AMY SCOTT VS. GREGORY SCOTT (FM-02-1941-06, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3880-14T4
AMY SCOTT,
Plaintiff-Respondent,
v.
GREGORY SCOTT,
Defendant-Appellant.
__________________________
Argued January 19, 2017 – Decided May 15, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FM-02-1941-06.
Gregory Scott, appellant, argued the cause pro
se.
Kenneth R. Rush argued the cause for
respondent (DiLorenzo & Rush, attorneys; Mr.
Rush, of counsel and on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant Gregory
Scott appeals from numerous Family Part orders entered between
September 25, 2013, and September 30, 2015. For the reasons that
follow, we conclude that defendant's appeal from the orders entered
on September 25, 2013, January 2, 2014, and April 11, 2014, is
untimely, and affirm as to all other orders.
We recite that part of the procedural history and record
pertinent to this appeal. Defendant and plaintiff Amy Scott were
married in August 1993, and divorced in June 2007. Three children
were born of the marriage. Pursuant to the parties Property
Settlement Agreement (PSA), which was incorporated into their Dual
Final Judgment of Divorce, the parties had joint legal and shared
physical custody of the children, with plaintiff as the children's
parent of primary residence. The PSA required defendant to pay
$1205 per month ($280.23 per week) for child support, commencing
July 1, 2007, and set his parenting time on alternate weekends
commencing on Friday at 6:00 p.m. and continuing overnight until
Sunday at 8:00 p.m., and every Wednesday from 6:00 p.m. until
Thursday morning when defendant would take the children to school.
The PSA also required the parties to pay for the children's
extracurricular activity and medical expenses in proportion to
their incomes as established by the Child Support Guidelines.
In December 2010, plaintiff filed a motion to enforce the
PSA's child support provisions as a result of defendant's
unilateral decision to reduce his support payments and failure to
pay his share of the children's extracurricular activity and
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unreimbursed medical expenses. On January 20, 2011, defendant
filed a cross-motion to modify his support payments based on an
alleged reduction in income.
On May 17, 2011, the court entered an order scheduling the
matter for a plenary hearing and directing the parties to exchange
discovery. The order limited the factual issues to be addressed
at the hearing to the parties' income; alimony and child support
modification; alimony arrears; and the children's unreimbursed
extracurricular activity and medical expenses.
Following a seven-day hearing and the parties' submission of
post-hearing briefs, the court entered an order and written opinion
on September 25, 2013, ordering defendant to pay plaintiff
$23,483.96 for unreimbursed extracurricular activity and medical
expenses and $8400 for counsel fees, and setting an allocation
between the parties for college expenses. The court modified
defendant's child support obligation to $271 per week, retroactive
to January 20, 2011. However, the court incorrectly used the sole
parenting worksheet to calculate child support, and the worksheet
incorrectly denoted that defendant had no parenting time, whereas,
he had shared physical custody of and 104 overnights with the
children as per the PSA.
On October 16, 2013, defendant filed a motion for
reconsideration of the September 25, 2013 order, challenging the
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sufficiency of the evidence presented at the hearing and the
court's incorrect use of the sole parenting time worksheet to
calculate child support. On January 2, 2014, the court entered
an order denying the motion; ordering defendant to make the
payments required by the September 25, 2013 order; and entering
judgment against defendant in the amount of those payments. The
order also directed plaintiff's attorney to recalculate child
support, retroactive to January 20, 2011, using the correct
worksheet.
On January 23, 2014, defendant filed a motion for
reconsideration of the January 2, 2014 order. Defendant sought a
recalculation of child support, vacatur of the counsel fee award,
and a new plenary hearing. Thereafter, on April 9, 2014,
plaintiff's attorney submitted a recalculation of defendant's
child support obligation at $197 per week, using the shared
parenting worksheet and including the 104 overnights defendant had
with the children.
On April 11, 2014, the court entered an order and written
opinion denying defendant's motion for reconsideration. The order
permitted defendant to either challenge the child support
recalculation by pointing out to plaintiff's counsel any error in
data put into the program to see if they can agree on a number,
or do his own calculation and ask the court to adopt it. Defendant
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claimed that he contacted plaintiff's attorney and pointed out
errors in the healthcare costs, but the attorney failed to submit
a new calculation. Plaintiff claimed that her attorney could not
submit a new calculation because defendant never supplied
information for a recalculation. In any event, defendant did not
submit his own calculation to the court, as permitted by the April
11, 2013 order, and did not appeal from the September 25, 2013,
January 2, 2014, or April 11, 2014 orders.
Defendant's time to appeal these three orders had long expired
when he filed a motion on November 14, 2014, for a recalculation
and modification of his child support obligation retroactive to
January 20, 2011. Defendant based this motion on the court's
incorrect use of the sole parenting worksheet in the September 25,
2013 order and the failure of plaintiff's attorney to submit a new
calculation.
On February 13, 2015, the court entered an order and written
opinion, modifying defendant's child support obligation to $118
per week retroactive to November 14, 2014, the motion filing date.
The court considered the current financial information and recent
overnight figures the parties had submitted, and used the shared
parenting worksheet to claculate defendant's current child support
obligation. Citing N.J.S.A. 2A:17-56.23a, the court declined to
modify defendant's child support obligation retroactive to January
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20, 2011. The court found that the April 11, 2014 order, which
permitted defendant to challenge plaintiff's attorney's
recalculation of child support, did not preserve defendant's right
to challenge the January 20, 2011 order or to apply and to
retroactively seek to modify his child support obligation to
January 20, 2011.
On March 12, 2015, defendant filed a motion for
reconsideration of the February 13, 2015 order, again seeking to
modify his child support obligation retroactive to January 20,
2011. Finding no grounds for reconsideration, the court entered
an order and written opinion on April 10, 2015, denying the motion.
Defendant filed a notice of appeal on April 23, 2015,
appealing from all orders entered from September 25, 2013, to
April 10, 2015. While the appeal was pending, on June 2, 2015,
defendant filed a motion to enforce litigant's rights, seeking,
to compel plaintiff to satisfy her PSA-required financial
obligations regarding the former marital home, among other things.
The court entered an order on July 24, 2015, finding plaintiff in
violation of litigant's rights, and imposing a $200-per-day
sanction against her if she remained non-compliant with paying
outstanding tax liens and other obligations on the former marital
home after sixty days.
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Plaintiff filed a motion for reconsideration of the July 24,
2015 order, arguing that the court did not consider her opposition
to defendant's motion because it was not timely filed. In her
opposition, plaintiff noted her financial problems caused by
defendant's failure to pay alimony, the children's unreimbursed
extracurricular activity expenses, and his share of college
expenses, which she paid. Plaintiff certified that defendant had
$31,475.84 in alimony arrears.
The court considered plaintiff's opposition and entered an
order on September 30, 2015, granting her motion in part. The
court removed the monetary sanction imposed by the July 24, 2015
order based on the accrual of significant alimony arrears and
defendant's failure to pay for the children's unreimbursed
extracurricular activity and medical expenses. The court stated
that if defendant remained in arrears after this court decided the
this appeal, plaintiff could apply to the trial court to have the
arrears and/or judgments applied either as reimbursement for
payments toward the tax lien or have defendant contribute directly
toward the tax lien in the arrears amount. This court granted
defendant's motion to include the September 30, 2015 order in this
appeal.
We first address the untimeliness of defendant's appeal from
the orders entered on September 25, 2013, January 2, 2014, and
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April 11, 2014. "An appeal from a final judgment must be filed
with the Appellate Division within forty-five days of its entry,
R. 2:4-1, and served upon all other parties, R. 2:5-1(a)."
Lombardi v. Masso, 207 N.J. 517, 540 (2011). Rule 2:4-1
circumscribes the scope of this court's authority. In re
Christie's Appointment of Perez as Public Member 7 of Rutgers
Univ. Bd. of Governors, 436 N.J. Super. 575, 584 (App. Div. 2014).
Where the appeal is untimely, we have no jurisdiction to decide
the merits of the appeal. Ridge at Back Brook, LLC v. Klenert,
437 N.J. Super. 90, 97 n.4 (App. Div. 2014) (quoting In re Hill,
241 N.J. Super. 367, 372 (App. Div. 1990)). Rule 2:4-4(a) permits
a maximum thirty-day extension of time, but only if the notice of
appeal was actually filed within the time as extended, see
Lombardi, supra, 207 N.J. at 540-41, which did not occur here. No
further extension is permitted, and we are without jurisdiction
to hear an appeal brought beyond the date permitted by Rule 2:4-
4(a). In re Hill, supra, 241 N.J. Super. at 372.
There is no question that a post-judgment order of the Family
Part modifying a support decree is a final order for purposes of
appeal. Rule 2:4-1(a); Adams v. Adams, 53 N.J. Super. 424, 428
(App. Div.), certif. denied, 30 N.J. 151 (1959). Accordingly, the
time for appeal would run from the date of the post-judgment order.
Adams, supra, 53 N.J. Super. at 430. Filing a motion for
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reconsideration tolls the time to appeal a final post-judgment
order. R. 2:4-3(e). Once the trial court enters an order
disposing of the motion for reconsideration, the time within which
to appeal begins to run again, and only the time remaining when
the motion was filed is available. Ibid.
Applying these principles to the procedural history of this
case makes clear that defendant's attempt to appeal the orders of
September 25, 2013, January 2, 2014, and April 11, 2014, is
untimely and we are without jurisdiction to consider the arguments
raised in Points 1 to 7 in defendant's merits brief relating to
these orders. Accordingly, we limit our review to defendant's
appeal from the February 13, April 10, and September 30, 2015
orders.
Regarding the February 13, 2015 order, defendant argues that
the court erred in failing to retroactively modify his child
support obligation to January 20, 2011, and failing to consider
the transcripts of hearings on November 22, 2013 and April 11,
2014 concerning plaintiff's counsel's obligation to submit a
recalculation of child support. Regarding the April 10, 2015
order, defendant argues that the court failed to consider all
arguments raised in his motion for reconsideration of the February
13, 2015 order. Regarding the September 30, 2015 order, defendant
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argues that the court erred in removing the sanctions the July 24,
2015 order imposed against plaintiff.
We have considered these arguments in light of the record and
applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). However, we make the following brief comments.
N.J.S.A. 2A:17-56.23a provides a limitation on the extent to
which a judge is authorized to retroactively modify a child support
order. The statute specifies that any such retroactive
modification shall be limited to the period between the date the
motion for modification was filed and the date the order of
modification was issued. The statute provides as follows, in
pertinent part:
No payment or installment of an order for
child support, or those portions of an order
which are allocated for child support . . .
shall be retroactively modified by the court
except with respect to the period during which
there is a pending application for
modification, but only from the date the
notice of motion was mailed either directly
or through the appropriate agent.
The statute plainly and unequivocally bars the court from modifying
retroactively a party's child support obligation to a date prior
to the filing of the motion seeking that relief. Where, as here,
a statute is clear and unambiguous, we are required to enforce the
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law according to its terms. State, Dep't of Law & Pub. Safety v.
Bigham, 119 N.J. 646, 651 (1990).
Lastly, Rule 1:10-3 allows a court, in its discretion, to
impose sanctions on a non-obedient party who refuses to comply
with a prior order. See Milne v. Goldenberg, 428 N.J. Super. 184,
198 (App. Div. 2012). Imposition of a sanction for a violation
requires a showing that non-compliance was inexcusable, which
means that the party had the ability to comply but did not. Ibid.
The court did not abuse its discretion by removing the
monetary sanction against plaintiff imposed under the July 24,
2015 order. The court imposed the sanction without consideration
of plaintiff's opposition to defendant's motion in aid of
litigant's rights; plaintiff's non-compliance was excusable given
defendant's failure to comply with his financial obligations
toward her and the children.
Affirmed.
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