BRIDGET LOMBARD v. WILLIAM M. LOMBARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BRIDGET LOMBARD,

Plaintiff-Appellant,

v.

WILLIAM M. LOMBARD,

Defendant-Respondent.

February 27, 2014

Submitted December 17, 2013 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-153-06.

Bridget Lombard, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In a September 10, 2012 proceeding, neither oral argument nor plenary hearing, a Family Part judge addressed issues regarding ongoing child support, child support arrears, and college contributions for the parties' two children. Plaintiff was self-represented; defendant William M. Lombard was represented by counsel.

For the reasons that follow, we now vacate the orders which were subsequently entered. Those orders resulted from the judge's consideration of the facts and relevant law dating back to September 10, 2012, as supplemented by his two-page decisions dated October 2, 2012, and December 11, 2012. For the reasons that follow, we now vacate the orders that the court subsequently entered on September 10, 2012, October 2, 2012, and December 11, 2012. The last two orders were supplemented by two-page decisions. After a sixty-day period for discovery, an expedited plenary hearing shall be conducted regarding all the issues addressed in those orders.

The September proceeding was the culmination of submissions triggered by defendant's notice of motion to modify child support, vacate arrears, and for other relief. Thereafter, plaintiff cross-moved, seeking enforcement of the child support order previously in effect. Prior to the September proceeding, defendant filed three separate submissions and certifications, while plaintiff filed two.

The September proceedings are captured in a forty-page transcript. Approximately midway through the discussion, the judge said, "it seems to me that there's a lot of miscommunication and un-communication and I'd like to avoid the necessity of a hearing at this particular point." He then directed the parties to confer and attempt to amicably resolve their differences. They later returned and reported on the record that they were unable to reach an agreement. The judge responded:

I would like to avoid a hearing for a couple of reasons. Number one, I don't want to do it. Number two, it's going to cost you guys time and money. And the answer isn't going to be any better than looking at your papers, but I don't have those current [college expense and related] costs. So, what I want you to do is to update the current costs.

Next, the judge administered the oath to plaintiff and asked her questions regarding her case information statement (CIS). See R. 5:5-2. As a result, he recalculated her monthly expenses, commenting that he did not "think it [was] going to get any better" for her. Defendant's attorney then raised the issue of an approximate $2000 in child support arrears, while plaintiff raised the issue of accounts she alleged contained approximately $13,000, earmarked by defendant's parents, for the children's college expenses. After several more pages of discussion, the judge directed the parties to provide him with "the net out of pocket for each of the schools . . . ," and that counsel provide him with a form of order reflecting his decision.

The judge did not explain his determination that defendant had been "overpaying for some time," nor his decision to vacate the $2000 arrears. He did not articulate how this decision accorded with N.J.S.A. 2A:17-56.23a, which bars retroactive modification of child support in most circumstances. The judge made no disposition of the college accounts nor the reason he decided that plaintiff's expenses totaled $30001 monthly, of which he attributed "a thousand of that . . . for the children," and adjusted child support accordingly.

In his October 2, 2012 decision letter, the judge set the numbers for his calculations based on the parties' additional submissions. This was the fourth submission for defendant, and the third for plaintiff. The judge stated, without identifying the materials upon which he was relying, as follows:

Accordingly, Elizabeth's total cost for the college year 2012-2013 is $5,920, plus $5,920, plus $1,945, plus $1945, minus $2,000, minus $2,000, minus $3,250, minus $3,250 plus $5,805 equals $11,035. 40% of that is $4,414 or $368 monthly.

With regard to Billy, his annual expenses are $3,374.06 ($2,024.44 for Mr. Lombard and $1,350 for Mrs. Lombard or $170 per month for Mr. Lombard and $113 per month for Ms. Lombard.)

Accordingly, monthly Mr. Lombard pays $600 plus $170 for Billy equals $770. Ms. Lombard pays $368. The difference in payment is $402 from Mr. Lombard to Ms. Lombard per month or $94 per week that will be the order of the court effective July 5, 2012, the filing date.

On December 11, 2012, the judge issued a second letter opinion, most likely on account of an application for reconsideration2 filed by plaintiff. The decision opens with a reference to "the pending motion and cross motion," without further identification. In it, the judge vacated "[a]ny arrears existing on September 10, 2012 . . . ." He also referred to the fact that he had mistakenly assumed plaintiff was paying for the son's college tuition, resulting in a reduction in the amount owed by defendant to plaintiff of some $170 weekly. It is not clear whether the amount was payable monthly or on some other installment basis. The judge then considered the calculations set forth in his earlier October 2, 2012 order, and continued:

[T]he corrected/amended math is as follows:

For Elizabeth the amended cost is $5,230 (I have backed out the $5,805 representing the $150 weekly cash contribution). 40% of that is $2,092 or $175 per month. Mr. Lombard pays $600 per month minus the $175. Ms. Lombard owes for Elizabeth, and minus the $113 she pays for Billy. That translates to $312 per month or $73 per week. That will be my order effective July 5, 2012.

With regard to the Stratton accounts, I make no further order. Those monies were not part of the marital estate. If Mr. Lombard improperly converted same, the remedy is in other venues.

Rule 1:7-4(a) requires a court to "find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right." The rule was not satisfied in this case, despite the issuance of two written decisions after an initial partial decision rendered from the bench. We cannot discern if the judge drew conclusions regarding credibility, or which figures he employed in his calculations.

In any event, despite the many written submissions by both parties, there were significant disputed material facts which cried out for a plenary hearing. Reliable and accurate figures are necessary to determine child support and college contributions.

The judge repeated during the course of the September hearing that the necessary figures were "a moving target." That problem would have been avoided had a plenary hearing been conducted.

Where multiple submissions by the parties agreed on virtually none of the facts, a plenary hearing was required. Genuine, material, and legitimate factual disputes existed which warranted such attention. See Segal v. Lynch, 211 N.J. 230, 264-65 (2012). The parties did not agree even as to basic facts, such as the cost of the children's schooling or the children's related expenses. The parties' multiple warring certifications and plaintiff's limited testimony simply did not provide the necessary answers. See Segal, supra, 211 N.J. at 265; Dunne v. Dunne, 209 N.J. Super. 559, 571 (App. Div. 1986); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968). The parties provided multiple additional submissions after the first sets and filed additional motions and cross-motions over several months involving the same issues. A plenary hearing would have ultimately saved the court and the parties time.

1 Plaintiff's CIS expenses were actually $5200, but the trial judge deducted $2200, the mortgage payment, because the home is in foreclosure and plaintiff alleged she was unable to pay it.

2 Plaintiff is self-represented on this appeal and defendant did not file a timely response. We are not certain if the appendix contains all the relevant documents.