Opinion
DOCKET NO. A-0267-12T4
12-31-2013
DONALD RODER, Plaintiff-Respondent, v. LINDA RODER, f/k/a LINDA TERRY and n/k/a ADRIAN MICHAEL ASHFORD, Defendant. ESTATE ADMINISTRATOR LAWRENCE SULLIVAN, Appellant.
Neil A. Malvone argued the cause for appellant Estate Administrator Lawrence Sullivan. Daniel H. Brown argued the cause for respondent Donald Roder (Law Offices of Paone, Zaleski & Brown, attorneys; Mr. Brown, of counsel and on the brief). Schwartz & Schwartz, attorneys for respondent Matthew Merkel, join in the brief of respondent Donald Roder.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-152-96.
Neil A. Malvone argued the cause for appellant Estate Administrator Lawrence Sullivan.
Daniel H. Brown argued the cause for respondent Donald Roder (Law Offices of Paone, Zaleski & Brown, attorneys; Mr. Brown, of counsel and on the brief).
Schwartz & Schwartz, attorneys for respondent Matthew Merkel, join in the brief of respondent Donald Roder.
The opinion of the court was delivered by GRALL, P.J.A.D.
This case involves a dispute about whether child support arrears owed to a decedent should be paid to the decedent's estate or to the decedent's emancipated son. The administrator of the estate appeals from an order directing payment to the son. Because the obligor's debt was undisputed and there was no question of ongoing support, we conclude that the Family Part should have enforced the child support order by directing payment of the asset to the estate for distribution subject to the supervision of the Probate Part. Accordingly, we remand for entry of an order in conformity with the direction provided in this opinion.
I
Donald Roder and the decedent, Adrian Michael Ashford (formerly known as Linda Roder and Linda Terry) were married in 1987. Roder adopted Ashford's son Matthew soon after the marriage, but Matthew has always been known by a surname not used by either of his parents. Roder and Ashford divorced in 1997.
The dual final judgment of divorce incorporates the parties' agreement. They agreed that Ashford would have custody of Matthew; Roder would have visitation if Matthew was willing; and Roder would pay $150 weekly child support, through the appropriate Probation Department, until Matthew's emancipation. They further agreed that Roder's obligation to pay weekly support would continue beyond Matthew's eighteenth birthday if he were to attend college "on a full-time basis." The agreement did not require either parent to contribute to Matthew's college expenses; it was silent on that point.
Probation records of Roder's child support charges and payments do not reflect any charge for college expenses. The only increases in his weekly $150 support obligation are consistent with cost-of-living adjustments apparently made in conformity with Rule 5:6B.
Commencing in 2002, there was protracted post-judgment litigation about Matthew's emancipation. Ultimately, in July 2009, the Family Part determined that Matthew had pursued his college degree full-time after high school, graduated from college on May 21, 2008, and was emancipated as of that date. The court directed Probation to audit Roder's child support account and fix arrears as of May 21, 2008, and Probation determined that Roder owed Ashford $40,648.53. Matthew did not intervene in that post-judgment litigation at any point. See Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994) (recognizing the right of an adult child to enforce his or her right to continued support while in college).
In December 2010, about one month before Ashford's death on January 12, 2011, this court dismissed Roder's appeal from the Family Part's July 2009 determination. Thereafter, Roder promptly contacted Probation and commenced paying his arrears at a rate of $30 per week. He had paid only $90 on his arrears when Ashford died.
Eight days after Ashford's death, Lawrence Sullivan, asserting his status as Ashford's surviving spouse, filed an affidavit with the Monmouth County Surrogate Court. Sullivan listed no assets other than several bank accounts held by Ashford with an "approximate" aggregate balance of $6704.70, and he asserted entitlement to those accounts without issuance of letters of administration.
According to the Surrogate Court's record, Ashford had three heirs — Sullivan, Matthew and Matthew's older half-brother Daniel. The same record indicates that Ashford had assets Sullivan failed to list on his initial filing — a one-half interest in the residence she owned and shared with her long- time friend, Angelica Lauren Ashford (Angelica), which had a value of $85,600, and the child support owed by Roder.
Published legal notices included in the record indicate that Ashford and Angelica both changed their legal names — first names and surnames — in 1998.
Sullivan commenced this litigation in the Family Part prior to August 26, 2011, when the letters of administration were issued. His attorney prepared a motion dated August 4, 2011 and sent it to Roder by certified mail on August 23, 2011. In that motion, Sullivan sought an order that would: correct the Monmouth County Probation Department's child support records so that Roder's payments on arrears would be deposited in the estate's account; compel Roder "to become current on his child support arrears"; and award the estate counsel fees and costs.
Roder opposed Sullivan's motion. While Roder acknowledged his debt and his obligation to pay the arrears, he objected to Probation delivering his payments to Ashford's estate and sought, by argument in opposition and not by way of cross-motion, an order directing Probation to pay the support directly to Matthew.
Noting his personal knowledge of Ashford's long-term relationship with Angelica and their ownership of the home in which they resided, Roder questioned Sullivan's status as her surviving spouse. He also questioned whether Ashford died intestate, asserting his personal knowledge of Ashford signing a will, which had been witnessed and notarized, through which she left all of her property to her sons.
On November 1, 2011, the judge entered an order denying Sullivan's first motion and granting Roder's implied request to have the support paid to Matthew. The judge's statement of reasons indicates that he found Matthew was twenty-seven years of age and "more than capable of receiving the support payments directly" and, mistakenly, that he was Ashford's only heir. The judge concluded that there was "no reason why [it] is not in the best interest of the child" to have the support paid to him directly.
We refer to Roder's request as implied because there is nothing in the record indicating that Roder filed a cross-motion seeking any affirmative relief.
Sullivan filed a timely motion for reconsideration, which Roder opposed. On January 27, 2012, the judge entered an order granting Sullivan's request for reconsideration, directing Probation to deposit Roder's payments on arrears in the estate's account, awarding the estate counsel fees and costs in the amount of $1030, and compelling Roder "to become current on his child support arrears." All other requests for relief were denied. The record provided on appeal does not include a certification of services supporting the award of fees and costs, and there is no basis for an award of fees and costs to the estate that is apparent to us.
Although Sullivan did not file the motion until November 23, 2011, it was filed within the time permitted by Rule 4:49-2, because the court did not mail the order until November 13, 2011.
According to the order, the judge's findings and reasons were set forth on the record. Neither party has provided us with an official transcript.
Roder filed a motion for reconsideration beyond the time permitted by Rule 4:49-2. Sullivan opposed the motion as untimely filed and filed a cross-motion seeking an order compelling Roder to "become current on his child support arrears," pay counsel fees and costs on the motion, and "provide the estate and probation office with an updated and current Case Information Statement."
Sullivan's attorney sent the January 27, 2012 order to Roder on January 30, and there is no dispute that Roder's mother signed for it at Roder's address on January 31. Roder's motion for reconsideration was filed by his newly retained attorney on March 30, 2012.
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Although neither Matthew nor his half-brother were given notice of these motions, Matthew, who received actual notice from Roder, submitted a certification in support of Roder's position. In that certification, Matthew acknowledged that he continually resided in Ashford's home while attending college and did not change his residence until 2009. He further asserted that he worked to pay his tuition and expenses and received no money from Ashford after he graduated from high school in 2002. Matthew did not claim that he used any of his earnings to contribute to household expenses or food, and he mentioned nothing other than providing $3000 of his "savings" to pay for the repair of Ashford's roof before leaving her home to live with his grandparents. By the time the motion was heard, Matthew had retained counsel, and the judge permitted that attorney to argue on Matthew's behalf although he had not been joined as a party.
On July 26, 2012, the judge entered an order denying Sullivan's motion "in its entirety"; granting Roder's request to have his arrears paid to Matthew; directing Matthew to provide a "current bank account" so that Probation could make the deposits; and denying without prejudice "[a]ny requests not specifically addressed." The judge issued a written statement of findings and reasons.
The findings are inconsistent with and not supported by the record and skewed by a misapprehension of the law. Apparently misreading Matthew's certification establishing that he lived in Ashford's home continually until at least six months after his emancipation, which was the only competent evidence on the point, the judge found that Matthew had mainly resided with persons other than his mother during the period pertinent to the arrears. The judge also found that Ashford had not contributed to Matthew's college expenses, which Matthew asserted he paid. But the judge did not consider the fact that Roder's arrears were for child support, not college expenses, which are two different things. Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998) (noting that college expenses and child support are interrelated but "discrete" obligations). Finally, the judge observed that there seemed to be "substantial questions as to who the appropriate Estate Administrator should be," but he concluded that administration of the estate was not properly before the court.
Apparently unwearied by the repetitive motions, Sullivan and Roder both moved for reconsideration. While those motions were pending in the trial court, on September 7, 2012, Sullivan filed a notice of appeal. In that notice his attorney reported that all issues as to all parties had been resolved, which was obviously inaccurate given the pending cross-motions for reconsideration. Making matters worse, Sullivan's attorney has included papers submitted on those motions in the appendix filed with this court. That was improper because those papers were not before the judge when the order from which Sullivan appeals was entered.
II
A
We considered dismissing this appeal because there are motions pending in the trial court that were pending when the notice of appeal was filed. An order is not appealable as of right unless all issues as to all parties have been resolved. R. 2:2-3(a); Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008). Where, as here, all issues have not been resolved, a party must obtain leave to appeal from this court, and that is a matter left to the discretion of this court. R. 2:2-4; Vitanza, supra, 397 N.J. Super. at 517.
This court generally declines to grant leave to appeal as if requested within time in circumstances like this, where a grant of leave to appeal has the capacity to encourage disregard of Rule 2:2-4. Vitanza, supra, 397 N.J. Super. at 517-18. In this case, however, we conclude that a dismissal of the appeal would be inappropriate. It is apparent to us that a decision on the pending motions for reconsideration would not advance the interests of justice and would only further delay proceedings in the Probate Part. Such delay would be inconsistent with the goal of the Probate Code, which is "securing 'the speedy settlement of decedent[s'] estate[s].'" Fazilat v. Feldstein, 180 N.J. 74, 82 (2004) (quoting Robinson v. Hodge, 4 N.J. 397, 405 (1950)). Accordingly, we grant leave to appeal as if timely requested. R. 2:2-4; R. 2:4-4(b)(2).
B
Turning to the merits of this appeal, it is apparent that this litigation is on the wrong course. From the evidential materials submitted on the first of the serial motions filed in the Family Part, it is apparent that the principal claim at the center of this dispute was not one unique to and arising out of a family or family-type relationship cognizable in the Family Part of the Chancery Division. R. 4:3-1(a)(3); R. 5:1-2(a).
As previously noted, there was no claim of entitlement to ongoing future support, which would be cognizable in the Family Part. See, e.g., In re Estate of Roccamonte, 174 N.J. 381, 398-99 (2002) (enforcement of oral promise to support made by decedent against the estate involved unresolved questions about a family-like relationship). We recognize that the Family Part has the authority to enforce its own orders in favor of or against the estate of a deceased litigant affected by the order. See D'Angelo v. D'Angelo, 208 N.J. Super. 729, 731-33 (Ch. Div. 1986) (concluding that a former wife could enforce divorce agreement against her husband's estate by joining the executors of his estate in a post-judgment enforcement action); Berlin v. Berlin, 200 N.J. Super. 275, 279 (Ch. Div. 1984) (allowing estate of deceased wife to enforce her equitable distribution rights by way of post-judgment motion against her former husband in the divorce action). Under that authority, the Family Part could and should have entered an order directing Probation to deposit Roder's payments on arrears into the estate's account.
But the Family Part did much more than enter an order facilitating the estate's enforcement of Roder's obligation to pay child support arrears. The judge went on to enter an order that effectively distributed an asset of the estate to one of the decedent's three heirs. That was a matter for the Probate Part of the Chancery Division. R. 4:3-1(a)(2).
There is no question that Roder's obligation to pay arrears was owed to Ashford when she died. Roder had no obligation to pay any support to his emancipated son Matthew. While our courts have stated that child support belongs to the child, that assertion is generally found in discussions of the general principle that one parent cannot waive a child's right to receive support from the other. See Pascale v. Pascale, 140 N.J. 583, 591 (1995); J.S. v. L.S., 389 N.J. Super. 200, 205-06 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007). That principle has no relevance to payment of a child support debt owed to a custodial parent at the time of that parent's death, especially where the child is emancipated and has no claim for ongoing support from either parent. Ashford, the person who, by Matthew's admission, provided him with a place to live from the time of his parents' divorce until six months after his emancipation, was the obligee. And Matthew's assertion that he paid his own college expenses was wholly irrelevant given that Roder's arrears were for child support, not college expenses. Hudson, supra, 315 N.J. Super. at 584.
In short, there was nothing before the Family Part that suggested that these child support arrears were anything other than a debt Roder owed to Ashford for supporting their child at the time of her death. Pursuant to N.J.S.A. 2A:17-56.23a, an order for child support is "a judgment by operation of law on and after the date it is due." The estate's claim for arrears that "accrued but were not paid at the time of the [decedent's] death is a vested right . . . [that became] an asset of [Ashford's] estate." Cureton v. Joma Plumbing & Heating Co., 38 N.J. 326, 332 (1962) (worker's compensation benefits); see N.J.S.A. 3B:5-11 (discussing disposition of a debt owed to an intestate); see also N.J.S.A. 3B:10-25 (providing that a personal representative has the same standing to sue and be sued as the decedent on all claims that survive death); N.J.S.A. 3B:1-2 (defining personal representative to include administrators and executors).
The only dispute raised by Roder was not his to raise. Having acknowledged his child support arrears and his obligation to pay them, Roder had no legally recognized interest, at least none we can identify, in the disposition of his payments on arrears, at least none other than an interest in having the payments deducted from his debt. His objections to paying the estate sparked a dispute implicating the competing interests of Ashford's heirs. Assuming the accuracy of the Surrogate's record indicating that Ashford died intestate, resolution of that dispute was a matter for the Probate Part to resolve. R. 4:3-1(a)(2). The Family Part erred by attempting to resolve that dispute.
In effect, the Family Part's order directing payment of the arrears to Matthew took an asset from the estate, which redounded to the detriment of Ashford's other two heirs. Importantly, one of those heirs, Ashford's son Daniel, had no notice of the proceeding or opportunity to be heard. Moreover, the order was entered on a motion for reconsideration filed beyond the time permitted by Rule 4:49-2, which the judge had no authority to extend, R. 1:3-4(c).
The orders entered by the Family Part in D'Angelo and Berlin to enforce its prior orders are significantly different than the order entered in this case. In both D'Angelo and Berlin, the order affected the interests of the estate of a decedent's former spouse on one side and the surviving former spouse on the other. In contrast, the order entered here affected no interest of the former surviving spouse, who acknowledged his debt and the obligation to pay it. Rather, it affected only the interests of one heir, Matthew, and the competing interests of the estate as a whole.
We recognize that Roder's several certifications raised a serious question about Sullivan's status as the administrator of Ashford's estate and a colorable question about whether Ashford died testate or intestate. But as the judge recognized, those questions were for the Probate Part. The problem is that the judge did not recognize that his order assigning the child support arrears to Matthew was also a matter for the Probate Part.
We have considered reinstating the order vacated by the July 27, 2012 order granting Roder's untimely motion for reconsideration. But we have determined that reinstatement of that order would not be in the interest of justice. As previously noted, that order includes an award of attorney fees and costs to the estate which the record provided on appeal does not support. Moreover, reinstatement of that order would not advance the interest in "securing 'the speedy settlement of decedent[s'] estate[s],'" Fazilat, supra, 180 N.J. at 82, which was disserved by the serial motions in the Family Part and would be further disserved if the parties were to pursue their pending cross-motions for reconsideration.
For all of the foregoing reasons, we reverse and remand with direction for the Family Part to enter an order that does the following:
1. Vacates the orders filed on November 1, 2011, January 27, 2012, and July 26, 2012 in their entirety;
2. Dismisses the pending motions for reconsideration;
3. Directs the Probation Department to modify the child support account number CS60248559C to provide for the deposit of payments held or received by Probation into the account of Ashford's estate;
4. Requires the estate to hold any funds deposited by Probation pending order of the Probate Part;
5. Directs the heirs to pursue any objections to the administration of the estate in the Probate Part.
6. Directs Sullivan to file a copy of this decision and the Family Part's order entered in conformity with it on the Surrogate and all known heirs.
7. States that Roder's obligation to pay the arrears owed Ashford through the appropriate probation department is in no way altered.
To avoid any potential confusion, we note that nothing in this opinion should be understood to preclude the Probate Part from transferring any issue to the Family Part in the unlikely event that new information presented in the probate matter raises a matter cognizable in that Part of the Chancery Division.
Reversed and remanded for entry on an order in conformity with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION