Remand Of Post-Judgment Child Custody Issue For Due Process
- March 9, 2015
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S.W. v. W.B., is a New Jersey Appellate Division case that was decided in 2015 in which the Defendant appealed a prior Court Order that denied his Motion for Reconsideration regarding post-judgment divorce and child custody Orders that pertained to reimbursement obligations for extra-curricular activity expenses for his children. In reviewing a Motion for Reconsideration, a court must determine if the trial court abused its discretion in rendering the decision that is disputed. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002). “Reconsideration should be used only for those cases . . . where 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.” Id. (quoting D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A Motion for Reconsideration should only be granted under very narrow circumstances. In this case, the Appellate Division agreed with the Defendant that the Family Court mistakenly viewed part of the Defendant’s Motion as a Motion for Reconsideration, when it should have treated the Motion as one to vacate the prior Court Order on due process grounds and the court should have considered the merits of his argument before denying his Motion. The Plaintiff and Defendant were married in 1998 and two (2) daughters were born during the marriage. In 2009, the parties decided to divorce and their final divorce judgment incorporated a property settlement agreement (PSA). Apparently, the parties agreed to equal shared parenting time. There has been multiple post divorce disputes with regard to the sharing of the children’s extra-curricular activity expenses. The agreement provided that the Defendant was to pay 48% and the Plaintiff 52% of the costs associated with the activities. Further, the agreement particularly states that “The parties shall discuss the cost of any activity and only agreed upon activities shall be so divided. Neither party shall enroll the children into an activity without discussing same and obtaining agreement from the other party.” Since 2009, the litigants have come to court with disputes regarding this provision on multiple occasions. With regard to the latest exchange of Motions between the parties, the Defendant filed his Motion for Reconsideration 20 days after his receipt of the Court Order he was objecting to because he claimed that he was not properly served with previous pleadings. . . .” The Defendant filed an appeal in 2013 and referenced a number of prior Court Orders that he was dissatisfied with. For the reasons previously mentioned the Appellate Division remanded the case back to the Family Court to make determination on the issues of the case. If you believe a post-judgment modification of your child custody arrangement or obligations may be beneficial, it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification , divorce, alimony, child custody, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.