Opinion
DOCKET NO. A-5406-12T1
01-14-2015
AMELIA MANYA EMILY ORT, Plaintiff-Appellant, v. ABRAHAM J. ORT, Defendant-Respondent.
John P. Paone, Jr., argued the cause for appellant (Law Offices of Paone, Zaleski, Brown and Murray, attorneys; Mr. Paone, of counsel and on the brief, Daniel H. Brown, on the brief). David Perry Davis argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0990-00. John P. Paone, Jr., argued the cause for appellant (Law Offices of Paone, Zaleski, Brown and Murray, attorneys; Mr. Paone, of counsel and on the brief, Daniel H. Brown, on the brief). David Perry Davis argued the cause for respondent. PER CURIAM
Plaintiff, Amelia Manya Emily Ort, appeals from that portion of a June 13, 2013 post-divorce judgment order that granted defendant, Abraham J. Ort, limited relief in reducing the amount of child support towards arrears he must pay to vacate the previously issued bench warrant (the purge amount) and setting up a discovery schedule to address defendant's application to reduce child support. Based on the fugitive disentitlement doctrine, as discussed in Matsumoto v. Matsumoto, 171 N.J. 110 (2002), plaintiff argues that the motion judge abused his discretion by permitting defendant to be heard. We disagree and affirm.
Following twenty-three years of marriage and the birth of thirteen children, the parties were divorced in 2007. Plaintiff retained custody of the eight unemancipated children. The parties consented to binding arbitration, which resulted in a child support award of $11,000 per month payable by defendant based on his imputed earned income and income from a New York City building. Defendant has not paid any of this support. He claims the rents are unavailable due to litigation in New York. A bench warrant was issued for non-payment of support in 2008. Defendant has remained outside the country. His arrears were set at $561,595 in April 2012. Defendant claims that plaintiff has received "in excess of $1,500,000 . . . via disbursements from custodial accounts established solely by defendant's family." Plaintiff agrees that she has supported herself and the children from the children's custodial accounts, as well as the sale of marital assets, including that portion of those assets awarded to defendant.
Defendant indicates that he is a Talmudic scholar and does not earn money through employment. The arbitration award based child support on an imputed income of $50,000 as an Orthodox Jewish rabbi and tutor.
One child remains unemancipated. Plaintiff has begun working outside the home, thus potentially changing the appropriate child support calculation. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2626 (2015) ("The Income Shares Approach to Sharing Child-Rearing Expenses"). In February 2013, defendant filed a motion seeking to modify child support and vacate the bench warrant. Plaintiff filed a cross-motion asking that the judge "not entertain or grant the defendant any affirmative relief until he personally appears before this tribunal and satisfies the condition to purge the bench warrant for his arrest." She maintains that defendant has not voluntarily complied with any aspect of the arbitration award and engages in litigation from a distance solely for the purpose of harassment.
She indicated she earned $15,000 a year.
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A trial court's application of the fugitive disentitlement doctrine is discretionary and requires consideration of various factors. Matsumoto, supra, 171 N.J. at 129. Our Supreme Court explained the analysis:
We adopt as our guide the following standards that we have distilled from relevant case law: the party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary's fugitive status; and invocation of the doctrine cannot be an excessive response.
[Ibid.] (citations omitted).]
The Court went on to comment:
The fugitive disentitlement doctrine, as we have described it, is an instrument for the effectuation of justice through the enforcement of the court's orders against those who have evaded them by fleeing either physically or constructively. The standards we have adopted for the application of the doctrine guarantee that it will not be misused and that, where a lesser remedy assures the enforceability of our judgments along with practical equity to the adversary, dismissal will not occur. Fugitive disentitlement is not a punishment but an exercise of the court's inherent power that should be sparingly invoked, because remedies that bar consideration of claims on the merits are, in the main, contrary to our notions of justice.
[Id. at 135.]
This doctrine thus accords considerable discretion to the trial court. The motion judge has been involved with these parties since at least June 2010, when he signed an order involving trustees of a foundation. In his written decision submitted to us pursuant to Rule 2:5-1, Judge Lawrence R. Jones reasonably explained that he reduced defendant's purge amount in an effort to encourage payment. He noted at oral argument that in his experience, he had not seen the fugitive disentitlement doctrine used in a child support case to prevent the payor from seeking a reduction, even if a warrant had been issued for nonpayment of support. Judge Jones reasoned that the proper calculation of child support would generally disfavor the implementation of the doctrine.
We defer to the experience and expertise of family judges. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Clearly this family presents unusual factual issues impacting the parties' financial ability to support their remaining unemancipated child and the amount of arrearages due. Apparently defendant has, or will have, access to income generated by property in a neighboring state. Other marital assets, including one partially awarded to him, have been sold to support the children. We cannot conclude on the basis of the limited record before us that Judge Jones abused his discretion in refusing to invoke the fugitive disentitlement doctrine in the application before him.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION