Michael A. McDowall v. Maureen McDowall ( 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NOT FOR PUBLICATION WITHOUT THE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-1346-22
MICHAEL A. MCDOWALL,
Plaintiff-Appellant,
v.
MAUREEN MCDOWALL,
Defendant-Respondent.
___________________________
Submitted January 30, 2024 – Decided April 4, 2024
Before Judges Haas and Puglisi.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0178-17.
Michael A. McDowall, appellant pro se.
Gomperts, McDermott & Von Ellen, LLC, attorneys for
respondent (Marisa Lepore Hovanec, of counsel and on
the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Michael A. McDowall
appeals from certain provisions of the Family Part's October 4, 2022 order
granting defendant Maureen McDowall's motions for enforcement and
reimbursement and denying plaintiff's motions to modify custody, parenting
time and child support. We affirm, substantially for the reasons set forth by
Judge Nina C. Remson in her oral opinion.
Plaintiff and defendant married in 1998 and divorced in 2017. Their dual
judgment of divorce incorporated a comprehensive marital settlement agreement
(MSA) that resolved the outstanding issues between the parties.
The MSA provided the parties shared joint legal custody of their two sons,
T.M. and R.M., with defendant the parent of primary residence and plaintiff the
parent of alternate residence. Plaintiff had parenting time on alternating
weekends, alternating Tuesdays and Thursdays, and an additional Wednesday
each month.
The MSA provided for the allocation of T.M.'s ice hockey expenses after
the 2017-2018 season. Tuition, club dues and fees were to be paid by plaintiff
seventy-five percent and defendant twenty-five percent; and all travel and
equipment costs were to be paid by plaintiff.
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The MSA also provided for the allocation of the children's health
insurance and medical expenses. After defendant's payment of the first $250 of
uncovered health costs per year, per child, the parties were to split the remaining
costs pursuant to their pro rata share calculated in the child support guidelines,
which was plaintiff's sixty percent to defendant's forty percent.
The MSA provided for allocation of the costs associated with the marital
residence. Commencing May 1, 2017, defendant assumed financial
responsibility for the residence, contingent on plaintiff's timely payment of
alimony and child support. Defendant was also responsible for nominal repairs
totaling less than $100 per occurrence. The parties were to split the costs of any
repair exceeding that amount pursuant to their pro rata share calculated in the
child support guidelines.
Defendant filed a motion seeking enforcement of certain provisions of the
MSA, to which plaintiff filed a cross-motion. On October 7, 2020, the court
entered an order that required, in pertinent part, plaintiff to reimburse defendant
for his sixty percent share of R.M.'s orthodontia, $77.50 for R.M.'s 2019 baseball
fees, and $1,137 for home repairs. Although plaintiff filed a notice of appeal of
the order, it was dismissed.
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Defendant filed another motion requesting enforcement of certain
provisions of the October 7, 2020 order, in addition to reimbursement of other
expenses. Plaintiff opposed defendant's motion and cross-moved to modify
custody and parenting time and recalculate child support and alimony.
Judge Remson ordered the parties to attend mediation, which was
unsuccessful. On October 4, 2022, the judge heard argument on the motions,
during which both parties presented their proofs through counsel.
Relevant to this appeal, the judge granted defendant's request for
enforcement of the October 2020 order compelling plaintiff to pay sixty percent
of R.M.'s orthodontic expenses and ordered plaintiff to pay defendant $3,056
within thirty days of the order (paragraphs one and two of the order). She also
granted defendant's request for enforcement of the October 2020 order
compelling plaintiff to pay $77.50 for R.M.'s 2019 baseball fees and $1,137 for
home repairs and ordered plaintiff to pay these amounts within thirty days of the
order (paragraphs nineteen and twenty). The judge further granted defendant's
request for reimbursement of plumbing expenses totaling $850 and ordered
plaintiff to pay his sixty percent share, which was $510, within thirty days of
the order (paragraph eighteen). The judge denied without prejudice plaintiff's
requests to modify custody, parenting time and child support (paragraphs nine
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and ten) because he failed to demonstrate a prima facie showing of changed
circumstances to revisit custody and parenting time. Plaintiff's request to
modify child support was also denied because it was premised on a change in
the parenting time schedule.
This appeal follows, wherein plaintiff appeals these paragraphs of the
order.1 On appeal, plaintiff presents the following issues for our consideration:
POINT I
TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO DEFENDANT BECAUSE
DEFENDANT DID NOT PROVIDE THE PROPER
DOCUMENTATION FOR PROOF OF PAYMENT.
POINT II
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO DEFENDANT
BECAUSE THE COURT MISCALCULATED THE
AMOUNTS DUE FROM PROOF OF PAYMENTS
PROVIDED.
POINT III
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO DEFENDANT
BECAUSE DEFENDANT RECEIVED AN
INSURANCE PAYMENT FOR REPAIRS OF THE
HOME IN EXCESS OF THE PLUMBER BILL.
1
Defendant's brief suggests plaintiff filed a notice of appeal from different
paragraphs of the October 4, 2022 order, and then failed to brief those issues.
We do not concur with this reading of the notice of appeal and brief.
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POINT IV
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO DEFENDANT
BECAUSE DEFENDANT DID NOT PROVIDE THE
PROPER DOCUMENTATION FOR PROOF OF
PAYMENTS TOTALING IN EXCESS OF $250.00.
POINT V
THE TRIAL COURT ERRED IN DENYING
INCREASE IN PARENTING TIME AS THE TRIAL
COURT DID NOT MAKE AN EFFORT TO MAKE A
FINDING OF WHETHER THERE HAS BEEN
SUBSTANTIAL CHANGE OF CIRCUMSTANCES
AND DID NOT PROVIDE [PLAINTIFF] AN
OPPORTUNITY FOR A PLENARY HEARING.
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 id. 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
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(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.
Having considered defendant's contentions in light of the applicable law,
we conclude they lack sufficient merit to warrant extended discussion in a
written opinion. R. 2:11-3(e)(1)(e). The judge's factual findings regarding
documentation of payments are supported in the record; to the extent plaintiff
seeks to challenge the enforcement of a prior order by attacking the prior order,
he is out of time to do so. See R. 2:4-1. We also agree with the judge's finding
plaintiff failed to establish a prima facie showing of changed circumstances that
would have warranted a plenary hearing regarding modification of his parenting
time.
Affirmed.
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