SHARON MILLER GROMEK VS. VITOLD F. GROMEK (FM-14-0006-10, MORRIS COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1494-15T1
SHARON MILLER GROMEK,
Plaintiff-Respondent,
v.
VITOLD F. GROMEK,
Defendant-Appellant.
_________________________________
Argued May 22, 2018 – Decided June 5, 2018
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0006-10.
Vitold F. Gromek, appellant pro se.
Respondent Sharon Miller Gromek has not filed
a brief.
PER CURIAM
Defendant Vitold F. Gromek appeals from an October 27, 2015
order, which denied his motion for relief from a December 10, 2014
order entered following a plenary hearing addressing alimony,
child support, college contribution, and attorney's fees. We
affirm.
We glean the following facts from the record. The parties
were married in 1982. Two children were born of the marriage,
both of whom are now emancipated. The parties divorced in 1999
following a three-day trial. Defendant appealed from the trial
judge's decision, and we remanded in part for the trial judge to
address certain aspects of the alimony computation, equitable
distribution, and counsel fees. Gromek v. Gromek, No. A-0480-99
(App. Div. Jan. 17, 2002); Gromek v. Gromek, No. A-6302-99 (App.
Div. Jan. 17, 2002).
The trial judge made findings on the remanded issues, and
defendant appealed. We affirmed in part, and reversed and remanded
in part the trial judge's determination. Gromek v. Gromek, No.
A-4825-03 (App. Div. Oct. 27, 2005). Pertinent to the present
appeal, in our remand we: established the budget for plaintiff on
which the trial judge was again directed to calculate alimony and
child support; directed probation to credit defendant's account
in the event the support recalculation on remand resulted in excess
payment of support; addressed credits to defendant against
equitable distribution of the parties' Nantucket residence; and
awarded plaintiff counsel fees from defendant's share of equitable
distribution of the residence.
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These issues, which were remanded in 2005, were subject to a
trial before a different judge who also adjudicated other post-
judgment matters, including defendant's request to: terminate
child support, terminate or reduce alimony, and reduce or eliminate
his obligation to contribute to the children's college costs.
Subsequent to our remand, the judge entered two preliminary orders
dated November 4, 2011, adjudicating alimony, child support, and
reimbursements from the Nantucket property. Defendant sought
reconsideration, which the judge granted in part in an order dated
February 2, 2012.
The trial judge also entered a separate order on February 22,
2013, addressing defendant's motion for reconsideration of the
judge's rulings regarding child support and the dispute over
probation's calculation of defendant's arrears. Defendant sought
reconsideration of this order, which the judge denied on August
14, 2013. The judge found defendant had advanced no legitimate
basis to grant reconsideration. The judge also noted a plenary
hearing had been scheduled to address the dispute.
Eventually, a fourteen-day trial ensued, which resulted in
the entry of a final order on December 10, 2014. The trial judge
determined the parties' children were emancipated as of January
1, 2012, and terminated defendant's child support obligation as
of that date. The judge denied defendant's motion to terminate
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alimony, but reduced his alimony obligation from $600 to $498 per
week, effective June 1, 2012. The judge found defendant was
responsible for fifty percent of the children's undergraduate
college costs, and fifty percent of the payments plaintiff
previously made for those costs. The judge awarded plaintiff
$131,865.45 in counsel fees and costs. Defendant appealed from
the December 10, 2014 order, but it was dismissed for failure to
perfect the appeal. Gromek v. Gromek, No. A-3067-14 (App. Div.
June 11, 2015).
The parties' motion practice continued, resulting in the
order now under appeal, which addressed forty-seven requests for
relief. Plaintiff's motion largely sought enforcement of the
December 10, 2014 order. Citing Rule 4:50-1, defendant's motion
argued the December 10, 2014 order was "so defective, so replete
with errors, as it relates to child support, attorney fees, and
college expenses that it should be voided and re-litigated." He
also sought reconsideration of the emancipation date for one of
the children, and the counsel fee award. Additionally, as part
of his ongoing disputation of probation's arrears calculation,
defendant sought to compel plaintiff to produce documentation for
all funds she received or had held for her benefit outside of
probation. A different judge heard the motions, and denied
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defendant's requests, noting the relief defendant sought should
have been addressed on appeal. This appeal followed.
I.
We begin with our standard of review. A trial court's
findings "should not be disturbed unless '. . . they are so wholly
insupportable as to result in a denial of justice[.]'" Rova Farms
Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)
(quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App.
Div.), aff'd o.b., 33 N.J. 78 (1960)). When the trial court's
findings are "supported by adequate, substantial and credible
evidence[,]" those findings should be upheld on appeal. Id. at
484.
"[O]ur appellate function is a limited one: we do not disturb
the factual findings and legal conclusions of the trial judge
unless we are convinced that they are so manifestly unsupported
by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice."
Fagliarone v. N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963);
see also Rova Farms, 65 N.J. at 484. The function of this court
is to determine whether there is "substantial evidence in support
of the trial judge's findings and conclusions . . . ." Weiss v.
I. Zapinsky, Inc., 65 N.J. Super. 351, 357 (App. Div. 1961).
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II.
As we noted, defendant styled his motion as one for
reconsideration, but cited Rule 4:50-1, and specifically argued
the December 10, 2014 order was void and generally unjust. Thus,
defendant's argument implicated Rule 4:50-1(d) and (f), which
provide:
On motion, with briefs, and upon such terms
as are just, the court may relieve a party or
the party's legal representative from a final
judgment or order for the following reasons:
. . . (d) the judgment or order is void; . . .
or (f) any other reason justifying relief from
the operation of the judgment or order.
Generally, "[c]ourts should use Rule 4:50-1 sparingly, [and] in
exceptional situations[.]" Hous. Auth. of Morristown v. Little,
135 N.J. 274, 289 (1994). Relief under Rule 4:50-1 "is designed
to reconcile the strong interests in finality of judgments and
judicial efficiency with the equitable notion that courts should
have authority to avoid an unjust result in any given case."
Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n, 74 N.J. 113, 120
(1977) (citing Hodgson v. Applegate, 31 N.J. 29, 43 (1959)).
Under Rule 4:50-1: "No categorization can be made of the
situations which warrant redress under subsection (f). . . . [T]he
very essence of (f) is its capacity for relief in exceptional
situations. And in such exceptional cases its boundaries are as
expansive as the need to achieve equity and justice." DEG, LLC
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v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (alteration in
original) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341
(1966)).
On appeal, defendant again challenges the December 10, 2014
order. He claims the support calculation in it was erroneous
because he experienced a changed circumstance after we remanded
the matter. Specifically, on the remand we directed the trial
judge use $127,465 as defendant's income, and he argues his income
was actually $63,487, and claims the trial judge erred when he
failed to use the lower income figure.
Defendant argues the trial judge failed to calculate child
support using the child support guidelines. He asserts the trial
judge's deviation from the guidelines by eighty-eight dollars per
week to meet plaintiff's needs was arbitrary and capricious.
Defendant argues the trial judge incorrectly calculated taxes on
defendant's income because he used estimated taxes rather than
averaging his actual tax liability. He asserts the trial judge's
guidelines calculation incorrectly calculated the medical
insurance premium, unreimbursed health care expenses, parenting
time adjustment, and plaintiff's income.
Defendant claims the trial judge failed to recognize
plaintiff's case information statements (CISs) were false and
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contained erroneous expenses. Defendant asserts plaintiff failed
to provide CISs for certain years.
Defendant argues the trial judge failed to acknowledge
payments defendant made outside of probation. He claims probation
failed to conduct a court ordered audit to account for the correct
date on which his pendente lite support ended and his post-judgment
support obligation began. Defendant argues he overpaid by $4800,
which was not credited to his arrears. He asserts he provided
probation with the proofs, but it refused to accept them, and the
trial judge failed to compel it to do so. Defendant claims his
share of the sales proceeds from the Nantucket home were not
credited to his arrears. He argues probation failed to record the
fact his support obligation was reduced as a result of a child's
emancipation and the reduction in his alimony obligation.
Defendant asserts the trial judge failed to account for and
differentiate child support from college expenses, which resulted
in defendant paying for certain expenses twice. He argues child
support was not recalculated to account for the children's
residence in college.
Defendant asserts plaintiff incurred invalid costs for
college, which resulted in excessive borrowing, and he should not
have to pay for those costs. He argues the trial judge failed to
account for his ability to pay for college. Defendant claims the
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trial judge erred by not considering defendant's argument he should
be absolved of his obligation to contribute to college because he
was not consulted in the process.
Defendant argues the trial judge erred by not permitting
defendant to submit his claim for counsel fees. He asserts he was
denied fees because he was self-represented. Defendant claims the
trial judge failed to address defendant's application to modify
or terminate alimony based on a prospective retirement pursuant
to N.J.S.A. 2A:34-23(j).
Defendant's arguments are unpersuasive. The motion judge
undertook a detailed review comparing the circumstances and
evidence presented to him with the trial judge's decision, and the
record before the trial judge. The motion judge concluded:
There was a motion for reconsideration, again,
appeals taken. There was a vocational expert
at some point who was retained, Dr. Stein, I
know who posited an income range between
[ninety thousand] and [one hundred and twenty
thousand dollars.] The defendant had some
concern that everybody was focused on the high
end of Dr. Stein's number. And I note also
that the [trial judge] did find that the
defendant had sequestered funds in the name
of his sister or otherwise, and I know that's
a finding that the defendant disagree[s] with.
But all of these issues, the alimony, the
dates of emancipation, the level of college
contribution, all of that was subject, or
would have been subject to [a]ppellate review.
It was subject to application for
reconsideration. And you know, whether it's
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filed five months later, six months later or
seven months later, I really haven’t had
information presented to me such that I could
legitimately say in the interest of justice I
have to do something, a travesty has occurred,
this has to be changed. It can't be allowed
to stand. Recognized and established law was
ignored, or the law has changed, and the
change gave retroactive application to those
changes, none of those things have happened.
Our review of the record leads to the same conclusion. The
trial judge addressed all of defendant's claims regarding alimony,
college contribution and counsel fees, applying the facts to the
relevant factors found in the statute, case law, and court rules.
Therefore, as noted by the motion judge, defendant's remedy was
to appeal the December 10, 2014 decision, rather than present
arguments why he disagreed with the trial decision to the motion
judge, and expect a different outcome pursuant to Rule 4:50-1. As
the motion judge noted, Rule 4:50-1 addresses grounds for
collateral relief from a final order, it does not act as a
substitute for appeal. Defendant's disagreement with the December
10, 2014 order neither demonstrated it was void pursuant to Rule
4:50-1(d) nor established grounds for extraordinary relief under
Rule 4:50-1(f). For these reasons, the motion judge did not abuse
his discretion by declining to re-visit the December 10, 2014
order.
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Furthermore, although defendant is correct neither the
December 10, 2014 nor the October 27, 2015 order addressed his
claim for counsel fees as a self-represented litigant, the reason
is self-evident. The Supreme Court has held a self-represented
litigant may not claim attorney's fees for the litigant's own
efforts prosecuting a case. Segal v. Lynch, 211 N.J. 230, 260-64
(2012). Therefore, neither judge erred by failing to award
defendant counsel fees.
Finally, we have reviewed the balance of defendant's
arguments, including: the calculation of defendant's income and
tax obligations; the trial judge's guidelines calculation;
defendant's claims regarding plaintiff's CIS data; probation's
calculation of arrears; and defendant's claim to a prospective
retirement. The trial judge found these arguments lacked merit,
and based on our review of the record we also find they lack
sufficient merit to warrant further discussion in a written
opinion. Rule 2:11-3(e)(1)(E).
Affirmed.
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