Tiffany Sanchez v. Alejandro Vargas ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3374-22
TIFFANY SANCHEZ,
Plaintiff-Appellant,
v.
ALEJANDRO VARGAS,
Defendant-Respondent.
_________________________
Submitted May 29, 2024 – Decided July 5, 2024
Before Judges Gooden Brown and Puglisi.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-2274-17.
Anthony Scordo, Esq., PC, attorneys for appellant
(Anthony Scordo, on the brief).
Respondent has not filed a brief.
PER CURIAM
In this one-sided appeal, plaintiff Tiffany Sanchez appeals from the
Family Part's June 9, 2023 order that denied her motion for reconsideration of
the May 12, 2023 order denying her motion to enforce a subpoena and awarding
attorneys' fees to defendant Alejandro Vargas, and also denied her request to
depose defendant regarding his income. We affirm.
The parties were previously married and had two children together. Their
January 16, 2018 judgment of divorce incorporated a marital settlement
agreement (MSA). The MSA established defendant's temporary child support
obligation of $1,560 per month, payable directly to plaintiff's landlord for her
rent expenses. The parties agreed to this obligation until June 1, 2018, at which
time child support would be revisited "based on the parenting time and custody
circumstances at that time." Based on the record before us, it does not appear
any subsequent order was entered regarding child support until 2022.
On the parties' competing motions, 1 Judge Andrea J. Sullivan entered an
order on November 29, 2022 reducing defendant's obligation to $132 per week.
The reduction was based on a change in circumstances resulting from the
untimely death of the parties' child, a change in the parenting time schedule
between the parties, and the birth of defendant's child. This amount was
1
Although the parties' motions and resulting orders address other requests for
relief not challenged in this appeal, we limit our discussion to the provisions
relevant here.
A-3374-22
2
calculated pursuant to the child support guidelines 2 based on the information
contained in the parties' case information statements (CIS).
Because plaintiff believed defendant's CIS underreported his assets, she
sought to obtain documentation of other potential sources of income. On
February 2, 2023, plaintiff served a subpoena duces tecum on Team Car Wash,
requesting
1. All documents in your possession that constitute the
entire file of any and all construction done by
Alejandro Vargas or any company that you are
aware he is affiliated with.
2. All documents in your possession recording
communications between any owners/employees of
Team Car Wash pertaining to any construction done
by Alejandro Vargas or any company that you are
aware he is affiliated with.
3. All documents in your possession sent by or
received that contains the name Alejandro Vargas or
any company that you are aware he is affiliated with.
4. All documents that demonstrate payments made to
Alejandro Vargas or any company that you are
aware he is affiliated with, including, but not limited
to, checks, wire transfers, invoices, proposals,
estimates, labor costs, time sheets, material costs,
etc.
2
Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,
Appendix IX-B(2) to R. 5:6A (2024).
A-3374-22
3
5. All documents that include any company names
Alejandro Vargas may have been affiliated with.
On February 6, 2023, plaintiff served a similar subpoena on Trax Car
Wash. Neither business entity responded to the subpoena by the return dates
indicated on the subpoenas and, on March 20, 2023, plaintiff filed a notice of
motion to hold both entities in contempt and to compel the production of the
documents sought in the subpoenas. Defendant opposed the motion, arguing the
subpoenas were procedurally deficient, and cross-moved for attorneys' fees.
On May 12, 2023, Judge Sullivan issued an order denying plaintiff's
motion and awarding defendant $2,837.50 in attorneys' fees. In the
accompanying statement of reasons, the judge found the subpoenas failed to
comply with Rule 4:14-7(c) because they were not accompanied by a notice of
time and place for deposition and plaintiff did not serve a copy of the subpoenas
on defendant. The judge also granted defendant's motion for reasonable
attorneys' fees because he was forced "to incur unnecessary legal fees" as a result
of plaintiff's violation of court rules.
Plaintiff filed a motion for reconsideration and request to depose
defendant, which defendant opposed. In support of the motion, plaintiff's
counsel certified the subpoenas complied with the court rule and acknowledged
the lack of service on defendant may have been caused by an oversight by his
A-3374-22
4
office. Plaintiff sought to depose defendant about his finances, contending he
had misrepresented his assets on his CIS. In support of this request, plaintiff
attached a copy of deed and title documents indicating defendant purchased a
home for $360,000 in May 2021, which he then deeded to a living trust in
February 2023. Plaintiff claimed this transaction demonstrated defendant hid
assets for purposes of his child support obligation.
Judge Sullivan denied plaintiff's motion by order dated June 9, 2023. In
the accompanying statement of reasons, the judge reiterated she had denied
plaintiff's initial motion for contempt and enforcement of the subpoenas "for
procedural deficiencies, namely, failure to serve [d]efendant with the subpoenas
and failure to designate a time and place for the . . . deposition." The judge also
pointed out the subpoenas were issued without the permission of the court,
which was required because the matter was post-judgment and no proceeding
was pending before the court. She further noted counsel's certification was
"perplexing" because it "concede[d] . . . [d]efendant may not have been properly
served with the subpoenas 'for some reason.'" Although plaintiff averred
defendant "knew about the subpoenas," she failed to produce any proof of
service.
A-3374-22
5
As for reconsideration of the award of attorneys' fees, the judge noted
plaintiff did not initially oppose defendant's cross-motion for attorneys' fees and
instead filed a motion for reconsideration. Thus, plaintiff failed to demonstrate
the prior decision warranted reconsideration because it was unreasonable or
overlooked a material issue of fact or law.
The judge also denied the request to depose defendant, finding plaintiff
failed to establish a prima facie case of change in circumstances justifying the
deposition.
This appeal follows, in which plaintiff raises the following issues for our
consideration:
POINT I
THE SUBPOENAE IN QUESTION WERE
PROPERLY ISSUED WHEN IT BECAME CLEAR
THAT DEFENDANT WAS MISREPRESENTING TO
THE COURT HIS INCOME AND ASSETS AND
WERE IN FULL COMPLIANCE WITH THE RULES
OF THIS COURT.
POINT II
THE AWARD OF ATTORNEYS' FEES TO
DEFENDANT WAS A CLEAR ABUSE OF
DISCRETION WARRANTING CONSIDERATION.
A-3374-22
6
POINT III
THE COURT ERRED IN DENYING PLAINTIFF'S
APPLICATION TO DEPOSE DEFENDANT WITH
RESPECT TO HIS FINANCIAL CIRCUMSTANCES.
We review a trial judge's decision on whether to grant or deny a motion
for reconsideration under Rule 4:49-2 for an abuse of discretion. Branch v.
Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (citing Kornbleuth v. Westover,
241 N.J. 289, 301 (2020)). "An abuse of discretion 'arises when a decision is
made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Pitney Bowes Bank, Inc. v. ACB
Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (quoting Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks
and citation omitted)).
Reconsideration "is not appropriate merely because a litigant is
dissatisfied with a decision of the court or wishes to reargue a motion." Palombi
v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). Rather, reconsideration
should be utilized only for those cases which fall into
that narrow corridor in which 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.
A-3374-22
7
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)).]
Turning to plaintiff's first point, she argues the court misapplied Rule 1:9-
2 and 4:14-7(c) because the subpoenas contained the proper wording and sought
records rather than dates to appear for deposition. We disagree.
The judge denied plaintiff's motion to enforce the subpoenas for two
reasons. First, despite plaintiff's repeated contentions to the contrary, the
subpoenas failed to comport with Rule 4:14-7(c), which states that "[a] subpoena
commanding a person to produce evidence for discovery purposes may be issued
only to a person whose attendance at a designated time and place for the taking
of a deposition is simultaneously compelled." Plainly stated, a demand for
documents must be accompanied by a notice of deposition. Although plaintiff's
subpoenas commanded the recipients "to produce and deliver" documents to her
counsel's office by a certain date and time, this instruction does not transform
the subpoena duces tecum, which is a demand for the production of documents.
into a subpoena ad testificandum, which is a demand to appear for a deposition.
Second, plaintiff failed to comply with the section of Rule 4:14-7(c) that
requires a subpoena to "be simultaneously served no less than [ten] days prior
to the [return] date . . . on all parties." Plaintiff's secondhand knowledge of the
subpoena did not satisfy this requirement.
A-3374-22
8
In denying plaintiff's motion for reconsideration, the judge reiterated these
reasons and, although not addressed in her prior decision, also noted the
subpoenas here were issued post-judgment and therefore required leave of court
pursuant to Rule 5:5-1(d). Not only did plaintiff not seek the requisite
permission, she served the subpoenas after the court had already issued its
decision on the motion and there was no longer any matter pending.
We are unpersuaded the judge's denial of reconsideration constituted an
abuse of discretion because nothing about her prior decision lacked a rational
explanation, departed from established policies, or rested on an impermissible
basis.
Turning to plaintiff's second point, we also review a trial court's award of
attorneys' fees for abuse of discretion. Garmeaux v. DNV Concepts, Inc., 448
N.J. Super. 148, 155 (App. Div. 2016). Determinations regarding attorneys' fees
will be disturbed "only on the rarest of occasions, and then only because of a
clear abuse of discretion." Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372,
386 (2009) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444
(2001)). Where a trial judge correctly applies the case law, statutes, and court
rules governing attorneys' fees, the fee award is entitled to an appellate court's
deference. See Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000).
A-3374-22
9
In family actions, a trial court has the authority to award attorneys' fees
pursuant to N.J.S.A. 2A:34-23, Rule 4:42-9(a)(1) and Rule 5:3-5. The award of
attorneys' fees in matrimonial matters is within the sound discretion of the court.
Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). When awarding
attorneys' fees, a
court must consider whether the party requesting the
fees is in financial need; whether the party against
whom the fees are sought has the ability to pay; the
good or bad faith of either party in pursuing or
defending the action; the nature and extent of the
services rendered; and the reasonableness of the fees.
[Mani v. Mani, 183 N.J. 70, 94-95 (2005) (citing
Williams v. Williams, 59 N.J. 229, 233 (1971)).]
Here, the trial court did not abuse its discretion in awarding defendant
attorneys' fees because it carefully considered plaintiff's violation of the court
rules and reasonableness of the fees requested. In denying the motion for
reconsideration, the judge also noted plaintiff failed to oppose defendant's
motion. In light of our deferential standard of review, we discern no basis to
disturb the trial court's decision.
We next address plaintiff's third point, in which she argues she
demonstrated with "irrefutable evidence" defendant misrepresented to the court
A-3374-22
10
his major asset, a $360,000 home, and the court "minimized" this "blatant
misrepresentation."
Again, our scope of review of Family Part orders is narrow. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). We "accord particular deference to the Family
Part because of its 'special jurisdiction and expertise' in family matters," Harte
v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J.
at 412), and we will not overturn the Family Part's findings of fact when they
are "supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at
412. A reviewing court will also not disturb the Family Part's factual findings
and legal conclusions that flow from them unless they are "so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Ricci v. Ricci, 448 N.J.
Super. 546, 564 (App. Div. 2017) (quoting Elrom v. Elrom, 439 N.J. Super. 424,
433 (App. Div. 2015)). We review a Family Part's legal determinations de
novo. Id. at 565.
In a post judgment setting, a "party seeking modification has the burden
of showing such 'changed circumstances' as would warrant relief from the
support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157
(1980). Before a court has the ability to "order discovery of an ex -spouse's
A-3374-22
11
financial status[,]" a movant must make a prima facie showing of changed
circumstances. Ibid. "When the movant is seeking modification of child
support, the guiding principle is the 'best interests of the children.'" Ibid. "A
prima facie showing would then require a demonstration that the child's needs
have increased to an extent for which the original arrangement does not
provide." Ibid. Only "once a prima facie case is established, tax returns or other
financial information should be ordered." Ibid.Here, plaintiff did not demonstrate her child's needs increased in a way
that defendant's current child support obligation did not cover expenses; rather,
she alleged defendant's purchase of a "mansion" should have signaled his
income was greater than he claimed on his CIS. The judge disagreed with
plaintiff's characterization of defendant's home and determined plaintiff's
arguments fell short of establishing a prima facie showing of a change in
circumstances that would warrant the court's revisiting child support or
permitting discovery on defendant's finances. Having reviewed the record in
light of the applicable standard of review, we discern no reason to disturb the
judge's determination.
Affirmed.
A-3374-22
12