Opinion
DOCKET NO. A-3018-13T1
03-09-2015
MARILEE RUBINO, Plaintiff-Respondent, v. MICHAEL A. RUBINO, Defendant-Appellant.
G. Aaron James, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-437-06. G. Aaron James, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Defendant Michael Rubino appeals from provisions of an order entered by the Family Part on February 12, 2014, which denied his request to enforce a provision of the property settlement agreement ("PSA") entered into with plaintiff; denied his applications for modifications to his child-support obligation; and refused to relieve him of obligations under the PSA for paying a share of the health care costs for the parties' children. We affirm.
I.
Plaintiff and defendant were married in 1988, and two children were born of the marriage. The parties separated in 2004 and divorce proceedings followed. The parties entered into the PSA resolving various issues in dispute, and the PSA was incorporated in the dual final judgment of divorce entered by the trial court on August 21, 2006.
Among other things, the PSA provided that the parties shall share joint legal and physical custody of the children until they are emancipated, with plaintiff having parenting time from Monday through Thursday of each week, and defendant having parenting time from Friday through Sunday. The PSA further provided that neither party would be required to pay child support, since they had approximately equal income and would share the children's expenses.
In addition, the PSA stated that in March 2005, sole ownership of the parties' property on Holdman Place in Millstone Township had been transferred to plaintiff, and she had secured financing to buy out defendant's interest. The PSA noted that plaintiff had paid defendant $133,000 and still owed him $80,000, which was to be paid in two installments. The first payment was due within one year of the date the parties signed the PSA. The second payment was due one year after the first payment was made. The PSA stated:
If for any good reason [plaintiff] is unable to make the scheduled payments on time, then upon consent by the parties, the scheduled deadlines may be extended until such time that [plaintiff] is able to make the payments without sacrificing the welfare of the minor children.
In January 2007, defendant was arrested and charged with three counts of endangering the welfare of a child, three counts of criminal sexual contact, and stalking. Custody of the children was transferred to plaintiff.
On March 2, 2007, the court entered an order which granted defendant supervised visitation with the children, and required that he pay plaintiff $254 per week in child support. The parties were ordered to continue to share a $500 per week expense for child-care, as required by the PSA. Thereafter, defendant filed a motion to reduce the child support obligation, but he failed to appear on May 24, 2007, and the court entered an order providing that the March 2, 2007 order shall remain in effect.
On February 22, 2008, the court entered an order granting plaintiff's motion to compel defendant to: pay child care arrears of $5500; pay $250 per week for child care; make child support payments of $259 per week, effective August 3, 2007; pay overdue medical insurance payments of $1360; and provide proof of life insurance.
The court entered another order dated February 22, 2008, which denied defendant's motion for shared and joint legal and physical custody of the children; for unsupervised parenting time; to reduce his child support obligation; and to compel plaintiff to pay child support arrears. In addition, the order denied without prejudice defendant's application to enforce the equitable distribution provision of the PSA and compel plaintiff to pay him $40,000 within sixty days.
On April 1, 2009, the court entered an order which, among other things, provided that defendant's accumulated child-support arrears ($6387.85), child care arrears ($26,750.38), and the amounts owed for unreimbursed medical expenses ($1570) shall be applied towards one of the $40,000 equitable distribution payments that plaintiff owed to defendant. The order also required plaintiff to pay defendant the $4806.77 balance due on the $40,000 payment. In addition, the order denied without prejudice defendant's applications for a reduction in child support and for joint legal custody of the children. The court also entered a temporary child support order on April 1, 2009, which required defendant to pay weekly child support in the amount of $509.
On December 7, 2009, the trial court entered an order denying defendant's motion for a reduction in child support. The court's order noted, among other things, that plaintiff owed defendant $44,806.77, which included the second $40,000 equitable distribution payment required by the PSA. The order stated that $4806.77 would be applied to defendant's arrears. The order also stated that plaintiff's obligation to pay defendant the remaining $40,000 was suspended until further order of the court or agreement by the parties.
On June 1, 2010, the court entered an order which, among other things, denied defendant's motion to compel plaintiff to pay him the $40,000 owed in equitable distribution. The order also denied plaintiff's motion to vacate the provision of the PSA requiring that payment.
Apparently, defendant had been sentenced to probation as a result of his conviction on the charges issued in 2007. On February 25, 2011, defendant was sentenced to a three-year term of incarceration for probation violations. The record also suggests that in May 2010, defendant was arrested on new charges, involving the improper touching of a seven-year-old girl.
The court entered an order dated March 11, 2011, which denied without prejudice defendant's motion for a reduction in child support on the basis of an alleged reduction in income. The order noted that defendant had not provided the court with a case information statement ("CIS"), which was necessary to determine whether there was a change in circumstances. In addition, the March 11, 2011 order denied defendant's motion to credit his then-outstanding support arrears ($32,197.51) against the $40,000 equitable distribution payment, and denied plaintiff's motion to permanently vacate that payment obligation.
On April 4, 2011, the court entered an order granting a cost of living adjustment ("COLA") to defendant's child support obligation, which increased the amount due to $530 per week, beginning April 6, 2011.
On April 27, 2012, the court denied without prejudice defendant's motion for a reduction in child support. The order noted that the motion had not been properly served upon plaintiff's counsel or the court. The order indicated that defendant could re-submit his motion, not later than thirty days after his release from custody, but the motion had to be accompanied by a judgment of conviction, an updated and accurate CIS, the judgment of divorce, the PSA, and other financial information. In addition, the April 27, 2012 order denied defendant's motion to apply the $40,000 due to him in equitable distribution to his outstanding arrears.
On April 8, 2013, the court entered an order granting a COLA to defendant's child support obligation. Defendant's support obligation was increased to $555 per week.
On August 21, 2013, defendant filed a motion seeking, among other relief, to: (1) enforce his rights to the $40,000.00 equitable distribution payment; (2) retroactively reduce his child support obligation as of January 23, 2011, when he allegedly filed his motion for that reduction; (3) vacate all bench warrants in any extant court orders; and (4) vacate the COLAs from April 8, 2013 and April 4, 2011, and award retroactive credits for the vacated COLAs.
Plaintiff opposed defendant's motion and filed a cross-motion to: (1) enforce defendant's obligation to pay out-of-pocket medical and other child-related expenses in the amount of $12,542.10, and add that amount to defendant's arrears; (2) permanently vacate the equitable distribution provision in the PSA; (3) hold defendant in contempt for failing to maintain the life insurance policy as required by the PSA; (4) compel defendant to provide proof of life insurance coverage; and (5) require defendant to continue to maintain the life insurance policy until the children are emancipated.
The court considered the motions on December 23, 2013. Thereafter, the court entered an order dated February 12, 2014, which denied defendant's motion in all relevant respects. The court also granted in part and denied in part the relief plaintiff requested.
II.
On appeal, defendant argues that the motion judge erred by: (1) denying enforcement of his right to the $40,000 equitable distribution payment; (2) refusing to retroactively reduce his child support obligation as of January 23, 2011, when he filed his motion for that reduction; (3) denying his motion to vacate the two COLA adjustments; (4) failing to vacate the provision of the order calling for the issuance of a bench warrant; and (5) failing to modify the PSA's provision pertaining to reimbursement of health-care expenses.
Initially, we note the standards of review that apply to our consideration of defendant's arguments. A trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Reviewing courts will not disturb a child support decision unless "it is 'manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice.'" Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)). Moreover, decisions concerning equitable distributions are reviewed for abuse of discretion. La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000) (citing Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978)).
III.
We reject defendant's contention that the motion judge abused her discretion by failing to enforce his right to receive the second $40,000 equitable distribution payment under the PSA.
In the statement of reasons accompanying the February 12, 2014 order, the judge observed that plaintiff's obligation to make the payment had been suspended by an order entered by another judge dated December 7, 2009, and the motion judge did not know the reason why the order had been entered. The motion judge nevertheless found that it was not appropriate to modify the prior order, "especially given the fact [d]efendant owes [p]laintiff a significant amount of money in child support."
We note that the transcript of the proceedings of December 4, 2009, reveals that the judge indicated that he would not allow defendant to apply his child support obligations against the $40,000 payment owed to him at that time because plaintiff needed the money for child support and "that would have a drastic indirect impact on the children."
We are convinced that the motion judge did not err by refusing to enforce the provision of the PSA requiring payment of the second $40,000 equitable distribution payment. We emphasize that the court did not relieve plaintiff of her obligation to make that second payment. Indeed, the judge denied plaintiff's motion to suspend the obligation permanently.
The judge reasonably determined that it would be inappropriate to require plaintiff to make the payment at that time, in view of the significant amount of money that defendant owed to plaintiff for child support and other expenses related to the children. As noted, when the judge entered the February 12, 2014 order, defendant owed plaintiff $12,542 in reimbursement for out-of-pocket medical and other expenses.
Furthermore, there is no indication in the record that plaintiff had $40,000 to pay defendant, and allowing defendant to apply his support obligations to the amount due to him would, as the judge noted in December 2009, deprive the family of needed funds, to the detriment of the children. We conclude that, under the circumstances, it was not unreasonable for the judge to continue the deferral of plaintiff's obligation to pay defendant the amount due to him under the PSA.
IV.
We turn to defendant's argument that the motion judge erred by refusing to modify his child support obligation retroactively to January 23, 2011, the date he allegedly filed a motion to reduce his child support, based on his anticipated incarceration, which began on February 25, 2011.
As noted, the trial court entered an order on March 11, 2011, which denied defendant's motion for a reduction in child support because it was not accompanied by a completed CIS. The order noted that defendant was incarcerated on February 25, 2011, but defendant did not specifically seek to suspend his child support obligation for that reason. Rather, defendant sought a modification of his child support obligation based on a reduction in income, and the motion was denied because he failed to submit a completed CIS.
In addition, on April 27, 2012, the court entered an order denying without prejudice defendant's motion for a reduction in child support because the motion had not been properly served. The order indicated that defendant could resubmit the motion no later than thirty days after his release from jail, but defendant was required to provide the court with information required to consider the application.
In the February 12, 2014 order, the court again denied without prejudice defendant's application for a reduction in his child support obligation, retroactive to January 23, 2011. The court ordered discovery on the application, which was to be completed by March 12, 2014. There is no indication that this discovery was ever completed. Rather, defendant filed the instant appeal on March 20, 2014.
Defendant now seeks reversal of this provision of the February 12, 2014 order and remand to the trial court for reconsideration of the application pursuant to Halliwell v. Halliwell, 326 N.J. Super. 442 (App. Div. 1999). We are convinced, however, that the motion judge reasonably determined that the application should be denied without prejudice because it was not accompanied by sufficient information, and the parties should be afforded an opportunity for discovery before the application is considered.
V.
Next, defendant contends the trial court erred by affirming two orders granting COLAs to his child support obligation for which he was never afforded notice or an opportunity to be heard. The orders approving the COLAs were entered on April 4, 2011 and April 8, 2013. Defendant claimed he never received notice of these COLAs, because he was in prison at the time.
We reject defendant's contention. As the motion judge noted in her statement of reasons, defendant had an obligation to inform the Probation Department of any change of address. Defendant contends that, even if he did not inform Probation of the change of address, Probation was aware "of [his] location" and failed to send the notice to his "new address." There is, however, nothing in the record to support these assertions.
We conclude that the record supports the judge's decision on this application, and defendant's arguments on this point are without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E).
VI.
Defendant further argues that the motion judge erroneously failed to vacate the "automatic bench warrant provisions" contained in an order dated December 7, 2009. The order granted plaintiff's motion for issuance of a bench warrant if defendant was more than one week late on any full payment of child support.
Defendant asserts that he has been incarcerated "at least" once per month for failure to pay child support, and his current salary cannot "yield enough to pay the full amount." He says that the trial court never conducted an ability-to-pay hearing before these incarcerations. There is, however, nothing in the record to support these assertions.
Here, the motion judge reasonably refused to vacate the relevant provisions of the prior order. The judge stated that Rule 5:3-7(b) provides that, in addition to the remedies provided by Rule 1:10-3, the court may grant remedies for any failure to comply with orders requiring payment of child support or alimony, including incarceration and issuance of a bench warrant. R. 5:3-7(b)(6) and (7). The judge also stated that incarceration is permitted by Rule 1:10-3, not as a punitive measure, but to coerce compliance with the court's prior orders.
The judge wrote that, "It is essential that the obligor be found to have an ability to pay an amount acceptable to the court at the hearing. Such payment will secure release without delay." The judge added, "If the obligor does not have the ability to pay, incarceration is not an available form of relief since it would be punitive in effect."
We are convinced that the judge did not abuse her discretion by refusing to modify the court's prior order allowing for the issuance of bench warrants for failure to comply with the court's child support orders, particularly in view of defendant's history of failing to meet his financial obligations in a timely manner. Furthermore, as we have noted, defendant failed to show that the order should be modified because he has been repeatedly incarcerated without having been afforded an ability-to-pay hearing.
VII.
We also reject defendant's contention that the motion judge erred by failing to modify the provisions of the PSA pertaining to health care expenses for the children. He contends that a modification was warranted because he has assumed responsibility for providing health care insurance for the children.
We are convinced that this argument lacks sufficient merit to warrant written discussion in this opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.
Paragraph 7.2 of the PSA states
[Defendant] shall be responsible for 100% reimbursement of all uncovered and/or out-of-pocket medical, dental, hospital, orthodontic, opthalmological, psychological, psychiatric, prescription drug, and any other medical and dental expenses for the children not specifically mentioned herein.In addition, paragraph 7.4 of the PSA states that paragraph 7.2 "may be modified in the event [plaintiff] loses her ability to provide and/or maintain medical and dental insurance through her employment at its current cost."
In the statement of reasons accompanying the February 12, 2104 order, the motion judge set forth the reasons for denying the relief defendant was seeking. The judge stated that:
[t]he court has not been provided with any proof that the children are, in fact, covered under [d]efendant's health insurance plan. Accordingly, the court must deny [d]efendant's request to modify the PSA pursuant to paragraph 7.4. If [d]efendant can obtain and provide proof that he has taken on the responsibility of maintain[ing] medical and dental coverage for the minor children, [d]efendant may, at that point, make a new application to the court.
Defendant asserts that he did, in fact, present the motion judge with proof of insurance as to his children. He claims to have done so by handing the judge insurance cards for his children to plaintiff during the December 23, 2013 hearing. Defendant also asserts that he provided the court with an order from the New Jersey National Medical Support Notice Processing Center, informing him that monies would be withheld from his earnings to provide health coverages for the children.
We are convinced that the judge did not abuse her discretion by denying defendant's application. Defendant failed to submit appropriate proof that he was providing health insurance coverage for the children. That proof should have been submitted to the judge in a timely manner, in the form of an affidavit or certification, with appropriate supporting documentation. R. 1:6-6; R. 1:4-4. Moreover, the judge did not preclude further consideration of the application if defendant presented the relevant information, in the proper manner.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION