This message has been cross posted to the following Discussions: Appellate Practice Committee and Family Law .
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I received a surprising Appellate decision yesterday and need to take the issue further. I've been to the Supreme Court once (Pasqua v. Council), but that was based on a dissent in the Appellate Division so there was no question about them taking it (and once on an emergent application to reverse an App Div denial of a stay).
This case is not of the same dimension as far as social importance to a large group of people, but it's devastating to the client and is upsetting to me because of the scope of the error.
The was a simple child support matter. The trial judge copied the wrong numbers from the parties' paystubs. It's 100% uncontested what mom earns - everyone is a W2 employee - her paystubs show $2019 per week. The trial judge put $1549. It's also 100% uncontested that he has over 104+ overnights per year. The Child Support Guidelines (CSG), both in the divorce judgment and a subsequent review order, are both on shared parenting worksheets. There is and has never even been an allegation that he doesn't exercise at least this much time with the child. Without explanation, the trial judge ran it on sole parenting worksheet, crediting him for only 52 overnights. It's also 100% uncontested that Wife has no additional cost for medical insurance (provided free for family when she buys it) and that she agreed not to seek a credit for it. A subsequent recalculation again clarified specifically that she doesn't get a credit for this. Again without a request by anyone to do so, the trial judge copied the cost for insurance from her paystub and credited it. The trial court copied numbers incorrectly, that's all there is to it. (Client was pro se and retained me after the deadline for filing a reconsideration motion, and I didn't want to file a Rule 4:50-1 motion, which wouldn't toll the time for appeal and would've required him to meet a high standard which doesn't include an error).
The end result was a support order of $272 per week (specifically stating it was based on the CSG). The correct CSG amount is $162. That's $6000 per year over what he should be paying. The child is ten years old, and if this error continues (which I believe would be "law of the case" on the numbers), he's potentially going to overpay support by $48,000 - $64,000.
There is no question that a court can depart from guidelines upon good cause shown. But, here, no one asked the trial court to do so. Moreover, there are no grounds to deviate - it's completely cookie-cutter. The trial court said it was applying the guidelines and it doesn't. There's no credibility calls here, it's all documents.
Without extending this email, the Appellate division dramatically misstates my arguments in affirming. I've never seen this happen before. I argued X and they say "defendant argues Z" in the opinion. It's not even close. I've pulled the cases the decision cites, and, respectfully, they're not even in the universe of being on point (the App Div cites cases involving extraordinarily high incomes, trusts for children with disabilities, etc - absolutely and completely irrelevant).
The biggest concern is getting the Supreme Court to look at it.
I think (hope) it's in our favor that the brief is very short. The entire Appellate Brief from Procedural History through Conclusion is 13 pages long -- which was more than enough to set out the facts and the errors: http://dpdlaw.com/Kummarapurugu_AppBrief_Feb_2015.pdf . The pro se responding brief is 20 pages: http://dpdlaw.com/Kummarapurugu_AppRespondentBrief.pdf and the Reply brief is nine pages: http://dpdlaw.com/Kummarapurugu_AppReplyBrief.PDF . The Appellate Decision is seven pages: http://dpdlaw.com/Kummarapurugu_AppDiv_May_21_2015.pdf. The whole thing can be read from soup to nuts in well under an hour.
I would also hope that, even if it's "just one person", it's unfair. Mom earns $105,000 per year - she's not struggling and in need of the support. Dad isn't rich at $143,000 (these are pre-support - after even the correct support is factored in, Mom is at about $114,000 and dad at $135,000).
The error is astoundingly plain and revealed by even a quick read. The App Div is saying I'm arguing something I never raise. They also (therefore) never address the issue I did raise.
Questions:
1. With an opinion this far off, I doubt a reconsideration motion to the App Div would be successful -- but would it increase even slightly the chances that the Supreme Court will take it when I get the check box "DENIED" order? I'll jump through that hoop if it increases the odds that the Supreme Court will take it.
2. I'm not looking to turn it into a fiasco - I can't imagine taking the Supreme Court's time to orally argue it. Is there some way to apply for certification and summary reversal? File my Notice of Petition for Certification along with a motion for summary disposition or, in the alternative, remanding to the Appellate Division with instructions?
If anyone clerked for the Supreme Court, I'll put you "on the clock" to give me an hour on this if it's not simple or more information is needed or if there's some important arguments to get the SCT to look at it.
Any thoughts at all from anyone would be appreciated. I've never before had an Appellate decision like this. Win or lose, they usually make sense. This one just doesn't.
THANKS!
David Perry Davis, Esq.
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