Opinion
DOCKET NO. A-3972-12T4
07-10-2014
BARBARA REYNALDO, Plaintiff-Respondent, v. JORGE REYNALDO, Defendant-Appellant.
Adrian Bermudez, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2502-09.
Adrian Bermudez, attorney for appellant.
Respondent has not filed a brief. PER CURIAM
Defendant Jorge Reynaldo appeals from an order entered by the Family Part on March 15, 2013, which denied defendant's motion for reimbursement of monies garnished during his incarceration. We reverse and remand for reconsideration.
The parties were married for about twenty years, and three children were born of the marriage. The parties were divorced some time in 2009, and according to defendant, the parties' property settlement agreement required that he pay child support and permanent alimony to plaintiff. In April 2011, the trial court denied defendant's application for a reduction in his support and alimony obligations.
In October 2011, defendant was arrested because he was in arrears on his obligations and incarcerated in the Bergen County jail. It appears that defendant was required to tender his monthly paycheck to the Bergen County Sheriff's Office, which then withheld amounts to be applied to defendant's child support and alimony obligations.
On November 17, 2012, defendant filed a motion in the trial court seeking a refund on monies he claimed had been improperly withheld in violation of the Consumer Credit Protection Act (CCPA), 15 U.S.C.A. § 1673(b), and New Jersey law. In support of that motion, defendant submitted a certification in which he stated that he is paid on a monthly basis based on his commissions, and no tax deductions are taken from his paycheck. At the end of the year, defendant's income is reported on a federal tax 1099 form, rather than a W-2 form.
Defendant said that in February, March, April and May 2012, the Sheriff's Office withheld an excessive amount from his wages. He claimed that in February 2012, 62.821% of his gross income was withheld; in March 2012, 66.582% was withheld; in April 2012, 80.333% was withheld; and in May 2012, 78.883% was withheld.
Defendant asserted that he told the Sheriff's Office that his monthly pay represented his gross income and the garnishments were excessive. He claimed that his objections to the amount of the garnishments had been ignored. He also claimed that the Sheriff's Office had deducted an additional fee of $10 per day from his income, apparently for the cost of spending nights in jail and being subject to an electronic tracking device.
Defendant claimed that the "excessive and unlawful garnishments" left him "completely impoverished" and unable to pay his tax obligations to the state and federal governments. He says the amount of the garnishments also made it impossible for him to pay rent, purchase food, pay for necessities such as utilities and car insurance, or to sustain himself and his business. He asked that the all of the monies improperly withheld from him pursuant to the CCPA or New Jersey law be returned.
On March 15, 2013, the trial court entered an order denying defendant's motion. In a statement of reasons appended to the order, the court noted that, under Bergen County Board of Services v. Steinhauer, 294 N.J. Super. 507, 517-18 (Chan. Div. 1996), an individual's support obligations could be suspended as a result of the individual's incarceration, but the court should consider the length of the sentence and the extent of other assets the obligor may have.
The trial court noted that, under Steinhauer, suspension of support obligations would ordinarily not be appropriate when the sentence is less than one year. The trial court concluded that:
defendant's participation in the Bergen County Work Release program does not qualify as "incarceration", [sic] as analyzed in Steinhauer, as the program allowed him to actively look for work during his sentence. The defendant applied for a reduction in child support and alimony obligations which the Court denied on April 18, 2011, on the grounds that it was filed too soon after the Judgment of Divorce was entered. The defendant was then subsequently detained in the Bergen County Jail on October 6, 2011[,] for not paying his child support and alimony arrears. Because of this, the defendant should not be considered equivalent to an individual who is "disabled" by incarceration. Unlike the obligor in Steinhauer, the defendant was ordered to engage in [the] Work Release program, giving him the opportunity to work and meet his support obligations. The additional overnight charges and fees required for his participation in Work Release are not excessive, and allow him to remain free throughout the day to work, earn income and be able to pay off his arrears rather than actually being incarcerated with no means of income.
Thus, the trial court addressed the question of whether the $10 surcharge was proper but the court did not address the principal issue that defendant raised in his motion. In his motion, defendant did not seek a suspension of his child support and alimony obligations on the basis of his incarceration. Rather, defendant sought reimbursement of the amounts of his income that exceeded the amount permitted by the CCPA and New Jersey law, specifically N.J.S.A. 2A:17-56.9, which provides, among other things, that the total amount withheld from a debtor cannot exceed the amount allowed by the CCPA.
Because the trial court did not address the principal issue raised by defendant's motion, we vacate the order of March 15, 2013, and remand the matter to the trial court for reconsideration of the principal issue raised by defendant's motion.
Reversed and remanded for further proceedings in conformity 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 APPEALATE DIVISION