On appeal from the Superior Court, Chancery Division, Family Part, Essex County.
Approved for Publication February 27, 1995. As Corrected March 10, 1995.
Before Judges Havey, Brochin and Cuff.
The opinion of the court was delivered by: Cuff
The opinion of the court was delivered by CUFF, J.S.C. (temporarily assigned)
This is a matrimonial matter. Defendant Doreen Mallamo appeals from two provisions of the Judgment of Divorce. One provision allows her former husband, plaintiff Patrick Mallamo, unsupervised visitation with both children born of the marriage. The other provision requires us to decide whether a child support award established after a trial, but made effective as of the first day of trial, contravenes N.J.S.A. 2A:17-56.23a. We hold that it does not and affirm.
Plaintiff filed a complaint seeking a divorce on the grounds of extreme cruelty on June 29, 1991. Two children were born of the marriage; a daughter aged, 11 and a son, aged 9. Defendant sought a provision in the judgment of divorce that the children would not be separated during visitation with plaintiff. The Judgment of Divorce, entered on July 23, 1993, does not contain this provision. Rather it provides that plaintiff shall have unsupervised visitation with the children pursuant to a schedule set forth in the Judgment. We affirm Judge Zampino's order concerning visitation on the basis of his February 3, 1993 letter opinion.
The central issue on appeal concerns an oral modification of the child support award after the second day of trial and Judge Zampino's confirmation of the reduction in his final decision. Defendant argues that this constitutes a retroactive modification of child support contrary to N.J.S.A. 2A:17-56.23a.
Pursuant to various pendente lite support orders, plaintiff had been ordered to pay $175 per week in child support. He had also been ordered to pay $50 per week in alimony. The initial order entered on August 1, 1991, provided the following language, "Either party may seek reconsideration of the $225 per week but the motion seeking reconsideration must be filed within 30 days of July 3, 1991."
Support arrears began to accrue. By order dated November 22, 1991, Judge Zampino denied plaintiff's motion for a decrease in alimony and child support. He also set arrears as of September 27, 1991 at $1,900. Plaintiff was to pay $750 on the arrears by October 7, 1991 or appear before the court. There is nothing before us to determine whether plaintiff paid the $750 or whether he appeared before Judge, Zampino. However, on February 28, 1992, another order was entered which fixed support arrears at $2,050 as of October 25, 1991 and entered a judgment in favor of defendant and against plaintiff in that amount. The order also provided that the $225 weekly support was not reduced; on the other hand, payment of $150 per week would forestall further enforcement proceedings including the issuance of a bench warrant. Thereafter, by order dated March 3, 1992, arrears were set at $5,350 as of February 28, 1992 and reduced to judgment. Finally, although no order was entered at the Conclusion of the second day of trial, Judge Zampino orally instructed plaintiff to pay $100 per week child support.
In his February 5, 1993 letter opinion, Judge Zampino found that plaintiff earned $30,000 in 1990, $12,900 in 1991, $2,000-3,000 in 1992, and at the time of the decision, approximately $14,000 (composed of the value of the $550 monthly apartment rent and wages of $142 per week from the Star Ledger). Judge Zampino also found that he had started a "wedding showcase" from which he hoped to obtain income by June 1993. Based on this income, Judge Zampino concluded that plaintiff should continue to pay $100 per week as child support, with an increase to $175 effective July 1, 1993. He further found no basis to award alimony. As to arrears, Judge Zampino wrote:
The Court does not agree that the statute [N.J.S.A. 2A:17-56.23a] prohibits modification of the arrears under a Pendente Lite Order. At the time of Final Judgment, the Court commonly enters orders, retroactive to the date of Pendente Lite relief, upward or downward, based on the proofs presented at trial. Only at the end of the trial can the Court verify the incomes alleged, at the time the temporary order was entered. This reduction is based upon the period of employment and reduced earnings of the husband.
Accordingly, Judge Zampino reduced the pendente lite arrears to $5,200 payable $50 per week effective January 1, 1994. The Final Judgment of Divorce filed on July 23, 1993 provides that child support is reduced from $175 to $100 per week effective October 14, 1992, the first day of trial.
On appeal, defendant argues that the court's oral modification of child support during the trial without benefit of a motion for modification which was continued in his February 5, 1993 letter opinion and memorialized in the Judgment of Divorce, violates the prohibition of retroactive modification of child support set forth in N.J.S.A. 2A:17-56.23a. *fn1
Significantly, defendant does not argue that $100 weekly child support is inappropriate. Nor could she. Pursuant to the child support guidelines, R. 5:6A, the initial pendente lite child support award of $175 required a net annual income of $26,000-$28,000. According to Judge ...