R.F. VS. J.S. (FM-21-0032-01, WARREN 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NOT FOR PUBLICATION WITHOUT THE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-0255-17T2
R.F.,
Plaintiff- Respondent,
v.
J.S.
Defendant-Appellant.
____________________________
Submitted November 29, 2018 – Decided June 13, 2019
Before Judges Whipple and DeAlmeida.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FM-21-0032-01.
J.S., appellant pro se.
R.F., respondent pro se.
PER CURIAM
Defendant J.S. (Father) appeals from the August 4, 2017 order of the
Family Part reducing plaintiff R.F.'s (Mother) child support arrearage to account
for $5000 in attorney's fees Father was ordered to pay Mother, and denying
Father's cross-motion to adjourn Mother's motion or, in the alternative, to enter
an order establishing a payment plan for the $5000. We affirm in part, reverse
in part, and remand for entry of an order directing Father to pay $5000 to Mother
by a date certain.
I.
Mother and Father were divorced in 2001. They are the parents of one
child. Initially, Mother was the primary caretaker, and Father had a child
support obligation to Mother. In 2014, the child had a falling out with Mother,
left her home, and moved in with Father. This change in circumstances resulted
in the parties seeking judicial resolution of a number of issues, including child
support.
Before these issues were resolved, the trial court, on August 30, 2016,
ordered Father to pay Mother $5000 in attorney's fees because of his bad faith.
To date, that payment has not been made. On January 5, 2017, the trial court
ordered Mother to make child support payments of $159 a week to Father to be
paid through wage garnishment and found that Mother had child support arrears
of $15,631, which accumulated while the child support issue was pending, to be
paid at $50 a week through wage garnishment until satisfied.
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On or about July 6, 2017, Mother moved to enforce litigant's rights,
requesting that the trial court reduce her child support arrearage by $5000 to
account for Father's unpaid attorney's fees obligation. Mother's notice of
motion, which requests oral argument, listed August 4, 2017 at 9:00 a.m. as the
return date and time of her motion.
Father opposed the motion and cross-moved for an order: (1) compelling
Mother to provide proof that she had actually paid the fees to her attorney; (2)
delaying resolution of Mother's motion to accommodate his vacation schedule
and to allow the parties to resolve their respective obligations for what he
alleged were outstanding medical and extracurricular activities expenses
incurred from 2014 through June 2017; or, in the alternative, (3) instituting an
installment payment plan in which Father would pay Mother $100 a month until
his $5000 attorney's fee obligation was satisfied. Father's notice of cross-
motion, which requests oral argument, lists August 4, 2017, at 9:00 a.m., as the
return date and time of the cross-motion.
On August 4, 2017, the date which both Mother and Father designated as
the return date of their motions, the trial court heard the motions. Mother
appeared; Father did not. The court stated on the record that it intended to grant
Mother's motion. In addition, the court stated about Father: "[h]e's made a
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3
motion for some unspecified or really vague reimbursement. So those may or
may not be legitimate, it's hard to tell. So, we're [going to] deny that application
without prejudice . . . so he may take another stab at that[.]"
In a written statement of reasons issued that day, the trial court found that
Mother had paid her attorney for the services she received, and that Father's
obligation to pay $5000 in attorney's fees remained outstanding. In addition,
the court concluded that Mother was $6926 in arrears on her child support
obligation and that her request for a reduction in her child support arrears of
$5000 to account for Father's outstanding attorney's fees obligation was
reasonable. The court granted Mother's motion.
The court also found that Father's request to delay resolution of Mother's
motion unreasonable because he had initially made a motion with respect to the
alleged expenses more than a year earlier and that motion had been denied
without prejudice. The court concluded that despite having had ample time to
compile the necessary evidence since the denial of his prior motion, Father had
not produced "any proofs, documentation, paid bills or the parties Property
Settlement Agreement, to substantiate his claims." Thus, the trial court denied
Father's cross-motion to delay Mother's motion with prejudice. An August 4,
2017 order memorializes the trial court's decision.
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This appeal followed. Father raises the following issues for our
consideration:
POINT I
SCOPE OF REVIEW
POINT II
THE TRIAL COURT COMMITTED AN ERROR
UPON ENTERING A WRITTEN ORDER DENYING
THE APPELLANT'S REQUEST FOR RELIEF WITH
PREJUDICE DESPITE THE ORAL DECISION OF
THE TRIAL JUDGE DENYING SAME WITHOUT
PREJUDICE, THUS THE ORDER SHALL BE
REVERSED.
POINT III
THE APPELLANT [SIC] RIGHT TO DUE PROCESS
WAS VIOLATED WHEN THE COURT FAILED TO
GIVE NOTICE AND OPPORTUNITY OF THE [SIC]
ORAL ARGUMENT, THUS DEPRIVING HIM THE
RIGHT TO BE HEARD.
POINT IV
THE RELEVANT LAW INDICATES THAT CHILD
SUPPORT BELONGS TO THE CHILD, THUS IT
CANNOT BE OFF-SET BY AN AWARD OF
ATTORNEY'S FEES.
II.
"[O]ur review of the Family Part's determinations regarding child support
is limited." Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 587 (App. Div.
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2016). "Because of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding."
Cesare v. Cesare, 154 N.J. 394, 413 (1998). "We 'do not disturb the factual
findings and legal conclusions of the [motion] judge unless we are convinced
that they are so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice.'"
Catabran, 445 N.J. Super. at 587 (alteration in original) (quoting Rova Farms
Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). While deference
is accorded to the trial court as to factfinding, its "legal conclusions, and the
application of those conclusions to the facts, are subject to our plenary review."
Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013) (citing Manalapan
Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995)). "The Family Part's
'substantial discretion' in determining child support applies equally to
compelling a parent to contribute to their child's . . . expenses." Catabran, 445
N.J. Super. at 588 (citing Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div.
2008)).
We begin with Father's argument that he was not notified that the court
would hold oral argument on the motion and cross-motion. Rule 1:6-2 and Rule
5:5-4 apply to the scheduling of motions in Family Part matters. Under those
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Rules, oral argument should ordinarily be granted when requested by a party.
S.M. v. K.M., 433 N.J. Super. 552, 557 n.5 (App. Div. 2013). Here, both Mother
and Father requested oral argument on their respective motions. The trial court
honored those requests and held argument on the date that both Mother and
Father indicated on their respective notices of motion.
Father argues that the trial court failed to provide additional notice to him
that argument would be held on that date. However, having been notified of the
return date of Mother's motion, and having selected the same date as the return
date of his cross-motion, Father had an obligation to either appear on that date,
or inquire with the court with respect to whether oral argument had been denied
or rescheduled. We find no error on the part of the trial court.
With respect to the trial court's decision denying Father's cross-motion,
we disagree with Father's argument that there is an inconsistency between the
trial court's oral statements on the return date of the cross-motion and its written
statement of reasons and order. It is well established that "appeals are taken
from orders and judgments and not from opinions, oral decisions, informal
written decisions, or reasons given for the ultimate conclusion." Hayes v.
Delamotte, 231 N.J. 373, 387 (2018) (quoting Do-Wop Corp. v. City of Rahway,
168 N.J. 191, 199 (2001)). However, "[w]here there is a conflict between a
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judge's written or oral opinion and a subsequent written order, the former
controls." Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498
(App. Div. 2002).
The trial court stated from the bench that Father had previously moved for
reimbursement of various child-related expenses. The court noted that the
validity of Father's request for reimbursement was unclear because he produced
no evidence in support of his prior motion. Although the court stated that it
intended to deny Father's reimbursement application without prejudice, it is
clear from the record that Father did not cross-move for reimbursement of any
expenses. He cross-moved only to delay resolution of Mother's motion to afford
the parties an opportunity to resolve the expense issue without judicial
intervention. Thus, the trial court's statement of reasons and order denying
Father's cross-motion with prejudice address only the relief Father sought in the
cross-motion, specifically the delay of Mother's motion, which the court
consistently stated would be denied with prejudice.
We find no fault in the substantive basis for the trial court's decision not
to delay resolution of Mother's motion. As the trial court noted, Father was
ordered to pay Mother $5000 in 2016. He did not comply with that order on the
grounds that he needed proof that Mother had paid her attorney, the order did
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not include a date by which he was to make the payment, and that other expenses
unrelated to the $5000 were unresolved. "The trial court's decision to grant or
deny an adjournment is reviewed under an abuse of discretion standard." State
ex rel. Com'r of Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7 (App.
Div. 2013). The trial court acted well within its discretion in denying Father's
cross-motion to delay Mother's motion.
We also disagree with Father's argument that the trial court's grant of
Mother's motion was contrary to N.J.S.A. 2A:17-56.23a. That statute provides
that "[n]o payment or installment of an order 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." N.J.S.A. 2A:17-56.23a.
The statute "was designed to comply with" the federal Omnibus Budget
Reconciliation Act of 1986, 42 U.S.C. §§ 666(a)(9)(C), which mandates that "as
a condition of receiving federal funding for collection of child support
arrearages, states must conform with various federal standards governing child
support." Bowens v. Bowens, 286 N.J. Super. 70, 71 (App. Div. 1995). "Those
requirements include that child support obligations may not be subject to
retroactive modification on and after the date that they are due." Mahoney v.
Pennell, 285 N.J. Super. 638, 642 (App. Div. 1995).
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The purpose of the provision is to ensure "that ongoing support obligations
that became due were paid." Id. at 643. Thus, for example, "[a] change of
circumstances, such as loss of a job, could . . . not be used as a basis to modify
retroactively arrearages which already accrued under a child support order."
Ibid. The statute, however, does not preclude application of a credit against
child support arrears in limited circumstances. See Diehl v. Diehl, 389 N.J.
Super. 443, 449 (App. Div. 2006) (applying credit to child support arrears that
accumulated contemporaneously with social security disability benefits paid to
a child).
The trial court's order does not retroactively reduce Mother's child support
obligation or retroactively reduce her child support arrearages. The court
instead applied a credit to Mother's arrearages for Father's unpaid obligation to
pay her attorney's fees. While we do not see the order as falling within the
express language of N.J.S.A. 2A:17-56.23a, we conclude that the reduction of
Mother's child support arrearage violates the intention of the statute. Father's
obligation to pay Mother $5000 is unrelated to the support of their child. It
represents a sanction for Father's bad faith and is intended to relieve Mother of
a portion of the attorney's fees she incurred in judicial proceedings in which
Father's bad faith was manifested. Unlike the circumstances presented in Diehl,
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the reduction in Mother's child support arrearages did not compensate for the
child's receipt of a separate source of income to provide for her care, thereby
reducing the obligor parent's child support obligation. It was error for the trial
court to apply Father's unpaid, and unrelated attorney's fees obligation as a credit
to Mother's child support arrears. We therefore reverse the trial court order
reducing Mother's child support arrearage.
We in no way suggest, however, that the trial court is powerless to enforce
its order to compel Father to pay Mother $5000 in attorney's fees. Several years
have passed since that sanction was imposed, without any effort by Father to
comply with the court's order. Mother is entitled to relief in aid of litigant's
rights with respect to the attorney's fees order. We therefore remand this matter
to the trial court to address Mother's motion to enforce litigant's rights.
Affirmed in part, reversed in part, and remanded for proceedings
consistent with this opinion. We do not retain jurisdiction.
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