Opinion
DOCKET NO. A-0325-13T4
08-04-2015
JENNIFER L. GRACE, n/k/a JENNIFER LAWRENCE, Plaintiff-Respondent, v. GARY GRACE, Defendant-Appellant.
Gary Grace, appellant pro se. Dolcy Law Firm, attorneys for respondent (Colleen M. Dolcy, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone.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. 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.
Defendant, who resides in Colorado, allegedly has not exercised such visitation.
The parties mention a 2006 motion filed by defendant to reduce his child support obligations, which apparently was denied. --------
In late 2012, plaintiff received a notice from the Ocean County Board of Social Services (OCBSS), stating that she was 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 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 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.
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 & 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 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 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 [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 resolution 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 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, 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 personalHere, 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.
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).]
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 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 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[.]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.
[R. 5:3-5(c).]
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. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION