Opinion
DOCKET NO. A-0707-13T4
01-26-2015
S.W., Plaintiff-Respondent, v. W.B., Defendant-Appellant.
W.B., appellant pro se. S.W., respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Family Division, Monmouth County, Docket No. FM-13-165-07. W.B., appellant pro se. S.W., respondent pro se. PER CURIAM
Defendant W.B. appeals from an August 28, 2013 order of the Family Part denying his motion for reconsideration of previous orders pertaining to the parties' reimbursement obligations for extra-curricular activity expenses for their children. We affirm, except that we reverse and remand for further consideration of one issue.
Our review is hampered by defendant's confusing and unnecessarily long brief and the generally unhelpful responding brief filed by plaintiff S.W. Also, while the appendix filed by defendant contains many documents from the Family Part's file, defendant's brief does not direct the reader to the appropriate pages of the appendix, and some parts of the necessary record are not included in the appendix. Since it is appellant's responsibility to provide an adequate record for our review, see Rules 2:5-3, 5-4, 6-1, the failure to match defendant's arguments with the record undermines his appeal.
Our knowledge of the relevant facts is imprecise. The parties married in 1998, two daughters were born to the marriage, and the parties divorced in 2009. Their dual final judgment of divorce incorporated a Property Settlement and Support Agreement that is not fully reproduced in the appendix. The custody and child support provisions of the agreement are not included, but it appears that the parties agreed to equal parenting time, alternating a week with each parent. As best as we can decipher the record, defendant was required to pay a minimal amount of child support to plaintiff, although his income was slightly less than hers, the purpose of the child support being to pay for his share of health insurance costs for the children.
We do have in our record the provision of the settlement agreement that is at the heart of the parties' repeated post-divorce disputes about sharing in the costs of the girls' extra- curricular and similar activities. The agreement required defendant to pay 48% and plaintiff 52% of the costs of extra-curricular activities. The agreement also states: "The parties shall discuss the cost of any activity and only agreed upon activities shall be so divided. Neither party shall enroll the children into an activity without discussing same and obtaining agreement from the other party."
Since the divorce, the parties have repeatedly litigated over the application and enforcement of these provisions. They have filed numerous motions, often overlapping motions filed before previous ones have been heard and decided. The two transcripts of oral argument before the Family Part that have been provided to us demonstrate a disturbing lack of insight, mature judgment, and courtroom decorum by the parties.
It seems, however, that plaintiff's unilateral decision to move to a different county and thus upset the shared parenting arrangement has exacerbated the disagreements about extra-curricular activities. During the time pertinent to this appeal, the major dispute that engaged the Family Part's attention was plaintiff's move out of Monmouth County, where the marital home was located and where the children attend school, to a new home in Union County. The children's time became split between two counties that are an inconvenient distance apart.
In addition, plaintiff and defendant have different approaches to the children's activities that require significant expenditure. Plaintiff is liberal and accommodating in allowing the girls to enroll in costly activities. Defendant tries to maintain a strict budget. Plaintiff complains that defendant digs in his heels on just about anything that she seeks to do with the children. She has found it virtually impossible to get his cooperation. Frustrated, she has filed motions to enforce the reimbursement provisions of the divorce judgment. For his part, defendant has filed motions to compel her to obtain his approval before embarking on an activity that requires him to pay. Much of the quarreling is fueled by his resentment at having to spend many hours driving one of the girls to activities in Union County, and by plaintiff's desire also to transfer the second girl's activities out of Monmouth County.
Superimposed over the disputes and post-divorce litigation are a pair of domestic violence restraining orders the two have obtained against each other. These orders make communication even more difficult, although the parties are permitted to communicate by email or text messaging about the children.
Specifically regarding the facts and procedural history pertinent to this appeal, defendant contends that, between September and December 2012, both parties filed a total of six motions. These motions were disposed of together by an order dated December 21, 2012. Among other relief, the order required that defendant reimburse plaintiff $1,245 for his share of past expenses for the children's extra-curricular activities. Defendant claims he was surprised by the inclusion of this provision because plaintiff never served him with a motion seeking that amount.
Defendant took timely action to determine what led to the inclusion of the $1,245 reimbursement provision. On January 2, 2013, he requested from the court the motion papers to determine the source of that provision. He was advised that the file was stored off-site and it would take at least two weeks to be retrieved. He also sought a stay of the December 21, 2012 order so that he would not be bound by its requirement that he pay the amount ordered within seven days. A different Family Part judge denied a stay on the ground that the matter did not require emergent relief.
Upon receipt of the court's file, defendant found a motion plaintiff filed dated October 22, 2012, and a certification of service stating that the motion was personally served on him by courier service. On January 24, 2013, defendant filed a motion to vacate the December 21, 2012 order on the ground that he had not been served with the motion that resulted in the $1,245 reimbursement directive. Plaintiff filed a cross-motion that sought enforcement of the December 21, 2012 order.
On February 19, 2013, defendant filed another motion, this time seeking reimbursement for extra-curricular activities he had paid throughout the time after the divorce from 2009 to 2012.
Yet a third Family Part judge heard oral argument on the January and February motions on May 20, 2013, and she entered an order the following day disposing of all the pending motions. The May 21, 2013 order granted and denied some of each party's requests for reimbursement. For example, the order denied defendant's request for reimbursement for the years before 2012 but granted him some reimbursement for 2012 expenses. After netting the results, the order required defendant to pay plaintiff $1,551.64 for extra-curricular activities.
With respect to defendant's claim that he had not been served with plaintiff's October 22, 2012 motion, the order stated:
Because defendant's notice of motion for reconsideration was served 20 days after his receipt of [the] December 21, 2012 Order, this Court has no jurisdiction to rule on defendant's untimely filed motion for reconsideration. Neither the parties nor this Court may "enlarge the time specified by R. 4:49-2." . . . After the expiration of the 20 day time period, defendant's only
other recourse was to file a Notice of Appeal . . . .
On June 7, 2013, defendant filed a motion for reconsideration. In addition to requesting again that the court vacate the December 21, 2012 order, defendant sought various relief including reimbursement for piano lessons and summer expenses of the girls. In response, plaintiff filed a motion seeking permission to enroll the children in school in Union County. The oral argument heard on August 28, 2013, dealt mostly with the school issue.
The Family Part denied plaintiff's request to enroll the girls in a school in Union County. The court's August 28, 2013 order also denied defendant's motion for reconsideration, and his request for reimbursement of additional expenses.
In addition, the court attempted to head off future motion filings with a practical solution. After extensive discussion of the anticipated expenses of the children, the court ordered that defendant pay $50 per week child support through the Probation Department, effective as of June 7, 2013, and that, in accordance with the parties' agreement, the child support would "satisfy defendant's share of the children's extra-curricular activities, cellular phones expenses, health insurance, and unreimbursed medical expenses, going forward."
Not satisfied, defendant filed a notice of appeal from the August 28, 2013 order, but also referenced the May 21, 2013 order. In his brief on appeal, he presents the following six arguments:
Point 1 — The Order requiring the defendant to pay the plaintiff $1,245.00 should be vacated based upon the failure of the Plaintiff to serve the Defendant, enabling the Defendant to oppose the claim.
Point 2 — The Order requiring the defendant to pay the plaintiff $439.25 should be vacated based upon the failure of the Plaintiff to serve the Defendant, enabling the Defendant to oppose the claim.
Point 3 — The May 21, 2013 Order requiring the defendant to pay the plaintiff $1,388.16 is a typo and should be $1,245.00.
Point 4 — The Plaintiff must pay the defendant $359.50 equaling 52% of the child expenses for piano lessons.
Point 5 — The Defendant should be reimbursed by the plaintiff for Child expenses incurred for summer activities.
Point 6 — Child Expenses submitted by the parties must be mutually agreed upon as dictated by the terms of the DJoD. Child expenses must be mutually agreed upon going forward.
The standard of review for a trial court's decision to deny a motion for reconsideration is whether it abused its discretion. Fusco v. Newark Bd. of Educ, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). "Reconsideration should be used only for those cases . . . [where] either (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, competent evidence." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A motion for reconsideration should be granted only "under very narrow circumstances." Ibid.
Defendant argues that the Family Part abused its discretion by treating his motion to vacate the December 21, 2012 order as an untimely motion for reconsideration. We agree that the court mistakenly viewed that part of defendant's January 24, 2013 motion as a motion for reconsideration. Defendant sought to vacate the December 21, 2012 order because he was not served with the motion that resulted in the provision of that order requiring him to pay plaintiff $1,245. The court should have treated the motion as one to vacate the prior order on due process grounds and considered the merits of defendant's lack-of-service argument.
A party is entitled to receive service of the motion papers that result in an order of the court. See H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003). Our Supreme Court has stated that "[a]t a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" Ibid. (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)).
Service of post-judgment motion papers is governed by Rules 1:5-1(a), 1:5-2, and 1:5-4(a). Youssefi v. Youssefi, 328 N.J. Super. 12, 23 (App. Div. 2000). Written motions must be served upon parties appearing pro se, unless otherwise provided by Rule or court order. R. 1:5-1(a). Service upon a pro se party shall be made either as provided by Rule 4:4-4 or by registered and certified mail. R. 1:5-2.
We cannot tell from our record whether defendant was actually served with plaintiff's October 22, 2012 motion. The certification of service signed by plaintiff and attached to the motion indicates defendant was served by courier at his address in Morganville. In contrast, an affidavit of service signed by the person who served the motion states that he personally served defendant at an address in Westfield that corresponds to plaintiff's home, not defendant's home. At least one of the two documents is wrong. In its May 21, 2013 decision and order, the Family Part never addressed the question of whether defendant was actually served or not. It should have done so rather than viewed defendant's motion as a motion for reconsideration.
If in fact defendant was not properly served, the question still remains whether he has viable opposition to plaintiff's motion for reimbursement of expenses in the amount of $1,245. If he does not, there is no reason for the court to vacate the prior order. Only if there was no service of the motion and defendant has potentially meritorious opposition should the court vacate that provision of the December 21, 2012 order and conduct further proceedings to determine whether plaintiff is or is not entitled to reimbursement of $1,245. A remand is required for the Family Part to make these determinations.
We have considered defendant's five other points of argument and generally find them to be without sufficient merit to warrant full discussion in a written opinion. See R. 2:11-3(e)(1)(E). We comment briefly as to each point.
With respect to the requirement that defendant reimburse plaintiff $439.25, we do not have an adequate record to determine whether defendant was in fact served with the relevant motion. We cannot follow defendant's argument, in part because neither the amount nor the date of a motion he references matches documents in our record.
Defendant argues next that the Family Part erred by listing an incorrect amount in the May 21, 2013 order, $1,388.16 instead of $1,245. It appears, however, that the figure used by the court was the result of the addition and subtraction of amounts owed by each party to the other and was adjusted since the time of the December 21, 2012 order requiring that defendant pay $1,245.
Defendant's next two arguments pertain to reimbursement to him of $359.50 for piano lessons and an additional amount for expenses of the girls' summer activities while they were with him. We see no abuse of discretion in the Family Part's rulings. Regarding reimbursement for piano lessons for one daughter, the May 21, 2013 order states that the money owed to defendant "includ[es] piano lessons."
Regarding summer expenses, the nature and the date of the expenses are relevant to whether defendant is entitled to be reimbursed. The property settlement agreement provides that each party may be reimbursed for "[t]he cost of mutually agreed upon extra-curricular activities, including . . . summer camp for the children . . . ." Defendant seeks reimbursement of summer recreational expenses, which appear to consist largely of trips to an amusement park. His description of that activity as a substitute for summer camp does not make it reimbursable.
We also see no abuse of discretion in the Family Part's refusing to order reimbursement of defendant for expenses prior to 2012. Defendant argues that a different judge previously granted reimbursement to plaintiff for similar older bills. Assuming that is true, the third judge on the case did not abuse her discretion in setting limits to how far back she would go in addressing a motion for reimbursement.
Finally, defendant asks the court to require that all expenses going forward be mutually agreed upon. The August 28, 2013 order moots much of the issue by setting a fixed amount that defendant must pay each week, that amount covering his obligation for many of the routine extra-curricular and similar expenses. The court left intact the sharing provision of the property settlement agreement with respect to major additional expenses of the children. The agreement as incorporated in the dual final judgment of divorce already requires the parties to reach agreement on such expenses. That judgment remains in effect and was not altered by the Family Part.
The orders from which defendant appeals are affirmed, except that the matter is remanded to the Family Part to determine whether defendant should be required to reimburse plaintiff $1,245 as directed by the court's order of December 21, 2012. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION