JENNIFER SOWA VS. MICHAEL SOWA (FM-14-1237-13, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1429-16T1
JENNIFER SOWA,
Plaintiff-Respondent,
v.
MICHAEL SOWA,
Defendant-Appellant.
___________________________
Submitted October 31, 2017 - Decided December 5, 2017
Before Judges Reisner and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-1237-13.
Michael Sowa, appellant pro se.
Daly & Associates, LLC, attorneys for
respondent (Carolyn N. Daly and Amy Kriegsman,
on the brief).
PER CURIAM
Defendant Michael Sowa appeals from a November 3, 2016
Chancery Division order denying his motion for reconsideration.
Defendant requested reconsideration of the Chancery Division's
order dated May 27, 2016, denying his request to modify alimony
and rescinding a previously scheduled plenary hearing. We affirm
in part and reverse and remand in part.
Defendant and plaintiff signed a Marital Settlement Agreement
(MSA) finalizing their divorce on November 19, 2013. The MSA
required defendant to pay alimony and child support. The MSA
provided:
[I]n the event the husband, who recently lost
his job as a result of a reduction in
workforce, does not have another job within
six (6) months of the entry of the Judgement
of Divorce he may make an application to the
court to modify his alimony and child support
obligations.
In accordance with the MSA, modification of defendant's alimony
or child support obligation was contingent on defendant's
satisfaction of the criteria set forth in Lepis v. Lepis, 83 N.J.
139 (1980).
Defendant, who was unemployed as of the date of the divorce,
remained unemployed for twenty months after the divorce was
finalized. On or about December 24, 2014, defendant filed a motion
to terminate alimony and modify child support.1 On January 9,
2015, a family court judge denied defendant's motion. The judge
found that defendant had not engaged in the requisite exhaustive
1
Technically, defendant filed a cross-motion. However,
plaintiff's motion precipitating the cross-motion is not the
subject of this appeal and is irrelevant to our disposition of
this matter.
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job search to substantiate changed circumstances, since he
"narrowed his job search to positions in his chosen field offering
minimum salaries of $100,000" near Albany, New York. Under the
then newly amended alimony statute, the judge concluded that
defendant failed "to explore employment opportunities at any level
in any field" to justify a modification of his alimony obligation.
Similarly, the judge determined that defendant's limited job
search efforts failed to demonstrate substantial changes
warranting a downward adjustment of child support. Nor did the
judge deem a reduction in child support to be in the best interests
of the children. Defendant then moved for reconsideration of the
January 9, 2015 order, which was denied on March 26, 2015.
In August 2015, defendant filed another motion to terminate
alimony and modify child support. In that application, defendant
also sought to suspend life insurance and college tuition
obligations based on his unemployed status. However, a few weeks
after filing that motion, on August 26, 2015, defendant began a
new job.
Two months after he began working, and while his August motion
was pending, defendant wrote to the court to advise that he
obtained full-time employment. Defendant requested an adjustment
in alimony and child support based on his earning approximately
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$50,000 less than he earned prior to the divorce. Defendant failed
to amend his pending motion based on his new employment and salary.
On February 26, 2016, another family court judge ruled on
defendant's August 2015 motion. The judge's statement of reasons
accompanying that order noted that the MSA addressed defendant's
continued unemployment. Although the judge found that defendant
had filed a partially complete Case Information Statement (CIS)
in support of his motion, based on the parties' conflicting
certifications raising factual disputes, he ordered the matter to
proceed to a post-judgment early settlement panel for review and
disposition. The judge denied all other requested relief.
After the post-judgment early settlement panel, the parties
reported to the motion judge. By order dated May 16, 2016, the
judge scheduled the matter for a plenary hearing in June. The
next day, plaintiff's attorney wrote to the judge explaining the
"matter can't be set for a plenary hearing as all of the relief
sought in the motion and cross-motion were denied." Plaintiff's
attorney argued that since both motions were denied without
prejudice, there was nothing pending before the court, and both
sides were required to re-file their motions. In response,
defendant stated that his motion was not denied and a plenary
hearing should be held. Plaintiff's attorney countered that
defendant had not met his burden of proving changed circumstances.
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On May 27, 2016, the judge rescinded his order scheduling a
plenary hearing. The judge noted that because defendant failed
to establish a prima facie case of changed circumstances, he was
not entitled to a plenary hearing until he met that burden. In
rescinding the order scheduling a plenary hearing, the judge
incorporated his written statement of reasons attached to the
February 26, 2016 order.
In June 2016, defendant filed a motion for reconsideration
of the May 27, 2016 order. Plaintiff cross-moved to enforce
litigant's rights and compel payment of arrears.
On November 3, 2016, the judge denied defendant's
reconsideration motion and granted plaintiff's cross-motion for
relief in aid of litigant's rights. The judge found that
defendant's June 2016 motion only argued that defendant's
unemployment status entitled him to a modification of his financial
obligations. Because defendant's first motion, decided on January
9, 2015, requested the same relief as did defendant's June 2016
motion, the June motion was really a reconsideration of the March
26, 2015 reconsideration order. The judge denied defendant's June
2016 motion finding that "a reconsideration of a reconsideration"
is not permitted. The judge also awarded counsel fees to plaintiff
based on defendant's bad faith.
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On appeal, defendant raises three issues. First, he argues
that the judge mistakenly denied defendant's motion for
reconsideration. Second, he claims the judge erred in deciding
defendant's motion without a plenary hearing. Third, he contends
the judge improperly awarded counsel fees to plaintiff.
We defer to a Family Part judge's decision unless the court
has abused its discretion. See Larbig v. Larbig, 384 N.J. Super.
17, 23 (App. Div. 2006). "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." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div.
2012) (citations omitted).
Motions for reconsideration are governed by Rule 4:49-2. The
Rule requires that a reconsideration motion "state with
specificity the basis on which it is made, including a statement
of the matters or controlling decisions which counsel believes the
court has overlooked or as to which it has erred." R. 4:49-2. In
addition, a court may, in its discretion, reconsider a matter "in
the interest of justice." D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990). Reconsideration is reserved for those
limited circumstances in which the court's decision was based upon
a palpably incorrect or irrational basis, or the court failed to
consider the significance of probative, competent evidence. Id.
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Reconsideration is not appropriate "merely because a litigant is
dissatisfied with a decision of the court." Palombi v. Palombi,
414 N.J. Super. 274, 288 (2010). Nor is reconsideration a
mechanism for "unhappy litigants [to] attempt once more to air
their positions and relitigate issues already decided." Michel
v. Michel, 210 N.J. Super. 218, 224 (Ch. Div. 1985).
Defendant's original motion to modify alimony and child
support was denied by order dated January 9, 2015. Reconsideration
of that order was denied on March 26, 2015. In August 2015,
defendant filed a motion for modification of alimony and child
support substantially similar to his original modification motion.
The August motion set forth the same facts in support of downward
modification of defendant's support obligations as proffered in
defendant's original motion. Significantly, defendant procured
employment after filing his August modification motion but did not
seek to amend his pending motion. Further, defendant's August
motion failed to provide a complete CIS in accordance with Rule
5:5-4.2 Thus, defendant's June 2016 motion sought reconsideration
of his August 2015 motion, which sought the same relief on the
same grounds as both the December 2014 motion and the first
reconsideration motion.
2
Defendant's CIS attached to his August motion did not include a
tax return with W-2, 1099s, or paystubs.
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We agree with the motion judge that defendant's motion was
an improper reconsideration of an earlier reconsideration order.
Defendant failed to set forth evidence that the judge's reasoning
was plainly incorrect or that the judge failed to consider relevant
evidence. Moreover, as a result of defendant's failure to file a
complete CIS with his August 2015 modification motion and provide
information substantiating his new salary, we find the judge
properly denied defendant's August 2015 motion.
Next, defendant argues that he was entitled to a plenary
hearing in connection with his August 2015 motion. Plenary
hearings are only required when "a prima facie showing has been
made that a genuine issue of fact exits bearing upon a critical
question." Bisbing v. Bisbing, 445 N.J. Super. 207, 216 (2016)
(citations omitted), aff’d in part, 230 N.J. 309 (2017). Plenary
hearings may not be necessary if the family court is "familiar
with the parties through extensive motion practice." Id. at 213.
We agree with the judge that defendant failed to make a prima
facie showing of substantial changed circumstances warranting a
plenary hearing on defendant's motion to reduce his support
obligations. Defendant merely reargued his original motion for
modification of alimony and child support without raising new
facts. A significant new fact was defendant's employment as of
August 2015, yet defendant did not provide this information as
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part of his August motion. Under the circumstances, the judge,
who reviewed the file, including the documents related to the
January 9, 2015 and March 26, 2015 orders, and met with the parties
in May 2015 after the post-judgment early settlement panel,
correctly observed that defendant failed to demonstrate changed
circumstances.
Lastly, defendant argues that the award of counsel fees to
plaintiff was improper as the judge failed to articulate findings
in support of the awarded fees. A court must clearly state "its
factual findings and correlate them with the relevant legal
conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980); see
R. 1:7-4. Without such findings, it is impossible for us to decide
whether the determination below is supported by substantial
credible proof on the record. See Mol v. Mol, 147 N.J. Super. 5,
9 (App. Div. 1977). A recitation of the factors for awarding
counsel fees is insufficient. Grayer v. Grayer, 147 N.J. Super.
513, 516 (App. Div 1977).
The judge awarded counsel fees to plaintiff based upon his
finding that defendant acted in "bad faith." While the judge
listed the factors that he considered in awarding counsel fees,
he did not set forth any specific findings as to why or how
defendant acted in bad faith. Nor did the judge explain how the
factors he considered in awarding counsel fees applied in this
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case. As such, we are required to remand this issue to the judge
to set forth his factual findings and correlate them with the
relevant law to support the award of counsel fees to plaintiff.
Affirmed as to denial of defendant's motion to modify alimony
and child support without a plenary hearing. Reversed and remanded
as to the award of counsel fees to plaintiff. We do not retain
jurisdiction.
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