On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-226-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Grall.
Defendant Joseph L. Krivulka appeals from the order of the Family Part imposing $15,000 as a monetary sanction for his failure to pay child support and childcare expenses as provided in the parties' property settlement agreement (PSA). Invoking its alleged authority under Rule 4:42-9, the court directed defendant to pay this monetary sanction directly to plaintiff's attorneys.
Defendant argues that the trial court abused its discretion in transforming a monetary sanction into an award of attorneys' fees, and that the amount of the sanction was sufficiently punitive to require a hearing under R. 1:10-2. Plaintiff cross- appeals arguing that the proper amount of the sanction should have been $31,500.
After reviewing the record before us, and in light of prevailing legal standards, we vacate the order imposing the sanction, and remand the matter for a plenary hearing. These are the salient facts.
The parties are former husband and wife. They had two children who are now eight and five years old. The PSA executed by both sides on June 1, 2006, obligates defendant to pay child support in the amount of $4,000 per month; payment is due "within the first five days of that month." Defendant is also responsible to pay daycare expenses "up to a maximum of $1,000/month" until the oldest child reaches the age of twelve. Thereafter, the maximum daycare expense is reduced to $500 per month until the youngest child reaches the age of twelve.
Plaintiff is required to provide defendant documentation in the form of "daycare expenses for the prior month by the 5th day of the next month." Defendant must reimburse plaintiff "within 7 days thereafter."
On July 11, 2006, just one month and eleven days after the execution of the PSA, plaintiff moved before the Family Part seeking enforcement of defendant's child support obligation.*fn1
Plaintiff alleged that defendant was in arrears with respect to the month of July. Although the record does not contain defendant's response to this motion, we can infer the substance of defendant's opposition from the motion judge's statement of reasons in support of his decision.
On August 4, 2006, the court granted plaintiff's motion, finding that defendant was "in violation of litigant's rights for failing to comply with the terms of the [PSA]." The court then ordered the following relief:
The defendant shall pay the July child support by August 11, 2006 or he will be sanctioned $500.00 per day until he complies.
The defendant shall make all future payments timely or be sanctioned $500.00 per day that he is late with any payment (including child support, daycare expenses, lump sum equitable distribution, or any other financial obligation).
The defendant shall pay the mother's attorney, the law firm of Dughi & Hewit, the sum of $1,560.00 in counsel fees for the costs of this application within fourteen (14) days of the date of this order. If the father fails to comply, he shall be sanctioned $500.00 per day until he complies.
The motion judge gave the following statement of reasons in support of his ruling.
The father paid the June child support one month late and has yet to pay the July support, $4,000.00, due July 1, 2006. The court notes that the father has represented that he is currently in compliance with the order. However, Probation indicates that as of August 4, 2006, the father has paid support for neither July or August. Additionally, at the same time the motion was filed, the father had not yet paid $17,500.00 pursuant to the Property Settlement Agreement. The father has a history of non-compliance. Therefore, it is appropriate for the court to specify the sanctions should the father choose to continually ignore his obligations. If the father continues to not comply with this court's orders, he may be incarcerated.
As the emphasized section of this passage indicates, the court acknowledged a discrepancy between defendant's allegations of compliance and the records kept by the Probation Department. Instead of ordering a plenary hearing, the court decided to resolve this factual conflict based only on the parties' "warring" certifications.
Less than a month later, plaintiff filed another enforcement motion against defendant. This time, plaintiff requested that the court sanction defendant in the amount of $31,500, payable to her attorneys. In her supporting certification, ...