NOT FOR PUBLICATION WITHOUT THE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-2573-16T1
ABDELALI CHEGUER,
Plaintiff-Respondent,
v.
TANYA CHEGUER,
Defendant-Appellant.
________________________________
Argued May 24, 2018 – Decided June 8, 2018
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FM-20-0207-16.
Jessica Ragno Sprague argued the cause for
appellant (Weinberger Divorce & Family Law
Group, LLC, attorneys; Jessica Ragno Sprague,
on the briefs).
William Rodriguez argued the cause for
respondent (Saminski Rodriguez Law Group,
attorneys; Kiera E. Kenniff, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant appeals
from the Family Part's January 13, 2017 order that, among other
things, set the amount of plaintiff's child support arrears. We
are constrained to reverse and remand because the trial judge did
not conduct a plenary hearing to resolve the parties' sharply
conflicting factual assertions concerning the amount plaintiff
owed.
In 2000, the parties were divorced in New York after a three-
year marriage. They have one child, who was born in 1997.
Defendant has always been the child's parent of primary residence.
In 2001, a New York court ordered plaintiff to pay defendant $100
per week in child support and an additional $47 per week for the
child's daycare expenses.
In the years that followed, defendant and the child moved
several times due to her career in the military. Eventually,
plaintiff moved to New Jersey and, in 2015, defendant filed a
motion to register the child support order in this state.
Defendant also sought an order enforcing plaintiff's support
obligation, and alleged that plaintiff was over $30,000 in arrears
in his payments. In response, plaintiff admitted that he had not
paid all the child support required since the time the support
order was entered, but alleged that the arrears were approximately
$10,000. On September 25, 2015, the trial judge granted
defendant's motion to register the support order in New Jersey,
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and directed the parties to submit supplemental certifications
detailing how each calculated the amount of plaintiff's arrears.
Both parties then filed extensive certifications and dozens
of pages of financial records in support of their competing factual
positions. Defendant alleged that plaintiff owed $36,262.14 in
unpaid child support for the period between 2007 and 2015, and
even more if the period between 2002 and 2007 was considered. In
his certification and supporting documentation, plaintiff
contradicted defendant's assertions, and argued that because he
paid a great deal of his child support directly to the parties'
child, rather than to defendant, he only owed $10,987.79 for the
period between 2007 and 2015.
For reasons that are not completely clear from the record,
the trial judge did not consider defendant's motion again until
September 9, 2016. On that date, the judge conferenced the matter
with the parties' attorneys to determine if the dispute could be
resolved. When the parties indicated a willingness to consider a
settlement, the judge permitted them to continue their discussions
in the weeks that followed, and "directed [the attorneys] to inform
the [c]ourt as to whether the matter was settled and, if not, [she
stated that] a plenary hearing would be scheduled."
When the parties later did not respond to several telephone
requests from the judge's law clerk for a status report, the judge
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simply issued an order on January 13, 2017 without conducting a
plenary hearing or even oral argument. In the order, the judge
set plaintiff's arrears as $10,557, and established a payment
schedule. The judge denied defendant's request that plaintiff
make the payments through the county probation department, and her
motion for counsel fees.
The judge provided a statement of reasons that was attached
to the order. While lengthy, the statement merely summarized the
parties' conflicting positions on the amount of the arrears,
followed by a one-sentence "finding" that "[p]laintiff's child
support arrears for the period from January, 2007 through
September, 2015 are established as $10,557.00 as set forth in the
attached spreadsheet." The spreadsheet does not explain why
certain alleged payments by plaintiff were accepted by the judge
as having been made, while others were not, or why the judge began
her calculation in 2007 instead of 2002 as defendant requested.
Similarly, while the judge set out the governing legal
standard for determining whether counsel fees were appropriate,
her statement provided no reasons for denying defendant's request.
The judge also failed to explain why she did not order plaintiff
to pay the support through probation as specifically provided by
N.J.S.A. 2A:17-56.8 and Rule 5:7-4(b). This appeal followed.
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On appeal, defendant primarily argues that the judge should
have conducted a plenary hearing before deciding the motion. We
agree.
Plenary hearings are not required "in every contested
proceeding . . . relating to [] support." Shaw v. Shaw, 138 N.J.
Super. 436, 440 (App. Div. 1976). However, a plenary hearing is
necessary where, as here, there are genuine issues of material
fact that bear on a critical question. Lepis v. Lepis, 83 N.J.
139, 159 (1980). In this case, the parties each submitted detailed
certifications and financial records that completely contradicted
each other on the question of how much child support plaintiff
owed defendant. Under these circumstances, the judge should have
conducted a plenary hearing to address all of the issues raised
in the parties' conflicting submissions.
Therefore, we reverse the judge's determinations as to the
amount of plaintiff's arrears, the denial of counsel fees, and the
denial of defendant's request for payments to be made through the
county probation department. Plaintiff shall continue to pay his
$637 monthly child support payment, and his $500 per month payment
toward arrears, in the manner set forth in the January 13, 2017
order pending the completion of the remand proceedings. We remand
for a plenary hearing that shall be completed within ninety days
of the date of this opinion. At the plenary hearing, the parties
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may update their financial information by submitting new Case
Information Statements and any other documentation concerning
plaintiff's support obligation.
Finally, we address defendants request that the remand
proceedings be conducted by a different judge. Appellate courts
have the authority to direct that a case be assigned to a new
judge upon remand. N.J. Div. of Youth & Fam. Servs. v. A.W., 103
N.J. 591, 617 (1986). However, we exercise this authority
"sparingly[,]" especially in a case where the record reflects that
the judge did not make credibility determinations or "there is a
concern that the . . . judge has a potential commitment to his or
her prior findings." Graziano v. Grant, 326 N.J. Super. 328, 349-
50 (App. Div. 1999). Applying this standard, we discern no basis
to remand this matter to a different judge. Thus, we direct the
presiding judge to assign the case as he or she sees fit.
Reversed and remanded. We do not retain jurisdiction.
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