders was not an abuse of the judges' discretion in ordering child and spousal support.

Also, in the course of fifteen months, the judges heard numerous applications, mostly by plaintiff, and they made many adjustments in the orders for the benefit of both parties. These adjustments pertained to several matters in addition to financial support, such as parenting schedule, counseling, and directives to court staff to review and adjust discrepancies in the support accounts. Both judges were attentive to the parties' needs and requests.

We are concerned, however, that plaintiff received conflicting information about the proper Family Part case type in which to make her application for support. The conflicting information may have contributed to delay in resolving plaintiff's application for spousal support, although, as we have stated, the primary cause for delay appears to have been plaintiff's failure to provide sufficient financial evidence for the court to make an informed decision.

The question of the appropriate docket for plaintiff's several applications is not simple in the circumstances presented here. Plaintiff appeared at the courthouse in 2007 and made reference to a ten-year-old domestic violence restraining order. Sometime during those ten years, she and defendant had reconciled and resumed their marital relationship in the marital home, perhaps for many years. Our decisions in Mohamed v. Mohamed, 232 N.J. Super. 474 (App. Div. 1989), and A.B. v. L.M., 289 N.J. Super. 125 (App. Div. 1996), discussed the question of whether a domestic violence restraining order was still effective despite the plaintiff's conduct implying that she no longer needed a restraining order.

The record before us does not include transcripts of proceedings in 2007 and 2008, when the parties appeared before Judges Haas and Covert. Consequently, we cannot tell whether an issue arose at those hearings regarding the parties' reconci-liation after entry of the 1997 final restraining order. In A.B., supra, 289 N.J. Super. at 131, we directed trial courts to scrutinize the factual circumstances to determine whether reconciliation should be a basis to vacate a stale restraining order. The issue has not been raised in this appeal, and we leave for another day a further discussion of reconciliation as potentially nullifying a restraining order.

Because plaintiff ultimately was heard in the Family Part and an order for support was entered, our comments regarding the appropriate case type are directed only to the administrative decisions made by court personnel, not to the merits of plaintiff's application.

Having found no error in the Family Part's several rulings, we affirm the orders appealed from.

 

We do not read State v. Sanders, 327 N.J. Super. 385 (App. Div. 2000), as abrogating the principle enunciated in Mohamed, and still extant after A.B., that long-term reconciliation of the parties can serve to nullify a domestic violence restraining order.

We also have no information on this record that an amended final restraining order was entered in November 2007 as a result of a finding that defendant committed new acts of domestic violence, or that plaintiff was in need of continued protection.

We are also troubled by statements in plaintiff's brief that a manager in the Burlington County Family Division told her that Judge Haas had erred in denying her application for spousal support. We have no way of knowing whether plaintiff's statements are accurate, or reflect a misunderstanding. For future reference, plaintiff should understand that court staff are not judges themselves with authority or the qualifications to make decisions of law, or to express opinions about whether a judge's decision is correct. As we have said, the factual circumstances here were not so simple that court staff could confidently determine under what case type the matter should proceed. That decision belonged to a judge conducting a hearing in the courtroom.

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10

A-3907-08T1

RECORD IMPOUNDED

March 22, 2010