KARIN CHRISMAN v. WILLIAM CHRISMAN (2010)

Defendant William M. Chrisman appeals from the Family Part's order of March 18, 2009 that denied his motion for reconsideration of an earlier order entered on January 12.   We have considered the arguments raised in light of the record and applicable legal standards.   We affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion.

Defendant and plaintiff Karin L. Chrisman, n/k/a Karin L. Suter, were married in 1987 and divorced in 2006.   Defendant is the parent of primary residence for the couple's daughter who lives with him in New Orleans.   Plaintiff's child support obligation was set at $64 per week due to the fact that she was declared disabled by the Social Security Administration (SSA) and had a limited income.   While the couple's daughter was a minor, defendant received $821 per month from SSA on her behalf.

In August 2008, defendant moved for modification of plaintiff's child support obligation.   The couple's daughter had turned eighteen in December 2007 and was no longer eligible for SSA assistance.   In addition, defendant alleged that his daughter had enrolled in Tulane University, and he sought contribution from plaintiff for college costs and expenses.   Plaintiff opposed the motion and cross-moved seeking enforcement of provisions of the judgment of divorce regarding equitable distribution of personal property;  an order emancipating the couple's daughter;  and counsel fees.¹  Apparently, in a separate motion, plaintiff also sought an upward modification of her alimony.²

Oral argument on the motion and cross-motion was carried several times for reasons unexplained by the record.   On January 8, 2009, counsel for both parties appeared before the Family Part judge.   After defense counsel synopsized the relief sought by the motion, plaintiff's counsel, who apparently was new to the case, argued that defendant had failed to establish that his daughter was actually enrolled at Tulane and the costs associated with the school.   Plaintiff's counsel further contended that the couple's daughter should be deemed to be emancipated, and that plaintiff was unable to pay any additional child support.   Plaintiff's counsel further noted that defendant was $6000 in arrears on his alimony obligations, after having earlier accrued a $9000 arrearage.

In her decision delivered immediately after oral argument, the judge concluded that defendant had failed to establish a “prima facie” case regarding the payment of college expenses, and, therefore, a plenary hearing pursuant to Newburgh v. Arrigo, 88 N.J. 529, 543 (1982), was not required.   She denied defendant's request without prejudice.   The judge never directly addressed defendant's request for an increase in child support based upon the termination of his daughter's SSA payments.   The judge did, however, indicate that she was accepting the determination made by SSA that plaintiff was “unable to work.”

The judge denied plaintiff's request for a modification of alimony concluding there was no “showing of changed circumstances.”   The judge further ordered that equitable distribution of personal property by “lottery,” as set forth in the judgment of divorce, should take place by April 1.

Turning to plaintiff's request for counsel fees, the judge concluded that defendant had the greater ability to pay given plaintiff's limited financial resources.   In discussing the relative good faith of the applications, the judge determined that defendant was in arrears on his alimony payments, and that he should “have come to the [c]ourt with clean hands, having paid everything he owed ․, and that would have been a good faith position.”   She granted plaintiff's request for attorney's fees pending a certification from counsel.

The order of January 12, 2009 essentially embodied the judge's oral decision.   It denied without prejudice defendant's request for contribution toward college expenses, ordered the personal property “lottery” to take place by April 1, denied plaintiff's request to declare her daughter emancipated, and awarded plaintiff $7417.28 in counsel fees.³

Defendant sought reconsideration and specifically requested oral argument.   He contended that he had presented a prima facie case regarding college expenses by presenting a letter from Tulane's Financial Office listing the costs and the amount of financial aid his daughter would receive.   Further, defendant had certified that his daughter was in fact attending Tulane.   Defense counsel certified that he believed the judge intended to conduct a hearing at which defendant could testify by phone from Louisiana and was, therefore, surprised when the judge concluded a prima facie case was lacking.

Defense counsel further certified that defendant was not in arrears on his alimony payments as represented by plaintiff's counsel during the January hearing.   Additionally, defense counsel noted that the judge did not address defendant's request for an upward modification of child support other than to accept the fact that plaintiff was still disabled.

Defendant also contended that the personal property “lottery” was impractical since more than two and one-half years had elapsed since the judgment of divorce had been entered.   Lastly, defendant argued that the grant of counsel fees to plaintiff was improper.

The motion for reconsideration was also supported by defendant's certification, to which various exhibits were attached, including:  earnings statements that documented garnishment of defendant's alimony payments;  his daughter's enrollment verification from Tulane;  her class schedule and grades;  and copies of checks and credit card statements of payments he made to the university.   Also attached was a letter from the New Orleans City Attorney documenting that the city had erroneously forwarded checks reflecting garnishment of defendant's salary to the “New Jersey Higher Education Student Assistance Authority,” and that the mistake was not detected for several months.

Plaintiff opposed the motion for reconsideration and cross-moved for other relief;  she, too, sought oral argument.   She noted that much of the financial information regarding her daughter's enrollment at Tulane was available to defendant at the time the original motion was filed.   She further claimed that the parties' property settlement agreement did not require her to contribute to college expenses, and that she was never consulted about her daughter's college choice.⁴  Plaintiff contended that the personal property “lottery” should occur as required by the judgment of divorce, and that the award of counsel fees was appropriate.   Additionally, plaintiff sought counsel fees incurred in responding to the motion for reconsideration, and an order permitting her to resume the use of her maiden name.

The judge issued a written memorandum decision that does not address the parties' requests for oral argument.   She concluded that defendant had not met the standard contained in Rule 4:49-2, i.e., he had “not proffered any controlling decision to demonstrate [that] the court overlooked an issue or otherwise erred in its decision.”   The judge further determined that defendant's new evidence was available at the time the original motion was filed but simply was not produced.   Notably, the judge never addressed defendant's proofs regarding his alimony payments.

Regarding plaintiff's cross-motion, the judge ordered that the personal property lottery take place by April 24;  that defendant pay the previously-awarded counsel fees by June 1;  and that plaintiff could resume the use of her maiden name.   She denied plaintiff's request for additional counsel fees.   An order reflecting these decisions was entered on March 18, and this appeal followed.

In large part, in his pro se brief, defendant argues that the judge's conclusions were based upon a misrepresentation regarding his alimony arrearages.   We agree that the issue of defendant's compliance with his alimony obligations permeated the initial proceedings, and, furthermore, that the judge never addressed the issue on reconsideration.   We conclude, therefore, that reversal is warranted in some respects, and that a limited remand is necessary.

“Reconsideration is a matter to be exercised in the trial court's sound discretion.”  Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J.Super. 299, 310 (App.Div.) (citing Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 257 (App.Div.1987), certif. denied, 110 N.J. 196 (1988)), certif. denied, 195 N.J. 521 (2008).   We have said:

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which 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[.]

[Cummings v. Bahr, 295 N.J.Super. 374, 384 (App.Div.1996) (quoting D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch. Div.1990)).]

“A motion for reconsideration is designed to seek review of an order based on the evidence before the court on the initial motion, ․ not to serve as a vehicle to introduce new evidence in order to cure an inadequacy in the motion record.”  Capital Fin. Co., supra, 398 N.J.Super. at 310 (citing Cummings, supra, 295 N.J.Super. at 384).   We apply these standards to the specific issues presented in the case at hand.

First, we affirm the motion judge's denial of defendant's request for contribution toward his daughter's college expenses.   In Newburgh, supra, the Court recognized a “prima facie, but not conclusive,” presumption in favor of emancipation once a child reaches the age of eighteen.  88 N.J. at 543.   The duty of the parent to support the child can continue, however, “where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education.”  Ibid. In that circumstance, the Court identified twelve factors that should be considered to determine the existence and scope of the non-custodial parent's obligation to continue the support.   Id. at 545.

In adopting N.J.S.A. 2A:34-23a, the Legislature “essentially approved those criteria.”  Gac v. Gac, 186 N.J. 535, 543 (2006).   The event that triggers the court's obligation to conduct a plenary hearing under Newburgh supra, and its progeny, however, is the child's continued enrollment in school beyond the presumptive age of emancipation 88 N.J. at 543.   Or, alternatively,

[A] parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred.   As soon as practical, the parent or child should communicate with the other parent concerning the many issues inherent in selecting a college.   At a minimum, a parent or child seeking contribution should initiate the application to the court before the expenses are incurred.   The failure to do so will weigh heavily against the grant of a future application.

[Id. at 546-47.]

As noted, the original motion for contribution was supported by defendant's certification that his daughter was enrolled at Tulane and some document from the university regarding the anticipated costs and financial aid.   The motion judge concluded that defendant failed to establish his daughter was in fact enrolled and incurring the expenses.

We have not been supplied with the actual documents supporting defendant's initial request;  we therefore defer to the determination made by the motion judge in this regard.   Since defendant failed to establish that his daughter was actually enrolled in school, he was not entitled to a plenary hearing, and the motion judge correctly denied his request without prejudice.   Defendant's motion for reconsideration in this regard was also properly denied because he sought to cure an inadequacy in the record that existed at the time the original motion was heard by supplying the court with additional documentation.  Capital Fin. Co., supra, 398 N.J.Super. at 310.

We also affirm that portion of the order denying reconsideration of the prior order's equitable distribution of personal property by way of a “lottery.”   Defendant presented no basis for the motion judge to reconsider her original order.   Additionally, as already noted, we have not been provided with the final judgment of divorce which incorporated this procedure and, therefore, can conduct no meaningful review.

We reverse and remand the matter to the Family Part, however, regarding two other issues.   First, defendant sought an upward modification of plaintiff's child support obligation based upon a change in circumstances, i.e., the discontinuation of SSA benefits to his daughter.   When the original motion was considered, the judge did not directly address the issue;  instead, she merely confirmed that plaintiff remained disabled and was essentially receiving her SSD payments and alimony as income.   In the written statement of reasons that accompanied the denial of defendant's motion for reconsideration, the judge did not address the issue at all.

In short, we conclude that the judge “did not consider, or failed to appreciate the significance of probative, competent evidence,” Cummings, 295 N.J.Super. at 384, and reconsideration was appropriate.   We remand the matter so that the judge may consider whether defendant is entitled to a modification of child support.   We fully recognize that complete resolution of the issue may only occur in the context of defendant's request for contribution toward college expenses and after consideration of the terms of the final judgment of divorce.   We leave the conduct of the proceedings to the sound discretion of the judge.

We also remand the matter for reconsideration of the counsel fees award to plaintiff.   The award of counsel fees in a matrimonial action rests in the sound discretion of the court.  Addesa v. Addesa, 392 N.J.Super. 58, 78 (App.Div.2007).   That discretion is to be exercised by careful consideration of the factors set forth in Rule 5:3-5(c).

Here, the motion judge awarded plaintiff counsel fees, in large part, based upon her belief that defendant was again in arrears on his alimony payments, and, thus, evidenced a lack of good faith in bringing the motion.   Defendant's motion for reconsideration included significant documentary evidence that demonstrated monies had been garnished from his wages, and that the failure to apply those monies to his probation account was the fault of his employer, the City of New Orleans.   This information was not furnished at the time of the original motion because the issue was apparently not before the judge until it was raised by plaintiff's counsel at oral argument.⁵  Up until that point, defense counsel was under the impression that there were no alimony arrearages.

Under the circumstances, defendant had, at the least, raised a colorable claim that the judge's award of counsel fees was “palpably incorrect,” Cummings, supra, 295 N.J.Super. at 384, because it was based upon the erroneous conclusion that defendant was willfully in arrears on his alimony payments.   The judge did not address the issue at all in her written decision on the motion for reconsideration.   We therefore remand the matter so that the judge may consider defendant's proofs in this regard, and reconsider the award of counsel fees to plaintiff.

Affirmed in part, reversed in part, and remanded.   We do not retain jurisdiction.⁶

FOOTNOTES

FN1. The judgment of divorce is not in the record..  FN1. The judgment of divorce is not in the record.

FN2. The record does not contain the supporting papers regarding defendant's motion or plaintiff's cross-motion.   We have gleaned from the transcript of subsequent proceedings, and the certifications filed in support of defendant's motion for reconsideration and plaintiff's opposition that are in the record, the nature of the relief initially sought by both..  FN2. The record does not contain the supporting papers regarding defendant's motion or plaintiff's cross-motion.   We have gleaned from the transcript of subsequent proceedings, and the certifications filed in support of defendant's motion for reconsideration and plaintiff's opposition that are in the record, the nature of the relief initially sought by both.

FN3. The order also denied “[d]efendant's request for a modification of alimony․”  This was an apparent clerical error..  FN3. The order also denied “[d]efendant's request for a modification of alimony․”  This was an apparent clerical error.

FN4. The property settlement agreement is not in the record..  FN4. The property settlement agreement is not in the record.

FN5. We attribute no ill motive to plaintiff's counsel.   Since defendant's alimony payments may have been misdirected by his employer, we assume it was possible for counsel to have mistakenly reported in good faith the existence of arrears..  FN5. We attribute no ill motive to plaintiff's counsel.   Since defendant's alimony payments may have been misdirected by his employer, we assume it was possible for counsel to have mistakenly reported in good faith the existence of arrears.

FN6. We reserved decision on defendant's motion to strike portions of plaintiff's brief.   We deny the motion since the alleged objectional portions were immaterial to our consideration of the issues presented..  FN6. We reserved decision on defendant's motion to strike portions of plaintiff's brief.   We deny the motion since the alleged objectional portions were immaterial to our consideration of the issues presented.

PER CURIAM