Opinion
DOCKET NO. A-0545-10T4
08-18-2011
JOANN WEROSTA, Plaintiff-Appellant, v. KARL R. WEROSTA, Defendant-Respondent.
Charles J. Casale, Jr., P.A., attorneys for appellant (Elizabeth H. Foster, on the brief). Archer & Greiner, attorneys for respondent (Jennie A. Owens, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Nugent.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-445-06.
Charles J. Casale, Jr., P.A., attorneys for appellant (Elizabeth H. Foster, on the brief).
Archer & Greiner, attorneys for respondent (Jennie A. Owens, of counsel and on the brief). PER CURIAM
Plaintiff Joann Werosta appeals from an August 16, 2010 order denying her motion for reconsideration of a June 14, 2010 order, which decreased by more than one half the child support payable to her by defendant Karl Werosta. The court marked the June 14 order unopposed because Joann's attorney filed her opposition papers late and the court did not consider them. The June 14 order also directed Joann to reimburse Karl for a portion of the children's extracurricular activities, and it awarded Karl attorney's fees.
For ease of reference and understanding, and meaning no disrespect, we will refer to the parties by their first names.
Joann's motion for reconsideration included documented evidence that the court had miscalculated Karl's income by about $47,000. It showed that the correct income figures were not a matter of dispute but were already contained in Karl's tax returns and case information statement (CIS). The trial court declined to review the merits of Joann's motion for reconsideration and to recalculate child support. We reverse.
Joann and Karl were married in 1995 and divorced in 2006. They have three sons, currently from twelve to fifteen years old. Their property settlement agreement, which was incorporated into the final judgment of divorce, established terms of custody and parenting time in accordance with a consent order granting the parties joint legal custody and designating Joann the parent of primary residence. Karl was granted parenting time every other weekend and two evenings during the week without overnights. The property settlement agreement set child support at $1,720 per month, specifically stating that the parties had agreed to deviate from the child support guidelines. See Pressler & Verniero Current N.J. Court Rules, Appendix IX to Rule 5:6A (2011).
The parties engaged in further litigation after entry of the divorce judgment, typically pertaining to parenting time, child support, and other financial disputes. By an order dated November 5, 2008, the court directed that child support be recalculated because Karl had not exercised overnight parenting time since the time of the divorce. Instead of proceeding to a child support hearing, however, the parties entered into an agreement on March 5, 2009, increasing Karl's child support payments to $2,600 per month.
In the summer of 2009, Joann filed a pro se motion to enforce the agreement, and Karl filed a cross-motion for other relief pertaining to the children and financial disputes. On September 25, 2009, the court entered an order enforcing Karl's child support obligation and also entitling Joann to reimbursement from Karl of sixty percent of expenses for extracurricular activities of the children after she paid the first $250 per year for each child. The September 25, 2009 order made specific reference to the oldest son's hockey league expenses and stated that costs of extracurricular activities beyond $250 were "extraordinary expenses that should be shared."
In April 2010, Karl filed a motion to reduce his child support obligation and to enforce the September 25, 2009 order, seeking $870 from Joann for their oldest son's hockey expenses in addition to other relief. Joann retained the services of an attorney, but the attorney did not submit opposition until one day before the return date of Karl's motion, June 4, 2010. The court declined to consider the opposition papers and granted Karl's motion in its entirety as unopposed. The court's June 4, 2010 order was later corrected on June 14, 2010 only as to a clerical error.
The order is actually dated June 7, 2010, but is stamped by the court clerk as filed on June 4, 2010.
The June orders reduced Karl's child support obligation from $2,600 to $1,208 per month, based on changed circumstances in that Karl had a new child by his second marriage. To arrive at that figure, the court applied the child support guidelines, setting Karl's income on a worksheet at $2,614 per week, which is equivalent to yearly income of approximately $136,000. The June orders also directed Joann to reimburse Karl within thirty days $1,064 for extracurricular activities and $2,000 in attorney's fees for Karl's motion.
Joann retained new counsel and promptly filed a motion for reconsideration. She asserted that the court had mistakenly determined Karl's income, neglecting to include $46,838 in rental income shown on his 2009 federal income tax return and also on his CIS. She also stated that the court had not considered a CIS from her, which would show that she cannot afford to support the children on the lower child support ordered or to pay for expensive extracurricular activities that Karl can afford and chooses for the boys, in particular, a hockey team that travels out of state and requires overnight stays in hotels funded by the parents.
The court declined to hear oral argument on the motion for reconsideration, citing as justification our recent decision in Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010). Its August 16, 2010 order denying Joann's motion includes the following statement of reasons:
The Plaintiff's motion is denied in its entirety. The sufficiency of the facts asserted relating to reasons why the Plaintiff or her counsel failed to respond to the Defendant's motion, which was thereby rendered unopposed and uncontested, is deficient factually to constitute a substantive issue requiring argument or meet the requirements of N.J. Court Rules R. 4:49-2 demonstrating that the Court acted in an arbitrary, capricious, or unreasonable manner in deciding the prior motion which was primarily one of enforcement.Joann filed a notice of appeal from the August 16, 2010 order.
Karl's brief on appeal relies on a technical argument; it attempts to limit our review to whether the trial court erred as a matter of procedure in denying Joann's motion for reconsideration, and not whether the June orders correctly determined Karl's child support obligation. Karl cites language in Palombi, supra, 414 N.J. Super. at 289, which in turn cites a reference in D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), to the arbitrary, capricious, and unreasonable standard as applicable to whether reconsideration should be granted.
We begin by reconfirming that our standard of review from the court's August 16, 2010 order is whether the court abused its discretion in denying reconsideration on the merits of the issues raised. See Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996); Palombi, supra, 414 N.J. Super. at 288. Inserting into the argument the arbitrary, capricious, or unreasonable language as the standard of review unnecessarily convolutes the well-established scope of appellate review.
Furthermore, our review requires that we consider Joann's arguments as to whether the June 14, 2010 order was based on clear error as to the child support Karl should pay in accordance with child support guidelines. Although Joann's notice of appeal does not specify that she is appealing from the June orders, see W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008), her appellate case information statement filed in accordance with Rule 2:5-1(f) refers to the June orders. See Ahammed v. Logandro, 394 N.J. Super. 179, 187-88 (App. Div. 2007). Moreover, the merits of her reconsideration motion are closely intertwined with the merits of the underlying June orders, and the two cannot be logically separated. Cf. Fusco v. Newark Bd. of Educ, 349 N.J. Super. 455, 461 (App. Div.) ("in some cases a motion for reconsideration may implicate the substantive issues in the case"), certif. denied, 174 N.J. 544 (2002). We have jurisdiction to consider legal error in the June orders as part of our review of the August 16, 2010 order.
The record of the several motions leads us to conclude that the trial court mistakenly exercised its discretion in declining to consider the substance and merit of Joann's motion for reconsideration. See Rubin v. Rubin, 188 N.J. Super. 155 (App. Div. 1982). Her motion showed unmistakably that the court had erred in calculating child support. The child support worksheet attached to the court's June orders is based on gross weekly income for Karl of $2,614. Karl's CIS and tax returns, however, revealed that his income in 2009 was at least $182,741, which is approximately $3,514 per week.
The $182,741 figure is the sum of Karl's federally declared salary of $135,903 plus rental income of $46,838 shown on his federal tax return. Karl's New Jersey income tax return shows $52,494 as a partnership distribution in place of the rental income, thus totaling $188,397 in earned and unearned income. In his April 23, 2010 CIS, Karl declared 2009 earned income of $135,903 and unearned income of $47,946, which totals $183,849. Thus, the $182,741, or $3,514 per week, appears to be the lowest potentially correct figure for Karl's income that the child support worksheet should have used.
In addition to the error on Karl's income, the court recalculated child support based on changed circumstances in accordance with Lepis v. Lepis, 83 N.J. 139 (1980), but without the benefit of financial information from Joann. Rule 5:5-4(a) provides that, on a motion for modification of child support where the moving party has presented a prima facie showing of changed circumstances, "the court will order the other party to file a copy of a current case information statement." Here, although Joann had not filed timely opposition before the June 4, 2010 return date of Karl's motion, the court was aware at least as of June 3rd that she was attempting to file opposition. The court should have followed the requirements of the rule to ensure that it had proper financial information from both parties before entering its June order modifying child support as unopposed.
The court's inflexible view of deadlines and the standard for reconsideration resulted in an incorrect child support order. Although enforcement of procedural rules is important in efficiently conducting litigation, the goal of the court must remain fair and just determination of issues in dispute. We have previously expressed our view regarding the proper exercise of discretion where submissions are late but nevertheless available before the court must make a final decision on the merits of a significant matter. See Tyler v. N.J. Auto Full Ins., 228 N.J. Super. 463, 468 (App. Div. 1988) ("It is a mistaken exercise of judgment to close the courtroom doors to a litigant whose opposition papers are late but are in the court's hands before the return day for a motion which determines the meritorious outcome of a consequential lawsuit."). In the circumstances shown by this record, the court's response to the late filing should have been potential sanctions other than refusing to consider Joann's opposition or motion for reconsideration. See ibid.
The court's objective is to "dispens[e] substantial justice on the merits" when it can do so. Rubin, supra, 188 N.J. Super. at 160. Especially because the disputed issue involved child support, see ibid., the court should have acknowledged the error of the prior calculation when it received Joann's motion for reconsideration and determined Karl's child support obligation anew using accurate income figures. In that regard, we also note that the court incorrectly described Karl's motion as "primarily one of enforcement." The most significant effect of the June orders was a major reduction of Karl's child support obligation.
Since this matter must be remanded for retroactive recalculation of child support, we comment briefly on another aspect of the June orders. In their property settlement agreement, the parties did not make any provision for reimbursement for extracurricular activities of the children. The court's order of September 25, 2009, required that the parties share in those expenses when they exceed $250 per child per year. That order, however, made no finding or other provision for determining whether particular extracurricular activities are appropriate for the children, or how potential disputes about the cost might be resolved.
A divorced parent is not bound indefinitely to pay the costs of all extracurricular activities that the other parent chooses for the children. Neither parent may unreasonably withhold agreement, but where an activity is unusually costly or inappropriate for other reasons, and it is not unreasonable for a parent to disapprove the expense or activity, the parent who nevertheless insists on that activity should bear the cost.
Here, Karl's April 2010 motion sought $870 from Joann for their oldest son's traveling hockey team expenses. Joann states she simply cannot afford that kind of expense on her limited income. When recalculating child support, the trial court should also consider and resolve the parties' dispute regarding each parent's obligation to pay for extraordinary expenses of the children's activities, such as for a traveling hockey team.
Lastly, we leave it to the court's discretion on remand to determine whether it appropriately awarded Karl attorney's fees for his prior motion.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION