THOMAS J. TOMCHAK v. MICHELE F. TOMCHAK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THOMAS J. TOMCHAK,

Plaintiff-Respondent,

v.

MICHELE F. TOMCHAK,

Defendant-Appellant.

__________________________________________________

Argued May 28, 2014 Decided June 10, 2014

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0543-10.

John A. Patti argued the cause for appellant.

Kristin S. Pallonetti argued the cause for respondent (Law Office of Steven P. Monaghan, L.L.C., attorneys; Ms. Pallonetti and Steven P. Monaghan, on the brief).

PER CURIAM

Plaintiff Thomas J. Tomchak and defendant Michele F. Tomchak were married on April 13, 1996. Two daughters were subsequently born in 1997 and 1999. On September 30, 2009, plaintiff filed for divorce, and on March 2, 2010, a final judgment of divorce (JOD) was entered, incorporating the parties' consensual marital settlement agreement (MSA).

Among other things, the MSA required plaintiff to pay defendant child support of $286 per week and $519 per week in limited duration alimony for a period of five years, plus "an additional amount of annual alimony that equates to twenty (20%) percent of the pre-tax amount of any year-end bonus" plaintiff received. The MSA specifically provided that the "alimony [was] based upon [plaintiff]'s base income of $170,000[] per year, and [defendant]'s expected income of $60,000 per year[,]" and it further required plaintiff to "communicate with [defendant] regarding the amount of any bonus and . . . facilitate any additional alimony payment[,]" including "provid[ing] documentation by way of a W-2 form, or other documentation from his employer verifying the amount of the additional bonus payment."

In May 2012, defendant moved for various relief, claiming in part that plaintiff failed to verify his bonuses for 2010 and 2011, and that he was now earning more than $170,000 per year as stated in the MSA. Defendant certified that her gross income for 2011 was $27,023, not $60,000 as anticipated in the MSA. She also claimed that, since the parties did not exchange case information statements when they entered into the MSA, she was unaware of "the exact amount of assets . . . that were in . . . [p]laintiff's name." Defendant certified that since the entry of the JOD, she became aware of a 401K plan in plaintiff's name that was reflected on his 2009 pay stubs. Defendant requested oral argument on her motion.

Plaintiff filed a cross-motion, seeking an order denying defendant's motion in its entirety and granting him various affirmative relief. Plaintiff provided a detailed certification denying the factual predicates of defendant's motion. Among other things, plaintiff argued that defendant had failed to demonstrate changed circumstances justifying modification of the MSA. See Lepis v. Lepis, 83 N.J. 139, 148 (1980). Plaintiff also requested oral argument.

For reasons unexplained by the appellate record or by the parties during argument before us, the judge did not entertain oral argument on either the motion or cross-motion. On August 1, 2012, he issued an order (the August order) compelling plaintiff to pay all arrears in alimony and support with thirty days and provide "quarterly statements for any and all college accounts." All of defendant's other requests for relief were denied.1 In the written statement of findings of facts and conclusions of law accompanying the order, before setting forth the parties' marital history and ordering mediation, the judge only explained: "All reliefs granted are enforcing prior orders and[/]or the parties' property settlement agreement. Findings from the [c]ourt's previous order are incorporated herein by reference."2

On August 28, 2012, defendant filed a motion for reconsideration and again requested oral argument. Plaintiff cross-moved seeking, among other things, denial of defendant's motion essentially because she presented no new evidence or arguments. Plaintiff, too, sought oral argument.

On October 11, 2012, again without entertaining oral argument, the judge entered an order (the October order) denying defendant's motion in its entirety. In his written findings of fact and conclusions of law, the judge stated:

[t]he [c]ourt agrees with [p]laintiff that [d]efendant's [m]otion for [r]econsideration should be denied. Defendant has not shown that the [c]ourt either . . . expressed its decision upon a palpably incorrect or irrational basis, or . . . that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence. In this present [m]otion, it appears that [d]efendant is trying to reargue the [m]otion that has already been heard and ruled upon.

Defendant filed a notice of appeal on November 20, 2012 that sought review of both the August order and the October order.

Before us, defendant argues that the judge "abused his discretion" by failing to adequately explain his findings of fact and conclusions of law as required by Rule 1:7-4(a) regarding both the August and October orders. She further contends that she demonstrated a "substantial change of circumstances" since entry of the MSA that warranted modification, and the judge should have compelled plaintiff to produce "his financial documents," including those regarding the "newly[-]discovered evidence" of plaintiff's 401K savings plan.3

We agree with defendant that the judge's failure to adequately explain his reasoning in entering the August 1 order limits our meaningful review. We also conclude that the failure to accord defendant, indeed both parties, oral argument as requested, was a mistaken exercise of the judge's discretion. We therefore reverse, and remand the matter to the Family Part to permit, in the first instance, both parties to orally argue their motions. We do not, however, compel any particular result regarding defendant's claim that she demonstrated a substantial change of circumstances requiring modification of the MSA or was entitled to the financial discovery she demands.

Initially, we note that, although defendant seeks review of both the August order and the October order, her appeal is timely only as to the October order denying her motion for reconsideration. "Appeals from final judgments of courts . . . shall be taken within [forty-five] days of their entry." R. 2:4-1(a). However, "[t]he running of the time for taking an appeal . . . shall be tolled . . . by the timely filing and service of a motion to the trial court for . . . reconsideration seeking to alter or amend the judgment or order pursuant to [Rule] 4:49-2." R. 2:4-3(e). "The remaining time shall again begin to run from the date of the entry of an order disposing of such a motion." Ibid.

In this case, a total of sixty-eight days elapsed between entry of the August order and the filing of defendant's motion for reconsideration, and between the entry of the October order and the filing of defendant's notice of appeal. Defendant's appeal from the August order is, therefore, untimely. Nevertheless, under the particular circumstances presented, we consider the August order to be relevant to our disposition of this appeal.

It is axiomatic that "[r]econsideration itself is 'a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.]" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). The remedy is reserved only for cases where "'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 appreciate the significance of probative, [19] competent evidence.'" Ibid.(quoting D'Atria, supra, 242 N.J. Super. at 401). Reconsideration is also appropriate where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005) (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, Comment 2 on R. 4:49-2 (2005)). Reconsideration should be exercised "'in the service of the ultimate goal of substantial justice.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). While defendant's motion for reconsideration presented little that was different from her original motion, given the paucity of the judge's statement of reasons in support of the August order, it would be difficult for anyone to ascertain what the judge did, or did not, consider at that time.

Rule 1:7-4(a) provides that "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . . ." As we recently said, "[i]n matrimonial matters, judges should enter final judgments accompanied by the underlying factual findings and reasoning." Ducey v. Ducey, 424 N.J. Super. 68, 74 (App. Div. 2012). "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). Particularly pertinent to this case, "[t]he court must clearly set forth factual findings and legal conclusions for the benefit of the parties . . . ." Gnall v. Gnall, 432 N.J. Super. 129, 157 (App. Div. 2013) (emphasis added), certif. granted, 217 N.J. 52 (2014).

Here, the statement of reasons supporting the August order was inadequate and did not explain the judge's legal reasoning for either party's benefit. Given this veritable blank slate, defendant understandably filed a motion for reconsideration that essentially repeated her original arguments, since she had no idea why the judge rejected them the first time around.

In denying the motion for reconsideration, the judge understandably relied upon the basic tenets of the case law cited above. However, because of the lack of explanation regarding the August order, we are unable to meaningfully review the judge's determination that his original decision was not "palpably incorrect or irrational," or that he did not "fail[] to appreciate the significance of probative, [19] competent evidence." Palombi, supra, 414 N.J. Super. at 288. We therefore reverse the October order and, under the unusual circumstances presented, the August order. We express no opinion about whether defendant is entitled to discovery and potentially a plenary hearing on her claim of substantial changed circumstances warranting modification of the MSA.

Although defendant has not raised the issue in a separate point heading in her brief, we agree that the judge mistakenly exercised his discretion by not entertaining oral argument. "[T]he court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions." R. 5:5-4(a). It suffices to say that "[t]here was patently no special or unusual circumstance here warranting the court's dispensing with an entirely appropriate request for oral argument of a motion presumptively entitled to argument on request." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997) (citations omitted). On remand, the judge shall permit defendant to orally argue her motion, limited to those issues raised on appeal, and of course, plaintiff shall be entitled to orally present his opposition for the judge's consideration.

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

1 The judge also granted some affirmative relief requested by plaintiff not relevant to our consideration of the issues on appeal.

2 The parties agree that the only prior orders entered were the JOD and a qualified domestic relations order (QDRO).

3 We agree with plaintiff that having not briefed any other substantive issues addressed by the August or October orders, defendant has waived them for purposes of appeal. See, e.g., Fantis Foods, Inc. v. N. River Ins. Co., 332 N.J. Super. 250, 266-67 (App. Div. 2000).