Opinion
DOCKET NO. A-1815-14T3
02-08-2016
JOSEPH RETO, Plaintiff-Respondent, v. SHARON RETO, Defendant-Appellant.
Sharon Reto, appellant pro se. Joseph Reto, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1410-04. Sharon Reto, appellant pro se. Joseph Reto, respondent pro se. PER CURIAM
Defendant appeals from an October 3, 2014 post-judgment order denying her request to "add recalculated child support to arrears" and the denial of her motion for reconsideration. Because we agree that the trial judge made a computational error based on a misreading of a prior order entered by another judge, we modify and exercise our original jurisdiction to correct the total of arrears owed and bring this decade-old dispute to an end. See R. 2:10-5; Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div. 2009).
The parties divorced in 2004 after a lengthy marriage and have since that time engaged in extensive motion practice, without counsel, over child support and the payment of education expenses and other items necessary for the support of their two children. Both children were emancipated several years ago.
In August 2014, plaintiff filed a motion seeking termination of his arrears payments and restitution for sums allegedly overpaid defendant. Specifically, plaintiff contended he overpaid child support from 2005 until 2009 as the children were receiving government benefits during that period because the Social Security Administration had deemed him disabled. He also argued he was entitled to a $4400 credit for insurance and other payments he made on behalf of the parties' daughter.
Defendant cross-moved for recalculated support payments to be added to plaintiff's arrears. She contended she was owed an additional $5120 in arrears, consisting of child support owed for the parties' son in 2008 and 2009 and $4500 in arrears owed for their daughter pursuant to a prior order. Accordingly, she was seeking an additional $9620 to be added to plaintiff's arrears balance.
The court denied both motions. In a lengthy statement of reasons, the court traced orders going back over four years issued by two other judges in order to calculate plaintiff's arrears as of September 2014. The court began with two key provisions underlying an order issued by Judge Terrence Flynn on February 24, 2010; that plaintiff was current in his obligations as of January 2008, and because plaintiff had overpaid support during the time the children were receiving government benefits, which ended when each child turned eighteen, Judge Flynn "forgave" $4500 in child support for the parties' daughter plaintiff would have otherwise owed under a consent order the parties signed in 2007. Relying on that prior order, the judge denied plaintiff's request to again be credited with overpayments on account of the children's receipt of government benefits during their minority.
The judge also denied plaintiff's request for a $4400 credit for sums owed to reimburse the children's college accounts. Although the court acknowledged the sums for which plaintiff sought credit benefited the daughter, the court denied the credit because plaintiff had failed to prove he was not obligated to pay those expenses on her behalf and thus that taking the money from her college account was proper.
The court denied defendant's request for the $4500 in support owed for the parties' daughter because that sum was wiped out by Judge Flynn's February 24, 2010 order, as confirmed in a May 23, 2014 order by Judge Kondrup Coyle. The court also denied defendant's request for arrears on account of support owed for the parties' son prior to July 2009 when he turned eighteen because no support was due for that period per Judge Flynn's order of February 24, 2010, as noted in Judge Kondrup Coyle's order of May 23, 2014.
After examining the prior orders, the judge concluded plaintiff's total arrears from January 2008 through the May 23, 2014 order were $22,456.21 (based on Judge Kondrup Coyle's order calculating plaintiff owed $6680 in child support and $15,776.21 to the children's college accounts). She determined that Probation misread Judge Kondrup Coyle's order by adding that $22,456.21 sum to the arrears plaintiff owed as of May 2014. Crediting plaintiff with payments of $11,770 since February 2010, the judge found plaintiff was currently in arrears in the amount of $10,686.21 ($22,456.21 - $11,770). Accordingly, although she denied both motions, the judge significantly reduced plaintiff's arrears balance by finding Probation had misconstrued the May 23, 2014 order. The judge also ordered probation to audit the account.
Both parties moved for reconsideration. Plaintiff claimed that Probation's records were fraught with errors and that adjustments made in 2010 and 2012 were improper. Defendant abandoned her claim for the additional $9620 and instead claimed the court erred in finding, contrary to Judge Kondrup Coyle's order, that plaintiff's total arrears were $22,456 in May 2014. Defendant contended that doing so failed to account for $2450 in prior support arrears, a $4150.74 payment she made for their daughter's tuition and a $600 credit provided to plaintiff. Relying on the audit Probation performed in accordance with the court's order, she claimed plaintiff's arrears were not $10,686.21 as of the date of the order but $17,886.95. The court denied both motions.
Defendant appeals, renewing her contention that the proper amount of arrears as of October 2014 was $17,886.95. Having reviewed the orders entered by Judge Flynn and Judge Kondrup Coyle as well as Probation's October 2014 audit, we agree.
The motion judge erred in concluding that Probation misconstrued Judge Kondrup Coyle's May 23, 2014 order. That order made clear that recalculated child support of $6680 was to "be added to the arrears balance" along with the $15,776.21 plaintiff owed for the children's college accounts, and that Probation was to "adjust the account accordingly." Defendant is correct that treating the $22,456 total as the only amount due as of May 2014 deprived her of $2450 in prior support arrears, a $4150.74 payment she made for their daughter's tuition and a $600 credit already provided to plaintiff. This can be demonstrated by totaling the obligations plaintiff was ordered to pay and subtracting his payments and court ordered credits.
The error is three-fold. First, Judge Kondrup Coyle's calculation of $6680 in total child support owed by plaintiff as of May 2014 netted out $2450 previously added to plaintiff's arrears by Judge Flynn's order of February 24, 2010. So treating the $6680 as the only child support owed instead of the amount to be added to arrears fails to account for that $2450. Second, Judge Flynn ordered plaintiff to reimburse defendant for a $4150.74 tuition payment she made for the parties' daughter. That figure was separate and apart from the $15,776.21 Judge Kondrup Coyle ordered plaintiff to repay to the children's college accounts and is thus unaccounted for in that figure as acknowledged by the judge in her statement of reasons accompanying the May 23, 2014 order. Together those two sums make up the $6600.74 in arrears Judge Flynn ordered added to the Probation account in February 2010. Third, the $600 credit is a result of an error in Probation's account of plaintiff's payments. Judge Kondrup Coyle addressed this credit in the statement of reasons accompanying the May 23, 2014 order. Plaintiff erroneously made three $200 payments to Probation instead of to the college accounts. To resolve the discrepancy, the court reduced the amount owed to those accounts by $600 (taking that number to $15,776.21) and included it in plaintiff's arrears for child support. Probation made the adjustment to arrears but failed to deduct it from the "paid to custodian" column, thereby erroneously including the $600 in the $11,770 in payments the court deducted from the $22,456 to get to its arrears figure of $10,686.21. Applying the credit as Judge Kondrup Coyle directed makes clear that plaintiff's payments toward arrears total $11,170 and not $11,770.
The parties' 2007 consent order fixed child support for both children at $750 per month. In his February 24, 2010 order, Judge Flynn determined that plaintiff owed child support for each child of $375 per month from the time each turned eighteen, when they stopped receiving government benefits, until each was emancipated. The parties' daughter turned eighteen in July 2007 and was emancipated in January 2009. As determined by Judge Flynn, however, plaintiff was current in his obligations as of January 1, 2008. Therefore, plaintiff owed child support for his daughter from January 2008 to January 2009 totaling $4500 ($375/month x 12 months = $4500).
The parties' son turned eighteen at the end of July 2009 and was emancipated at the beginning of June 2011. Thus, plaintiff's child support obligation for his son totaled $8250 ($375/month x 22 months = $8250). Judge Flynn also ordered plaintiff to pay health insurance of $40 per month for his son through his emancipation for a total of $880 ($40/month x 22 months = $880).
In addition, plaintiff was ordered to reimburse defendant for the check she wrote for their daughter's tuition ($4150.74), and to reimburse his daughter's college account in the amount of $11,551.21 and his son's account in the sum of $14,825. Thus, plaintiff's total obligations for both children starting on January 1, 2008 amounted to $44,156.95 ($4500 + $8250 + $880 + $4150.74 + $11,551.21 + $14,825 = $44,156.95).
Plaintiff's payments and credits against those obligations were as follows: $10,600 to the children's college funds, $11,170 to Probation, and the $4500 credit Judge Flynn awarded against plaintiff's child support obligation for his daughter, for a total of $26,270 ($10,600 + $11,170 + $4500 = $26,270). Subtracting payments and credits of $26,270 from total obligations of $44,156.95 leaves a balance due of $17,886.95 ($44,156.95 - $26,270 = $17,886.95).
Although plaintiff claims error in the court's calculations, he has not appealed from the court's orders. Accordingly, we do not address his claims. We note, however, that his central argument that he no longer owes defendant any money because the amount he paid exceeds the peak amount of the deficit is meritless. The question is whether the total amount he paid exceeds the total amount he owed. As we have concluded that it does not for the reasons explained, we reject his contention that his debt has been fully discharged.
We modify the orders of October 3, and November 14, 2014 and remand for the entry of an order fixing plaintiff's arrears as of October 2014 in the sum of $17,886.95 consistent with this opinion and directing Probation to adjust its account accordingly. In all other respects, we affirm the motion judge's rulings. We do not retain jurisdiction.
Modified and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION