On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County.
Approved for Publication April 30, 1996.
Before Judges Long and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The opinion of the court was delivered by BROCHIN, J.A.D.
Plaintiff James M. Saltzman and defendant Cindy Saltzman (now Cindy Grider) were married August 18, 1985 and divorced by a judgment entered August 29, 1994. They have two children, Justin, born February 22, 1986, and Leah, born July 8, 1987. The children reside with defendant. Post-divorce proceedings between the parties have resulted in numerous court appearances, but we need refer only to two Chancery Division orders in order to dispose of this appeal.
The first is an order entered April 13, 1995 after an evidentiary hearing held March 3, 1995. That order reduced plaintiff's weekly child support obligation effective March 31, 1995 from $370 to $98 and entered judgment for $8,649.02, the amount of his arrears in child support as of. March 27, 1995. This order also directed plaintiff to submit to examination by an employability expert and provided that either party could apply for a modification of plaintiff's support obligation after the employability evaluation had been submitted.
The second order, for enforcement of litigants' rights, was entered September 29, 1995 on the application of the County Probation Department. The order was entered following a hearing conducted that same day. No sworn testimony was offered or received. The ordering portion reads in full as follows:
IT IS THE ORDER of the Court that the obligor is continued on the present Order of $98.00 per week plus $20.00 per week on arrears for two minor children via Income Withholding. One missed payment and a Warrant shall be issued. The obligor shall pay his arrears in full in this matter by October 6, 1995 or a Warrant shall be issued.
At the time of the September 29, 1995 hearing, plaintiff owed $7,875 in unpaid child support. The Probation Department informed the court at the hearing that on or about June 21, 1995, plaintiff had received a check for $33,682, which represented his share of the proceeds of a purchase money mortgage on some property that he and his uncle had owned in Florida.
These facts were not disputed. In the colloquy that ensued between the court and plaintiff's attorney at the September 29 hearing, the court attempted to ascertain what had happened to the $33,682 and whether plaintiff had misrepresented his financial situation by failing to disclose his interest in the mortgage during previous hearings and in papers which he had filed with the court.
Defendant and the representative of the Probation Department told the Judge that they had not known about the mortgage until shortly before the current hearing, and the Judge stated that, although he had presided over most of the marital proceedings between the parties, he had not known of it either. A letter from another attorney for plaintiff was read into the record. It was addressed to an attorney who appears to have represented plaintiff's co-mortgagee and it enclosed the original satisfaction of mortgage signed by plaintiff. The letter includes the following:
This is to confirm further that Sy Saltzman [the co-mortgagee] has agreed not to disclose to any party except under compulsion of legal process the pay-off of this mortgage to James M. Saltzman. I would appreciate receiving the aforesaid payments made payable to Mr. James M. Saltzman as soon as possible.
Plaintiff's counsel, who had not represented plaintiff in the earlier proceedings, told the court that she understood that the mortgage had been disclosed to the court during the prior proceedings and that plaintiff had used the proceeds to pay other pressing debts. She also argued that no inference ...