VELUSWAMY MATHIARASAN v. POORNIMA VEERASWAMY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0843-10T3

VELUSWAMY MATHIARASAN,

Plaintiff-Appellant,

v.

POORNIMA VEERASWAMY,

Defendant-Respondent.

________________________________________________________________

ArguedApril 12, 2011 Decided June 24, 2011

Before Judges Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-885-05c.

Veluswamy Mathiarasan, appellant, argued the cause pro se.

Poornima Veeraswamy, respondent pro se.

PER CURIAM

Plaintiff Veluswamy Mathiarasan appeals from an order of August 10, 2010, recalculating child support, and an order of September 16, 2010, denying without prejudice reconsideration of the prior order. After reviewing the record in light of the contentions advanced on appeal, we remand to enable the trial judge who entered the original order to place his reasons on the record and decide the issue of whether imputation of income to the parties is appropriate and, if so, whether recalculation of child support is appropriate.

Plaintiff and defendant Poornima Veeraswamy were married on May 21, 2000. Their only child was born in 2004, and a divorce was granted, after trial, on November 13, 2006. At the time of the divorce judgment, the trial judge imputed $40,000 in income to defendant, finding her to be underemployed. Also, at the time of the divorce, defendant was the parent of primary residence (PPR) as that term is defined in the Child Support Guidelines, as their son resided with her for the majority of the time. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2442 (2011). On August 15, 2007, the parenting schedule was modified,1 and on October 9, 2009, an order was entered dividing the parenting time equally between the parents, with each parent spending every other week with their child beginning January 4, 2010.

On July 9, 2010, plaintiff filed a motion seeking a modification of child support commensurate with the additional parenting time he now enjoyed and an imputation of income to defendant of $60,000, as well as other relief. Plaintiff asked the judge to make an adjustment to the Child Support Guidelines for controlled costs, pursuant to Benisch v. Benisch, 347 N.J. Super. 393 (App. Div. 2002), as the parties shared parenting time equally. Defendant replied that she was educated in India, had only a bachelor's degree and lacked work experience. She said plaintiff, on the other hand, should be able to find a higher-paying job because he earned a master's degree in the United States. She filed a cross-motion seeking, among other relief, that income be imputed to plaintiff. Plaintiff was earning an annual W-2 income of $106,000 and defendant approximately $45,000.

Plaintiff sought oral argument on the motion, and defendant requested not to have oral argument, claiming her former husband was harassing her, and she feared an absence from work to attend oral argument might jeopardize her job. On at least two occasions in the past, defendant had reported to the police that plaintiff did not return their child timely. On both occasions, the parties had a disagreement as to the meaning of the court order. The judge denied oral argument on this motion and issued an order with a shared parenting Child Support Guideline worksheet attached, which did not address the issues of imputation of income to either party or the request to back out controlled expenses given the equal division of parenting time. See Benisch, supra, 347 N.J. Super. at 397-401; Wunsch-Deffler v. Deffler, 406 N.J. Super. 505, 509 (Ch. Div. 2009). This order did not give any reasons for the decision. See Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002) (holding that a completed Child Support Guideline worksheet is not an acceptable substitute for the required findings).

Plaintiff filed a motion for reconsideration that was heard by a different judge, as the original motion judge had been transferred to a new division.2 The new judge then found that no evidence was presented that had not previously been considered and denied the motion. Reasons for this decision were placed on the record by this judge.

On appeal, plaintiff argues that the initial motion judge erred by: (1) not adjusting the Child Support Guidelines by a portion of the controlled expenses given the equal time-sharing arrangement; (2) not imputing income to defendant; (3) denying oral argument; and (4) failing to make findings of fact and conclusions of law.

Although the judge's decision to hold oral argument on a motion is discretionary, "there is a strong presumption favoring argument of motions other than calendar matters and routine discovery applications." Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 5:5-4(a) (2011) (citing Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997)). As we noted in Palombi v. Palombi, 414 N.J. Super. 274, 285 (App. Div. 2010), Rule 5:5-4(a)

has generally been interpreted to require oral argument "when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998). The denial of oral argument when a motion has properly presented a substantive issue to the court for decision "deprives litigants of an opportunity to present their case fully to a court." Ibid. We do not retreat from that interpretation of the Rule.
 
However, the Rule still permits a trial court to exercise its discretion to deny such requests, even in cases involving "substantive" issues. The discretion afforded by Rule5:5-4(a) is designed to give the judge "the option of dispensing with oral argument . . . when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision. In short, it is the sole purpose of these rules to dispense with what is regarded as unnecessary or unproductive advocacy." Fusco v. Fusco, 186 N.J. Super.321, 328-29 (App. Div. 1982).

Here, oral argument would have been helpful in resolving the issues disputed by the parties, and thus, we conclude that the judge should have granted plaintiff's request for oral argument. Defendant presents reasons involving her work responsibilities and relationship with plaintiff to explain why she does not want to participate in oral argument. She may choose not to appear at oral argument.3

We cannot properly assess the decisions made by the original motion judge, however, because no reasons for those decisions were placed on the record. Rule 1:7-4(a) requires the court to "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . ."

"Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch,240 N.J. Super.441, 443, (App. Div. 1990). "The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl,287 N.J. Super.337, 347, (App. Div. 1996). We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so. Barnett & Herenchak, Inc. v. State Dep't of Transp., 276 N.J. Super. 465, 473, (App. Div. 1994).

[Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008).]

The original motion judge did not make any findings on any issue and did not address the cross-requests by the parties to impute income to the other party or plaintiff's request to adjust the Child Support Guidelines. Instead, the judge noted that "[a]ny and all requested relief not specifically mentioned above is DENIED WITHOUT PREJUDICE." A denial without prejudice in a post-judgment matrimonial motion with no direction from the judge indicating under what circumstances the motion may be renewed is not helpful to the parties and represents a failure to address an issue raised. We do not doubt that the imputation of additional income to either party may have been unlikely under the circumstances, given that both parties were working full-time. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2439 (2011) (noting that to determine whether or not to impute income, the court should consider what the employment status and earning capacity of the parents would have been if they had not divorced). See, e.g., Caplan v. Caplan, 182 N.J. 250, 268 (2005) (concluding that "the imputation of income to one or both parents who have voluntarily remained underemployed or unemployed, without just cause, will promote a fair and just allocation of the child support responsibility of the parents"). All issues must be addressed by the judge, however, and reasons given for all decisions.

Consistent with recent case law, plaintiff also raised the issue of modifying the Child Support Guidelines given the equal time the child spent with each party. See Benisch, supra, 347 N.J. Super. at 397-401; Wunsch-Deffler, supra, 406 N.J. Super. at 509. In Benisch, supra, we discussed the need, when parents have equal parenting time, to determine which parent actually pays the "'controlled costs,'" which include "'clothing, personal care, entertainment and miscellaneous expenses.'" 347 N.J. Super. at 397 (quoting Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2444 (2011)). In Benisch, we remanded to the trial judge to give the judge an opportunity to express reasons for determining that one parent was the PPR and therefore rightfully assumed to pay for controlled expenses. Absent such reasons, we instructed the judge to "make an appropriate adjustment" to the Guidelines worksheet child support calculation. Benisch, supra, 347 N.J. Super. at 400.

In Wunsch-Deffler, supra, the trial court described a mechanistic solution to dividing the cost of the controlled costs between the parties in proportion to their incomes. 406 N.J. Super. at 509. In the appropriate situation, this would be a good solution. Where the parents have a highly contentious relationship, as here, to ask them to equally divide the responsibility for providing their child with "clothing, personal care, entertainment and miscellaneous expenses" does not appear workable to us. Id. at 408. The original motion judge will have to determine on remand the appropriate adjustment to the Child Support Guideline worksheet, if any, for this family given the equally shared parenting time. If the judge determines that defendant should properly be considered the PPR, no adjustment will be necessary.

If the judge determines on remand that a hearing or oral argument is necessary to fully decide the issues, we urge defendant to participate so that a full and fair record containing input from both parents will be developed before the judge.

Reversed and remanded to the trial judge who decided the April 10, 2010 motion for further proceedings in conformance with this opinion.

1 Plaintiff claims that this order provided equal time with the child for both parents; however, the order only lengthens unspecified evening visits to overnight visits without explicitly indicating that the parents will then share parenting time equally.

2 The motion for reconsideration should have been assigned to the judge who decided the original application, even if that judge was then sitting in a different division. See O'Brien v. O'Brien, 259 N.J. Super. 402, 406 (App. Div. 1992).

3 Defendant chose not to appear before us for oral argument either.