LAMAR ENTERPRISES, LLC, Plaintiff-Respondent,
v.
SES PROPERTIES, LLC and WILLIAM SPENCER, t/a SMOOTHIE FACTORY, Defendants-Appellants.No. A-4976-11T4.
Submitted March 19, 2013. Decided April 30, 2013.
Ryan A. Dornish, attorney for appellants.
Clifford J. Weininger, attorney for respondent.
Before Judges Alvarez, Waugh and St. John.
NOT FOR PUBLICATION
PER CURIAM.
On July 22, 2011, plaintiff Lamar Enterprises, LLC, obtained a judgment by default in the amount of $108,804.51 against its former tenant SES Properties, LLC, and William Spencer, trading as Smoothie Factory. The judgment was docketed on August 17, 2011, and a writ of execution issued October 20, against Spencer. Defendants filed a motion objecting to the garnishment, seeking a stay of execution, and a hearing to address the amount of the judgment. The court denied the application and the subsequent motion for reconsideration. We affirm for the reasons stated by Judge Robert J. Brennan in his well-reasoned analysis rendered from the bench. We add the following very brief comments.
Spencer, in addition to his wages, operates two businesses and owns a commercial building. He nets $4068.96 per month (calculated on 4.3 weeks each month) from his salary at a full-time job. Pursuant to the terms of his divorce, he pays limited duration alimony, child support, and equitable distribution in the amount of $3947.66 monthly. He is current on that obligation. It is not paid by garnishment, or even through the probation department.
At the beginning of oral argument on the motion, defendants' attorney advised the court that Spencer was available by phone to testify. Judge Brennan declined the offer pursuant to Rule 1:6-2, which requires facts not of record, or cognizable by judicial notice, to be submitted on motions in affidavits or certifications.
On reconsideration, defendants argued that the court erred by refusing to allow Spencer to participate via telephone. Defendants raise the same arguments on appeal as they did before the trial court. They are:
POINT 1
PLAINTIFF HAS FAILED TO MITIGATE DAMAGES SO THE WAGE EXECUTION SHOULD BE DISMISSED
POINT 2
DEFENDANTS CANNOT AFFORD THE WAGE EXECUTION AND THEREFORE IT SHOULD BE MODIFIED AND/OR DISMISSED
POINT 3
A PERSON CANNOT BE SUBJECT TO MORE THAN ONE WAGE GARNISHMENT AT A TIME. N.J.S.A. 2A:17-52(a)
POINT 4
THE JUDGE ERRED IN MAKING FACTUAL AND LEGAL FINDINGS
Judge Brennan correctly noted that defendants could not, post-judgment, directly attack the merits of the judgment. Defendants had an opportunity to file an answer, or take an appeal, and did neither. Having failed to avail themselves of those options, they did not even file a motion to set aside the judgment pursuant to Rule 4:50-1. The court therefore correctly refused to entertain the argument.
The trial judge also observed that Spencer's asserted inability to afford the amount of the wage execution was not clearly established. Mathematically, it is reasonable to conclude that Spencer has other substantial income from which he is maintaining his divorce obligations. Spencer operates a septic pump business, a snow removal business, and owns a commercial building, in addition to holding down a job. Furthermore, the wage deductions from his employment were not proven to be involuntary in nature. His pay stub included deductions totaling $903.14 for health contributions, pension, loans, dues, and credit union. Therefore, Spencer's proofs simply failed to demonstrate any inequity in the wage garnishment.
Judge Brennan did not credit Spencer's argument that he was being subjected to a "de facto" second wage garnishment because of his matrimonial obligations. That argument is so lacking in merit as to warrant no further discussion in a written opinion. R. 2:11-3(e)(1).
Finally, we find no error in the judge's rejection of Spencer's motion for reconsideration, premised on the notion he should have been allowed to testify telephonically with regard to his pay and income. As the judge pointed out, on motions, Rule 1:6-2 does not permit facts to be established other than through an affidavit or certification. Hence the judge did not err in declining to allow Spencer's telephonic participation to answer questions that might arise during the hearing.
"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In this instance, the trial court's reasoned conclusion, in our view, correctly applied the law to established facts. Motions for reconsideration will be granted only where the court has failed to consider evidence, has rendered a decision based on plainly incorrect reasoning, or failed to correctly apply the law. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). The court in this case considered the evidence, analyzed the matter fairly, and correctly applied the law.
Affirmed.
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