JENNIFER L. GRACE v. GARY GRACE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0325-13T4
JENNIFER L. GRACE,
n/k/a JENNIFER LAWRENCE,
Plaintiff-Respondent,
v.
GARY GRACE,
Defendant-Appellant.
_______________________________
Submitted December 8, 2014 – Decided August 4, 2015
Before Judges Guadagno and Leone.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Ocean County, Docket No. FM-15-378-00.
Gary Grace, appellant pro se.
Dolcy Law Firm, attorneys for respondent
(Colleen M. Dolcy, on the brief).
PER CURIAM
Defendant Gary Grace appeals the denial of his motion for
reconsideration of post-divorce orders increasing his child
support obligations, requiring him to provide payment to
plaintiff Jennifer Grace for certain orthodontic treatments for
his son C.G., and denying his request to claim C.G. as a
dependent on his income tax returns every year. Defendant
contends, among other things, that the trial court erred in
finding his latter two claims time-barred. We affirm.
I.
The parties, who divorced in 2001, have a son, C.G, born in
1998. On August 1, 2001, the parties orally entered into a
property settlement agreement, which they incorporated into the
final judgment of divorce (FJOD).
The parties agreed in the FJOD that plaintiff had sole
custody of C.G., and that any visitation should occur in New
Jersey and should be supervised by plaintiff's mother. 1 The
parties also agreed defendant could claim C.G. as a dependent on
his income tax returns every even-numbered year. Based on their
respective incomes at the time of the FJOD, the parties agreed
defendant would pay child support of $110.00 per week, and 50%
of C.G.'s unreimbursed medical expenses. Although the parties
have not provided the orders on appeal, that $110.00 per week
payment was evidently increased in 2003 and 2006, resulting in a
total obligation of $160.00 per week as of late 2012.2
In late 2012, plaintiff received a notice from the Ocean
County Board of Social Services (OCBSS), stating that she was
1
Defendant, who resides in Colorado, allegedly has not exercised
such visitation.
2
The parties mention a 2006 motion filed by defendant to reduce
his child support obligations, which apparently was denied.
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entitled to a triennial review of C.G.'s child support. At that
review, the OCBSS proposed to increase defendant's obligation to
$220.00 per week. Defendant objected to the OCBSS's
administrative calculation, and the issue was referred to the
court.
Plaintiff, represented by counsel, thereafter filed a
motion with the Family Part, requesting various relief,
including requiring defendant to reimburse plaintiff the sum of
$1,197.00 as his 50% share of unreimbursed medical costs
associated with C.G.'s orthodontic treatment, and increasing
child support for C.G.
Defendant, also represented by counsel, thereafter filed a
cross-motion seeking various relief, including reducing child
support to $106.00 per week, and permitting him to claim C.G. as
a dependent on his taxes every year.
On April 5, 2013, Judge Melanie D. Appleby issued an order
which granted plaintiff's request that defendant pay his $1,197
share of C.G.'s orthodontic expenses, and denied defendant's
request that he be permitted to claim C.G. as a dependent every
tax year. The only unresolved item concerned plaintiff's
application to increase child support. As reflected in the
tentative decision, the court found a substantial change of
circumstances justified a review of child support. The court
3 A-0325-13T4
required both defendant and plaintiff to provide specified
financial documentation within fourteen days. The court stated
it would review those documents "and execute an amended order as
to child support."
Pursuant to the April 5 order, the parties submitted
additional financial documentation. Defendant submitted: (1)
his updated CIS; (2) his three most recent paystubs; (3) his
2010, 2011, and 2012 W-2s; (4) his 2012 tax return; and (5) his
current wife's unemployment information. Plaintiff submitted:
(1) the 2012 joint tax returns for her new husband and her; (2)
documentation concerning Supplemental Security Income (SSI)
payments for her autistic son from a different marriage; (3)
evidence of rent and utility payments; (4) proof of payments
made for C.G.'s lunch; and (5) proof of her new husband's
unemployment benefits and alimony obligations to a prior spouse.
After reviewing the documentation, Judge Appleby issued a
supplemental order dated May 16, 2013, increasing defendant's
child support obligation to $220.00 per week. In coming to this
conclusion, the court made the following determinations. The
court found defendant's 2012 income ($81,815), accurately
represented his ability to pay. The court imputed $10,400 gross
annual income ($200 per week) to plaintiff, "as the [c]ourt
believed at best, [plaintiff] might be able to accommodate a
4 A-0325-13T4
part-time position (20 hours a week) at $10 an hour," given her
obligations to care for her autistic son from another marriage.
The trial court gave each party an other dependent
deduction, reflecting one of plaintiff's other children and
defendant's three other children. In calculating plaintiff's
other dependent deduction, the court also found that, although
plaintiff's new husband was then unemployed, his "historical
earning power ($1,115 a week)" more closely approximated his
income. The court declined to consider as a benefit to
plaintiff or C.G. the SSI payments plaintiff received for care
of her autistic child from another marriage. Further, the court
found that, although plaintiff was living in her parents' house,
she and her new husband were "persons responsible for utilities
at the home they share." The court declined to deviate from the
guidelines on those bases.
On June 11, 2013 defendant, now self-represented, filed a
motion for reconsideration of the April 5 and May 16 orders.
After oral argument, Judge Appleby denied defendant's motion for
reconsideration on August 2, 2013. The court determined that
defendant's motion for reconsideration of the April 5 order was
time barred, pursuant to Rule 4:49-2, and that no new evidence
warranted reversal of the May 16 order.
5 A-0325-13T4
II.
On appeal, defendant seeks to challenge the April 5 order
requiring him to pay $1,197 of orthodontic expenses, and denying
his request to deduct C.G. as a dependent every year. Defendant
argues his motion for reconsideration of the April 5 order
should have been considered timely because some issues from the
April 5 hearing were "still pending" until the May 16 order. In
order to determine whether the trial court appropriately barred
defendant's reconsideration motion of the April 5 order, we must
first determine whether that order was interlocutory or final.
Generally, a family court's post-judgment "modification of
a support decree is a final judgment for purposes of appeal[,]"
because it "determines the rights of the parties on some
definite and separate branch of the controversy[.]" Adams v.
Adams,
53 N.J. Super. 424, 428-29 (App. Div.), certif. denied,
30 N.J. 151 (1959); accord Saltzman v. Saltzman,
290 N.J. Super.
117, 124 (App. Div. 1996).
If, however, the April 5 order was interlocutory, the
motion for reconsideration would not be subject to the twenty-
day time constraint provided in Rule 4:49-2. "[T]he time
prescriptions set forth in Rule 4:49-2 apply to final judgments
and orders, not interlocutory orders, which are reviewable at
any time" until final judgment. Sullivan v. Coverings &
6 A-0325-13T4
Installation, Inc.,
403 N.J. Super. 86, 96 (App. Div. 2008).
Moreover, "'[a]n appeal from a final judgment raises the
validity of all interlocutory orders' previously entered in the
trial court." Sutter v. Horizon Blue Cross Blue Shield of N.J.,
406 N.J. Super. 86, 106 (App. Div. 2009) (quoting In re Carton,
48 N.J. 9, 15 (1966)).
Here, the transcript of the April 5 hearing shows the trial
court intended that its resolution of all issues, with the
exception of the still-pending re-calculation of child support,
to "become an order." The April 5 order resolved all of the
issues except for child support. This is confirmed by the
supplemental order issued May 16 addressing child support, which
conspicuously makes no reference to the other issues addressed
at the April 5 hearing. Thus, the April 5 order was a final
order resolving all the issues except child support. Therefore,
we agree with the trial court's decision that defendant's
arguments regarding those issues are time-barred.
Rule 4:49-2 provides that a motion for reconsideration
"shall be served not later than [twenty] days after service of
the [prior] judgment or order upon all parties by the party
obtaining it." Neither the parties nor the trial court can
extend this deadline. R. 1:3-4(c). Here, defendant filed his
7 A-0325-13T4
motion for reconsideration on June 11 — sixty-seven days after
April 5.
Defendant's appeal is also untimely as to the issues
resolved in the April 5 order. Rule 2:4-1(a) requires a notice
of appeal to be filed within forty-five days. Defendant's
"untimely motion to reconsider does not" toll the time for
appeal. Eastampton Ctr., LLC v. Planning Bd. of Eastampton,
354 N.J. Super. 171, 187 (App. Div. 2002). Therefore, the 45-day
period for seeking review of the April 5 order, expired on May
20, 2013, almost four months before defendant filed his
September 17, 2013 notice of appeal.
Accordingly, we do not consider defendant's untimely
challenges to the April 5 order requiring him to pay $1,197 for
C.G.'s orthodontics, and denying his request to deduct C.G. as a
dependent ever year. Defendant's remaining arguments about
those issues are without sufficient merit to warrant discussion.
R. 2:11-3(e)(1)(E).
III.
As to child support, the trial judge's April 5 order "was
interlocutory, since she did not enter a final order for child
support" until May 16. Christensen v. Christensen,
376 N.J.
Super. 20, 24 (App. Div. 2005). Plaintiff does not dispute the
timeliness of defendant's motion for reconsideration of the May
8 A-0325-13T4
16 order, the service of which on defendant was apparently
delayed. Nor does plaintiff dispute the timeliness of
defendant's notice of appeal from the August 2 order denying
reconsideration. Defendant filed his notice of appeal of the
August 2 order on September 17, forty-six days later, but we
granted his motion to file the notice of appeal one day out of
time. Therefore, his appeal of the August 2 order denying
reconsideration is properly before us.
However, defendant did not properly appeal the May 16 order
itself. His notice of appeal stated it was appealing only the
August 2 order. See R. 2:5-1(f)(3)(A). He did not attach the
May 16 order to his case information statement. See R. 2:5-
1(f)(2). More importantly, his September 17 notice of appeal
was not timely to appeal the May 16 order. Rule 2:4-1(a)'s
forty-five day "time to appeal may not be extended beyond the
30-day 'good cause' extension period permitted by [Rule 2:4-
4(a)]." Pressler & Verniero, Current N.J. Court Rules, cmt. 2
on R. 2:4-4(a) (2015); R. 1:3-4(b); see State v. Fletcher,
174 N.J. Super. 609, 614 (App. Div. 1980) ("These time limitations
are both mandatory and jurisdictional."), certif. denied,
89 N.J. 444 (1982). "The running of the time for taking an appeal"
is only "tolled" by the timely filing of a motion for
reconsideration. R. 2:4-3, -3(e). "[T]he forty-five day clock
9 A-0325-13T4
[to appeal the May 16 order] did not start anew from the date
that motion was denied." Potomac Aviation, LLC v. Port Auth. of
N.Y. & N.J.,
413 N.J. Super. 212, 221 (App. Div. 2010).
"Therefore, only [defendant's] appeal from the denial of [his]
reconsideration motion is timely." Id. at 222.
"Motions for reconsideration are granted only under very
narrow circumstances[.]" Fusco v. Bd. of Educ. of Newark,
349 N.J. Super. 455, 462 (App. Div.), certif. denied,
174 N.J. 544
(2002). As such, reconsideration should be used only for those
cases where "either (1) the Court has expressed its decision
based upon a palpably incorrect or irrational basis, or (2) it
is obvious that the Court either did not consider, or failed to
appreciate the significance of probative, competent evidence."
Ibid. (quoting D'Atria v. D'Atria,
242 N.J.Super. 392, 401 (Ch.
Div. 1990)); see R. 4:49-2. We review a trial court's denial of
reconsideration for abuse of discretion. Cummings v. Bahr,
259 N.J. Super. 374, 389 (1996). We must hew to that standard of
review.
Here, the trial court found that defendant's motion for
reconsideration presented "no new evidence" and failed to meet
"any of the standards required for reconsideration under R.
4:49-2." We find no abuse of discretion in denying
reconsideration. In any event, we reject defendant's arguments
10 A-0325-13T4
challenging the May 16 order increasing his child support
obligation to $220.00 per week.
First, the trial judge reasonably imputed income to
plaintiff at a rate of $10 per hour for twenty hours a week,
rather than $15 per hour for forty hours a week. The Child
Support Guidelines (Guidelines) provide that in imputing income,
the trial judge may consider "the reason and intent for the
voluntary underemployment or unemployment" as well as the "ages
of any children in the parent's household and child-care
alternatives." Child Support Guidelines, Pressler & Verniero,
supra, Appendix IX-A to R. 5:6A at 2635. Here, the trial judge
appropriately considered plaintiff's child care obligations to
her five children, including a six-year-old she certified to be
"severely autistic" and completely nonverbal. "Imputation of
income is a discretionary matter not capable of precise or exact
determination[,] but rather requir[es] a trial judge to
realistically appraise capacity to earn and job availability."
Elrom v. Elrom, 439 N.J. Super. 424, 434 (2015) (internal
quotation marks omitted). Because "we accord great deference to
discretionary decisions of Family Part judges," Milne v.
Goldenberg,
428 N.J. Super. 184, 197 (App. Div. 2012), and
"defer to the Family Part's special expertise," Colca v. Anson,
11 A-0325-13T4
413 N.J. Super. 405, 417 (App. Div. 2010), we find no abuse of
discretion here.
Second, the trial judge also appropriately excluded from
plaintiff's income the SSI benefits paid to plaintiff's autistic
son. As noted in the Guidelines, "[m]eans-tested benefits . . .
based on the fact that the child . . . has minimal income and
requires government assistance[,]" such as SSI, "are meant to
provide minimal subsistence and are excluded as income (not
counted for either parent)." Child Support Guidelines, Pressler
& Verniero, supra, Appendix IX-A to R. 5:6A at 2634. SSI
benefits "are not to be credited against the non-custodial
parent's child support obligation under applicable child support
guidelines" even if the SSI benefits are paid to the child for
whom child support is being calculated. Gifford v. Benjamin,
383 N.J. Super. 516, 518-21 (App. Div. 2006). They are
certainly not to be credited when paid to a child from another
marriage.
We also find no legal support for defendant's argument that
plaintiff's reduced living expenses due to living with her
parents, should be counted as "in kind income" for purposes of
child support. The Guidelines define "In-kind Income" as:
The fair-market value of goods, services, or
benefits received in lieu of wages and in
the course of employment shall be included
as gross income if they reduce personal
12 A-0325-13T4
living expenses of the recipient regardless
of whether they are derived from an
employer, self-employment, or the operation
of a business. Examples of in-kind goods,
services and benefits include vehicles,
automobile insurance, free housing, meals,
benefits selected under a cafeteria plan,
memberships, or vacations. Expense
reimbursements are not considered income.
[Child Support Guidelines, Pressler &
Verniero, supra, Appendix IX-B to R. 5:6B at
2652 (emphasis added).]
Here, the value of plaintiff's living arrangement was not
connected to her employment, and thus was not in-kind income
within the meaning of the Child Support Guidelines.
In any event, the trial court found that plaintiff and her
husband were responsible to pay utilities at the house they
share. Although the court found "of little import" the
uncertified letter from plaintiff's parent's claiming plaintiff
and her husband paid rent, the court found any savings were not
sufficient basis to deviate from the Guidelines. "To qualify
for a deviation" from the Guidelines, "a parent must show that
the family's marginal spending on children for all items related
to a consumption category differs from the average family (e.g.,
there are no housing costs)." Child Support Guidelines,
Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at 2631
(emphasis in original). "The fact that a family does not incur
a specific expense in a consumption category is not a basis for
13 A-0325-13T4
a deviation from the child support guidelines." Ibid. (emphasis
in original). Thus, if in the "Housing" consumption category,
plaintiff did not pay "rent" but paid "utilities," ibid.,
"deviation from the Guidelines on this ground was not
appropriate." Tannen v. Tannen,
416 N.J. Super. 248, 278-79
(App. Div. 2010) (overturning deviation where family trust paid
the mortgage and real estate taxes, but the party continued to
pay other housing items), aff’d,
208 N.J. 409 (2011).
In any event, "an award based on the guidelines is assumed
to be the correct amount of child support unless a party proves
to the court that circumstances exist that make a guideline-
based award inappropriate in a specific case." Child Support
Guidelines, Pressler & Verniero, supra, Appendix IX-A to R. 5:6A
at 2625. A trial court may deviate from the Guidelines "only
where good cause is shown," and "the determination of good cause
shall be within the sound discretion of the court." R. 5:6A.
The trial court did not abuse its discretion here.
IV.
We also affirm the trial court's decision to grant
plaintiff $1000 towards her legal fees. A court may, in its
discretion, order one party to pay the legal fees for another
party in family actions.
N.J.S.A. 2A:34-23; R. 4:42-9(a)(1); R.
5:3-5(c). Here, plaintiff requested that defendant should pay
14 A-0325-13T4
her $1750 counsel fees expended in opposing his motion for
reconsideration. The trial court considered
(1) the financial circumstances of the
parties; (2) the ability of the parties to
pay their own fees or to contribute to the
fees of the other party; (3) the
reasonableness and good faith of the
positions advanced by the parties both
during and prior to trial; (4) the extent of
the fees incurred by both parties; (5) any
fees previously awarded; (6) the amount of
fees previously paid to counsel by each
party; (7) the results obtained; [and] (8)
the degree to which fees were incurred to
enforce existing orders or to compel
discovery[.]
[R. 5:3-5(c).]
Finding that "[d]efendant's assertions were specious and
duplicative," and that he was in "a better financial position"
than plaintiff, the court required him to pay $1000 toward her
counsel fees.
A reviewing court "will disturb a trial court's determination
on counsel fees only on the 'rarest occasion,' and then only
because of clear abuse of discretion." Strahan v. Strahan,
402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer,
141 N.J. 292, 317 (1995)). The trial court did not abuse its
discretion in awarding plaintiff a portion of her fees.
Affirmed.
15 A-0325-13T4
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