June 13, 2007
FRANK SALAMONI, PLAINTIFF-APPELLANT,
MARILYN SALAMONI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1079-02D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2007
Before Judges Parker and Messano.
In this post-judgment matrimonial case, plaintiff Frank Salamoni appeals from an order entered on March 17, 2006 denying his motion for reconsideration of an order entered on January 23, 2006. The January 23 order denied plaintiff's motion to stay wage garnishment and enforcing child support arrears and declaring "child support arrears and childcare arrears . . . to be in the nature of support and thus not dischargeable in bankruptcy."
Plaintiff argues that (1) the trial court abused its discretion in entering an order reclassifying day care expenses as child support in violation of the automatic stay provision of Chapter 13 of the bankruptcy code, 11 U.S.C. § 362; (2) even if there was no violation of the automatic stay, the court still abused its discretion in reclassifying daycare expenses as child support; and (3) the court's order was procedurally improper in that the court ordered the parties to brief the issues rather than have defendant move in bankruptcy court to lift the stay. Defendant's brief was suppressed.
Plaintiff has not provided us with a judgment of divorce indicating what his support obligations were initially or how they were characterized. On August 18, 2005, plaintiff filed an application for an order to show cause why his wage garnishment by the Probation Department should not be vacated. He sought to stay the wage garnishment because he had filed a Chapter 13 bankruptcy petition in the interim and claimed the automatic stay provision of the bankruptcy code precluded the wage garnishment.
Defendant cross-moved to establish appropriate child support obligations for the parties, set the amount of arrears due and establish a payment schedule. Defendant objected to staying the wage garnishment because plaintiff's bankruptcy petition did not affect his continuing child support obligations. After hearing their arguments on November 18, 2005, the court requested that the parties submit briefs on the issue of the automatic stay and on January 23, 2006, the court entered the order requiring plaintiff to pay the child support arrears, which were not exempt from bankruptcy.
We have carefully considered the record presented to us in light of plaintiff's arguments and the applicable law. To the extent we understand plaintiff's arguments, we find they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comment.
Child support is clearly exempt from the automatic stay provision of the bankruptcy code. 11 U.S.C. § 362(b)(2)(C); 11 U.S.C. § 523(a)(5); see also Winegarden v. Winegarden, 316 N.J. Super. 52, 59-60 (App. Div. 1998). Child care expenses are in the nature of child support. See Ibid. The family court, therefore, may characterize child care expenses as child support and enforce child support orders through wage garnishment or any other means authorized by law. Ibid. R. 4:59(d).
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