Opinion
DOCKET NO. A-2779-10T3
03-14-2013
JOHN J. POPE, SR., Plaintiff-Appellant, v. DEBRA POPE, n/k/a KAMINSKY Defendant-Respondent.
John J. Pope, Sr., appellant pro se. Debra Pope, respondent pro se, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli, Koblitz and Accurso.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-12851-89.
John J. Pope, Sr., appellant pro se.
Debra Pope, respondent pro se, has not filed a brief. PER CURIAM
In this post-judgment matrimonial matter, plaintiff John J. Pope, Sr. (John) appeals from those parts of five Family Part orders, which modified his child support obligation and awarded child support arrears and counsel fees to defendant Debra Pope (Debra). On appeal, John raises the following arguments:
We use the parties' first names to identify them. We mean no disrespect in doing so.
I. COURT ERRED IN INCREASING PLAINTIFF'S CHILD SUPPORT OBLIGATION RETROACTIVELY, WITHOUT JUSTIFICATION, CHANGE IN CIRCUMSTANCES OR ADEQUATE FINDING OF FACT OR CONCLUSIONS OF LAW.
II. COURT ERRED IN ORDERING CHILD SUPPORT OF $126 WEEKLY FOR [J.P.] AFTER EMANCIPATION OF [R.P.] AS OF JUNE 30, 2005.
III. COURT ERRED IN FIXING CHILD SUPPORT ARREARS AT $39,195.07.
IV. COURT ABUSED DISCRETION IN DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF JULY 23, 2010 AND ERRED IN HOLDING THAT ORDER OF JANUARY 7, 2000 IS UNENFORCEABLE.
V. COURT ERRED BY NOT ALLOWING CHILD SUPPORT CREDITS FOR PAYMENTS AND CREDITS MADE PREVIOUSLY.
VI. COURT ABUSED DISCRETION BY JOINING LINDA GRAVES TO THE MATTER AS A FIDUCIARY.
VII. COURT ABUSED DISCRETION BY AWARDING $4000 IN COUNSEL FEES TO DEFENDANT'S COUNSEL.
VIII. COURT ERRED IN REJECTING LACHES AS A VALID DEFENSE IN THIS MATTER.
Although both children are now adults, we use initials to protect their identities.
John's contention in Point VIII is legally insufficient under the facts of this case. Laches cannot vitiate the children's independent right to support. L.V. v. R.S., 347 N.J. Super. 33, 39-40 (App. Div. 2002); see also Colca v. Anson, 413 N.J. Super. 405, 420 (App. Div. 2010) (holding that the right to receive child support cannot be waived by a custodial parent). Accordingly, we decline to address Point VIII. As for John's remaining contentions, we affirm in part, reverse in part, and remand for further proceedings.
We derive the following facts from the record. The parties were married in January 1983, and have two children, R.P., born in 1983, and J.P., born in 1987. A property settlement agreement (PSA), incorporated into the final judgment of divorce, required John to pay child support in the amount of $266.67 bi-weekly. The PSA also provided for annual child support increases based on the net increase in John's salary and holiday bonuses. Child support would continue until each child's emancipation, which the PSA defined as the completion of four consecutive years of undergraduate school, marriage of the child, or entry of the child into the armed forces. Sometime thereafter, the court increased child support to $355 bi-weekly.
On July 20, 1999, John filed a pro se motion, seeking to terminate child support as of May 25, 1999 (the July 1999 motion). John certified that he had been incarcerated as of May 25, 1999, on charges of attempted murder, terminated from his employment for cause on May 27, 1999, being evaluated and treated for a mental illness, had applied to the Social Security Administration (SSA) for disability benefits, and voluntarily surrendered his medical license. He claimed to have outstanding debts in excess of $120,000 and no assets.
John also sought other relief not relevant to this appeal
John served the motion papers on Debra, who subsequently retained an attorney to represent her. John then retained an attorney, and the two attorneys engaged, unsuccessfully, in settlement discussions.
John proceeded with his motion and submitted a supplemental certification. He again asserted he was incarcerated as of May 25, 1999, and also asserted that on October 12, 1999, the SSA determined he became permanently disabled on May 25, 1999, and awarded him $826 in monthly Social Security disability (SSD) benefits commencing November 1999. He claimed the SSD benefit was his only source of income at the time, and argued that child support should be reduced to between $68 and $72 per week based on the New Jersey Child Support Guidelines (Guidelines). He also argued that because the children would receive one-half of his SSD benefit, or $96 weekly each, he was entitled to a credit. Debra never opposed the motion.
The court did not terminate child support, as John had originally requested in his motion papers. Instead, in a January 7, 2000 order, the court temporarily reduced child support as follows: "Final judgment of divorce is hereby modified so that [John's] total financial obligation to [Debra] shall be reduced to $413.00 monthly so long as [John] remains incarcerated or otherwise modified by order. The stated sum representing 50% of [John's] Social Security Disability benefit." (the January 7 order) A January 20, 2000 order made the reduction effective July 20, 1999. John did not request clarification of or challenge either order.
In a February 25, 2000 letter to Debra, John stated as follows, in pertinent part:
As per my letter dated 7/9/99, child support was paid in full, through 5/25/99 with check #414, in the amount of $1359.88, from my wife Dr. Linda Graves.The letter did not indicate that John had served the January 7 and January 20 orders on Debra.
Enclosed find check #3661, dated 2/25/00 in the amount of $1420.00, for the period 5/26/99 through 7/20/99. July 20, 1999 was the date that the original Superior Court order, FM-12851-89 was modified.
For the 103 day period between 7/21/99 and 11/1/99 I owe the sum of $96.04 per week. This figure is based upon the $413 per month Social Security benefit for the children, at 4.3 weeks per month. Based
upon this calculation, the total for that period is $1413.16. Enclosed you will also find check #3662, dated 2/25/00 in the amount of $1413.16 to satisfy that amount.
As per Social Security, each of the [children] will receive $211.00 per month, retroactive to 11/1/99. My financial obligation, as modified by order of the Superior Court of NJ, Chancery [D]ivision, [F]amily [P]art, Essex [V]icinage is $413.00, which is met by the monthly total of $422.00 from Social Security for the [children].
. . . .
As payment in full is enclosed, and satisfies any arrears that may have accrued, and future child support payments will be satisfied by the [children's] monthly Social Security benefit (from my family benefit total) there should be no further correspondence with regard to this matter.
John's incarceration ended in June 2001. On December 9, 2009, Debra filed a motion, seeking child support arrears from June 1999 to December 2009. At that time, R.P. was emancipated and J.P. lived in New Jersey where he had been attending college since the fall of 2005.
Debra certified that John never served her with, and she had no notice of, the July 1999 motion, she did not know the motion was heard, and had no notice of the January 7 order. She claimed, incorrectly, that child support had increased to $500 bi-weekly, John stopped paying child support upon his incarceration in May 1999, and he was to resume paying $355 biweekly when his incarceration ended in June 2001. She admitted the children had received the $413 monthly SSD benefits.
Debra later conceded that child support remained at $355 biweekly after John's incarceration ended.
On February 3, 2010, John filed a cross-motion, seeking to deny Debra's motion and for attorney's fees. He argued that the doctrine of laches barred Debra's request for child support arrears; the children received $38,609 in SSD payments from November 1999 to June 2005, which exceeded the $413 monthly child support the January 7 order required; he was entitled to a credit for the excess amount; and J.P was emancipated since June 2005.
The matter was assigned to a different judge. At oral argument, the judge interpreted the January 7 order as reducing child support to $413 monthly as long as John was incarcerated and reverting to $355 bi-weekly when his incarceration ended. John's attorney did not disagree that the January 7 order reduced child support to $413 monthly as long as John was incarcerated. Counsel argued that the judge should liberally interpret the word "incarceration" and find that John was effectively incarcerated after June 2001, based on certain restrictions the court had placed on him, which were tantamount to being under house arrest.
The judge rejected John's laches argument and declined to liberally construe the word "incarceration." The judge also determined that John was entitled to a credit for the SSD payments the children had received. In a February 19, 2010 order, the judge held that child support was $413 monthly during John's incarceration and reverted to $355 bi-weekly when his incarceration ended in June 2001. The judge awarded John a $38,609 credit for SSD payments made to the children from 1999 to 2005, and emancipated R.P., effective June 30, 2005. The judge did not emancipate J.P at the time, and adjourned the matter to allow the parties to submit briefs and calculations of the amount of the child support arrears.
Debra eventually conceded that John was entitled to this credit.
In her submissions, Debra argued that N.J.S.A. 2A:17-56.23 precluded a retroactive modification of child support; child support was $355 bi-weekly after John's incarceration ended; and J.P. remained unemancipated as per the PSA and applicable caselaw. Debra also submitted her calculation of the arrears. Giving John the $38,609 credit, she claimed the arrears totaled $30,661.67.
In his submissions, John argued that child support remained at $413 monthly after his incarceration ended because he was permanently disabled and his income never changed. He also asserted that his child support payments were current to November 1, 1999; caselaw permits a retroactive child support modification for R.P.'s emancipation; J.P. should also be deemed emancipated, effective June 30, 2005; and he should receive an additional $7,441.53 credit for expenses he paid for J.P. John also submitted child support arrears calculation and argued that with the two credits, there were no arrears.
In response, Debra argued that John's child support was not current to November 1, 1999. She conceded that she had received check #414 for $1,359.88 in July 1999, which brought his child support payments current to May 25, 1999. However, she claimed that the two checks John allegedly sent her in February 2000, check #3661 for $1420 and check #3662 for $1,413.16, were not for child support.
John had provided a copy of the cancelled check to the judge, which indicated that Debra had signed and cashed it.
The judge found that John's child support payments were current through May 25, 1999. The judge also found that John failed to submit competent proof that checks #3661 and #3662 were addressed, received and cashed by Debra, or that they were for child support.
The judge also held that J.P. remained unemancipated and child support had to be recalculated retroactively to June 30, 2005, the effective date of R.P.'s emancipation. The judge declined to recalculate child support based on John's SSD income, finding that John had never filed a motion to reduce child support based on his income. Relying on the Guidelines, the judge held that the $355 bi-weekly child support amount should be reduced to $126 per week for J.P. from July 1, 2005 to February 3, 2010. In an April 1, 2010 order, the judge denied John's motion to emancipate J.P., and set child support subject to the Court's consideration of Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995).
John does not challenge this decision.
The judge subsequently reviewed the parties' case information statements. Based on their respective incomes and the Guidelines, in a May 7, 2010 order, the judge reduced child support to $17 weekly, effective February 3, 2010, the date of John's cross-motion. The judge also determined that Bishop did not apply and he would adjust child support arrears in accordance with the February 19 and April 1, 2010 orders.
On May 25, 2010, John filed a motion for reconsideration, contending for the first time that he had based his July 1999 motion on his permanent disability and change in financial circumstances, not his incarceration. He argued that child support should have remained at $413 monthly after his incarceration ended based on his SSD income. He also asserted that the judge erroneously interpreted the January 7 order; erred in concluding that John did not previously file a motion to reduce child support based on his income; and should have recalculated child support based on his current income as required by Bishop. John also argued that he did not receive a proper credit, and the judge did not rule on his request for credit for the expenses he paid for the children. His attorney argued for the first time at oral argument of the motion that the January 7 order required child support to remain at $413 monthly because it was not modified by court order.
Bishop requires the court to recalculate child support based on the parties' income at the time of emancipation. Bishop, supra, 287 N.J. Super. at 604-05.
Before deciding the motion, in a June 1, 2010 order, the judge calculated child support arrears at $77,804.08 as follows: (1) $10,325 for the period June 1, 1999 to June 30, 2001 at $413 monthly; (2) $37,046.79 for the period July 1, 2001 to June 30, 2005 at $355 bi-weekly; (3) $30,204 for the period July 1, 2005 to February 2, 2010 at $126 weekly; and (4) $228.29 for the period of February 3, 2010 to May 7, 2010 at $17 weekly. The judge awarded John a $38,609 credit and set arrears at $39,195.07 for the period June 1, 1999 to May 7, 2010. The judge continued child support for J.P. at $17 weekly.
On June 9, 2010, Debra filed a cross-motion, seeking a recalculation of child support for J.P., to join Graves in the matter, and counsel fees. In a July 23, 2010 order, the judge emancipated J.P. and terminated child support, effective May 21, 2010, and reserved judgment on the remaining issues.
In a September 20, 2010 order and written opinion, the judge denied the motions, except he awarded John an additional $1775 credit. The judge rejected the new argument John's attorney's raised at oral argument that the January 7 order required child support to remain at $413 monthly unless modified by court order. The judge determined that the January 7 order was unenforceable because there was no evidence it was served on Debra. Nonetheless, because John's attorney had previously agreed with the judge's interpretation that the January 7 order set child support at $413 monthly as long as John was incarcerated, the judge accepted that figure.
The parties subsequently agreed to vacate this credit
The judge also declined to recalculate child support for J.P. based on Bishop, reasoning that N.J.S.A. 2A:17-56.23a prohibited retroactive modification of child support prior to the time John filed his cross-motion in February 2010. Relying on the Guidelines, the judge confirmed that child support was $126 weekly.
On October 12, 2010, John filed a motion for reconsideration and for a stay. Debra filed a cross-motion, again seeking to join Graves in the matter personally and as John's fiduciary.
John had indicated that Graves was acting in a fiduciary capacity collecting and disbursing his funds.
In a January 11, 2011 order and oral opinion, the judge denied John's motion, finding that John's attorney's agreement with the judge's interpretation of the January 7 order judicially estopped John from arguing that child support remained at $413 monthly after his incarceration ended. The judge also found there was no proof that Debra had received the January 7 order.
The judge denied Debra's request to join Graves in the matter without prejudice; however, he permitted Debra to issue an information subpoena to Graves "in [Graves's] fiduciary capacity as [John's] representative payee only, regarding her management of [John's] finances." The judge also awarded Debra $4000 for counsel fees based on the parties' respective incomes. This appeal followed.
I.
In Point I, John contends that the judge erred in retroactively increasing child support to $355 bi-weekly without conducting a Lepis analysis. In Point III, he contends the judge erred in awarding child support arrears based on an income he was earning prior to his disability. In Point IV, he contends the judge erred in denying his May 25, 2010 motion for reconsideration. He argues that his July 1999 motion was based on his permanent disability and change in financial circumstances. He argues that the first judge entered the January 7 order based on his disability, as evidenced by the second sentence in the order stating that $413 monthly amount represented fifty-percent of his SSD benefit. He also argues that the judge misinterpreted the January 7 order, and failed to adequately consider the second sentence.
Lepis v. Lepis, 83 N.J. 139 (1980).
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"'The trial court has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)). "'Of course, the exercise of this discretion is not limitless[,]' and remains guided by the law and principles of equity." Ibid. (quoting Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part and modified in part, 183 N.J. 290 (2005)). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). However, "we are not bound by '[a] trial court's interpretation of the law' and do not defer to legal consequences drawn from established facts." Id. at 116-17 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
We discern no error in the judge's award of child support arrears. We agree with the judge's interpretation of the January 7 order, and are satisfied that the first judge had temporarily reduced child support to $413 monthly based on John's incarceration, not on his permanent disability or SSD income. Had the first judge intended otherwise, there would have been no need for the language that child support was reduced "so long as [John] remains incarcerated." There also would have been no need for the language "or otherwise modified by order," which clearly indicated the judge intended the $413 monthly amount would not continue after John's incarceration ended unless set by a subsequent order. There was no subsequent order because John never filed a motion to continue child support at $413 monthly after his incarceration ended based on his income. Accordingly, the second judge was correct that child support reverted to $355 bi-weekly after John's incarceration ended. Because John never filed a motion to continue child support at $413 monthly after his incarceration ended, there was no need for a Lepis analysis. John was required to pay $355 bi-weekly beginning July 1, 2001.
II.
In Point II, John contends that because J.P. was eighteen years old and had graduated high school, the judge erred in using the Guidelines to recalculate child support at $126 weekly after R.P.'s emancipation. J.P. turned eighteen in February 2005. The judge set the $126 weekly child support amount in April 2010. Thus, we agree that the judge erred in using the Guidelines to recalculate J.P.'s child support. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2562 (2013).
We conclude, however, that the error was harmless. The June 21, 1995 consent order required John to pay $355 bi-weekly, or $177.50 per week per child. The PSA required child support to continue until the children's emancipation. Because we have determined that the January 7 order reverted child support to $355 bi-weekly after John's incarceration ended, and because we agree that John filed no motion to modify child support based on his income until February 2010, we conclude that John benefited from paying $126 weekly instead of $177.50 weekly.
III.
John contends in Point V that the judge erred by not awarding credit for the $1420 and $1,413.16 payments he made to Debra in February 2000, and not awarding a $7,441.53 credit for expenses he paid for J.P. The record confirms the judge's finding that John failed to submit competent evidence supporting the two payments. Accordingly John is not entitled to a credit for those payments.
However, the judge made no factual findings or legal conclusions with respect to the $7,441.53 credit John sought. A trial court's obligation to make findings of fact and conclusions of law is critical to an appellate court's "meaningful review." Ronan v. Adely, 182 N.J. 103, 110 (2004). Judges must make findings of fact and conclusions of law "in all actions tried without a jury, [and] on every motion decided by a written order that is appealable as of right." R. 1:7-4. This requires judges to articulate "specific findings of fact and conclusions of law." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2013). "Naked conclusions are insufficient. A judge must fully and specifically articulate findings of fact and conclusions of law." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). If sufficiently clear factual findings are absent from the record, we will reverse and remand to the trial court for additional findings. Curtis v. Finneran, 83 N.J. 563, 570-71 (1980). Accordingly, we reverse the award of child support arrears and remand for reconsideration of the $7,441.53 credit.
IV.
John contends in Point VII that the judge erred in awarding $4000 for counsel fees. An award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). Such exercise of discretion will not be disturbed in the absence of a showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). "Discretion, however, means legal discretion, 'in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)).
When reviewing an application for counsel fees, a court must "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. In a family action, Rule 4:42-9(a)(1) authorizes the award of counsel fees and refers to Rule 5:3-5(c), which provides that a court should consider the following factors:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.One relevant factor for the court to consider is whether a litigant has acted in "bad faith." The courts may not impose an award of fees to sanction a "bad faith" litigant, see Darmanin v. Darmanin, 224 N.J. Super. 427, 430 (App. Div. 1988), or to punish a "bad faith" litigant, see Chestone, supra, 322 N.J. Super. at 259, but only to remedy the additional and unnecessary costs imposed on the innocent party. Yueh v. Yueh, 32 9 N.J. Super. 447, 461 (App. Div. 2000).
Because the judge made no findings on the Rule 5:3-5(c) factors, we reverse the award of attorneys fees and remand for reconsideration.
V.
John's contention in Point VI, that the judge erred in joining Graves as a fiduciary, lacks sufficient merit to warrant discussion in a written opinion beyond this brief comment. R. 2:11-3(e)(1)(E). The judge did not join Graves as a fiduciary; the judge merely permitted Debra to serve an information subpoena on Graves in her "fiduciary capacity as [John's] representative payee only, regarding her management of [John's] finances."
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION