November 29, 2007
LINDA KOSOWICZ, PLAINTIFF-APPELLANT,
JOHN GELLATLY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Chancery Division, FM-02-28825-85.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Weissbard and S.L. Reisner.
Plaintiff Linda Kosowicz appeals from a post-judgment order of June 30, 2006 entered in this matrimonial case between plaintiff and her ex-husband, defendant John Gellatly. We affirm in part, and remand in part for further proceedings.
Plaintiff and defendant were married on September 28, 1974. There were two children born of the marriage: a son, born December 20, 1977, and a daughter born January 22, 1981. The parties were divorced by Final Judgment on September 6, 1985, which incorporated a Property Settlement Agreement (PSA) dated July 9, 1985. As part of the PSA, plaintiff received residential custody of the then minor children and defendant was ordered to pay child support at the rate of $62.50 per week per child.
On August 3, 2001, in response to plaintiff's Motion to Enforce Litigant's Rights, which defendant did not oppose, the court entered an order addressing among other things, outstanding child support arrears and, further imposing upon defendant the obligation to pay a portion of his unemancipated daughter's college expenses at Seton Hall University. Subsequently, the court reduced that order to Judgment and recorded it as a lien. Paragraph three of the order compelled defendant to pay the sum of $1,100 per month directly to the plaintiff by the fifteenth of each month as a contribution towards the future college education expenses of their daughter. Also, it set arrearages in the amount of $16,289.27, representing monies that the plaintiff already expended towards the minor daughter's tuition costs for calendar years 1999 through 2001. The Probation Department was ordered to collect those arrearages in the amount of $50 per week. Paragraph five of the order compelled defendant to reimburse plaintiff in the amount of $1,053.25 within thirty days. Paragraph seven of the order set child support arrearages as of August 3, 2001, in the amount of $94,250.
Further, the order increased defendant's child support obligation for the party's daughter, Lindsay, to $146 per week, and required that defendant pay an additional $50 per week towards child support arrearages. The Court ordered a wage execution in paragraph eight of the Order. Finally, in paragraph nine, the court ordered defendant to pay $500 towards plaintiff's counsel fees.
Plaintiff returned to court in April of 2002, seeking enforcement of the August 3, 2001 order. In response to that motion, a different judge entered an order on April 12, 2002, increasing the amount of arrearages for child support and college education expenses to $119,562.52. Again, defendant did not file any opposition.
In March of 2003, plaintiff again sought enforcement of the previously entered child support orders. Once again, the motion was unopposed. On March 7, 2003, an order was entered finding defendant in violation of litigant's rights. The court ordered defendant to immediately pay the sum of $12,700, representing a partial reimbursement of the $16,289.27 Judgment. The March 2003 order included the portion of the August 3, 2001 order compelling defendant to contribute toward Lindsay's college costs at the rate of $1,100 per month, via direct payment. The court also set defendant's obligations towards Lindsay's junior and senior year college expenses at $31,794.50.
Having found that plaintiff had already paid $15,340 toward Lindsay's junior year expenses, the court entered Judgment against defendant in the amount of $15,340, representing fifty percent of Lindsay's junior year expenses. The court also ordered defendant to pay his anticipated fifty percent share of Lindsay's senior year expenses in the amount of $16,454.50. The order also directed defendant to pay half of Lindsay's summer school tuition for the calendar year 2002 in the amount of $3,778.50, which sum was also reduced to Judgment. The court continued defendant's obligation to pay $1,100 per month directly to plaintiff for college expenses, until paid in full. The order entered an additional Judgment in the amount of $5,526.00 nunc pro tunc to April 12, 2002, for unpaid child support and amended the court records to reflect that child support arrearages as of December 4, 2002, were $99,776.
Finally, defendant was ordered to pay plaintiff's counsel fees in the amount of $2,530.
Due to defendant's alleged failure to abide by the court-ordered support obligations, plaintiff obtained an Order for Arrest dated October 29, 2003, which in effect, committed defendant to the Bergen County Work Release Program until he complied with all of the provisions of the March 7, 2003 order. In an effort to accelerate the satisfaction of the outstanding child support awards, a subsequent order was entered on March 31, 2004, increasing the level of wage garnishment against defendant to the federal statutory level of sixty-five percent.
After the imposition of the sixty-five percent wage garnishment, defendant's payments became more regular. Thereafter, defendant retained counsel and sought to modify his child support obligations. Defendant claimed that plaintiff failed to adequately disclose payments that she received, that he was not properly consulted regarding his daughter's attendance in college, and that his children should have been emancipated earlier. He specifically noted that plaintiff requested payment for their daughter's fourth year college expenses despite the fact that she had dropped out of college prior to her fourth year. As a result, an order was entered on July 26, 2005, emancipating Lindsay effective January 22, 2003.
That order, however, did not disturb or modify the wage garnishment amount previously entered.
Finally, on January 4, 2006, defendant moved to modify certain support provisions in the Judgment of Divorce, to emancipate the minor children, to recalculate arrearages and to order an accounting. As to arrearages, defendant claimed that plaintiff misrepresented to the court the amount of child support contributions defendant made between 1985 and 1991. Defendant claimed that he made support payments to plaintiff during this time totaling approximately $40,000. Defendant further claimed that he had contributed upwards of $19,000 to his daughter's college expenses in 2000 and 2001. Defendant sought a recalculation because these facts were unknown to the judges during the previously unopposed motions brought by plaintiff. After the plaintiff filed a pro se response, the court issued a tentative decision resolving some of the matters raised by defendant, but denied his request to recalculate arrears.
Defendant's counsel then sent a letter to the court which was, in essence, a motion for reconsideration. After plaintiff received a copy of the letter, she wrote to the court on March 1, 2006, requesting time to respond. Plaintiff retained counsel and filed a cross-motion, asserting that defendant's efforts to unilaterally modify and set aside final judgments were out of time and unsupported by the facts.
Plaintiff further sought the court's intervention to insure that assets that the defendant was about to inherit would not go unaccounted for and that these funds could be utilized and set aside so that outstanding child support and college education related expenses could be paid for. In support of that request, plaintiff presented a Last Will and Testament of defendant's mother, indicating that defendant would inherit his mother's home.
Plaintiff also joined in the defendant's request for a plenary hearing, disputing the payments made by defendant in the past, as well as his ability to make payments in the future.
After hearing argument and receiving submissions, the judge entered the order of June 30, 2006, which is the subject of this appeal. The judge determined that copies of checks from defendant to plaintiff, signed and cashed by plaintiff, showed that defendant made payments for which he should have been given credit; the checks totaled $62,899.25. Wage garnishments further amounted to $44,728.35. Therefore, the court determined that defendant owed $18,572.00 in arrearages for child support and $35,238.52 for outstanding college expenses.
On appeal, plaintiff argues:
POINT I: THE COURT ERRED IN MODIFYING THE PRIOR COURT ORDERS AND IN FAILING TO ORDER A PLENARY HEARING TO RESOLVE A DISPUTE REGARDING THE DEBITS AND CREDITS OWED BY THE DEFENDANT TO THE PLAINTIFF REGARDING CHILD SUPPORT ARREARS AND COLLEGE EDUCATION RELATED EXPENSES PURSUANT TO PRIOR ORDERS OF THE COURT.
POINT II: THE COURT ERRED IN FAILING TO HOLD AN ABILITY TO PAY HEARING TO DETERMINE THE DEFENDANT'S PRESENT ABILITY TO SATISFY OUTSTANDING ARREARAGES, AND TO PAY OUTSTANDING COLLEGE EDUCATION COSTS.
POINT III: THE COURT ERRED IN FAILING TO MAINTAIN THE WAGE GARNISHMENT PURSUANT TO U.S.C. 1673 AND N.J.S.A. 2A:17-56 TO WIT: 65% OF HIS NET TAKE HOME PAY SO AS TO SATISFY OUTSTANDING ARREARAGES.
POINT IV: THE COURT ERRED IN FAILING TO GRANT THE DEFENDANT'S REQUEST THAT DEFENDANT IMMEDIATELY SATISFY OUTSTANDING COUNSEL FEE AWARDS ENTERED BY THE COURT.
POINT V: THE COURT ERRED IN FAILING TO AWARD PLAINTIFF COUNSEL FEES FOR HAVING TO FILE HER CROSS MOTION FOR ENFORCEMENT AND FOR HAVING TO DEFEND DEFENDANT'S NOTICE OF MOTION AND FOR HAVING TO FILE AN ENFORCEMENT MOTION RELATIVE TO COUNSEL FEES AND SATISFACTION OF THE OUTSTANDING COLLEGE EDUCATION RELATED EXPENSES.
POINT VI: THE COURT ERRED IN FAILING TO IMPOSE INTEREST ON THE OUTSTANDING CHILD SUPPORT ARREARAGES AND FAILING TO ORDER THE PROBATION DEPARTMENT TO IMPOSE INTEREST AS REQUIRED BY THE RECENT SUPREME COURT PRECEDENT.
Plaintiff contends that the judge erred in failing to hold a plenary hearing to resolve conflicting assertions by the parties regarding the amount of child support that had been paid by defendant, as well as the remaining amount owed by defendant for both child support and college expenses. Plaintiff argues that a determination of these issues required testimony in order to gauge not only the credibility of the opposing contentions, but also the method of calculation used by each side to arrive at their final figures as to the money owed. Plaintiff submits that the absence of a plenary hearing failed to provide her with a full and fair opportunity to be heard on numerous contested issues.
In support of her argument, plaintiff cites numerous cases holding that it is inappropriate for a court to decide a case based merely upon conflicting affidavits. See e.g. Mackowski v. Mackowski, 317 N.J. Super. 8 (App. Div. 1988); Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968). We conclude that plaintiff misconstrues the applicable case law regarding the need for a plenary hearing, rendering her argument without merit.
First, defendant correctly points out that the case law cited by plaintiff is inapplicable in the present case because the judge neither "accept[ed] the assertions of one party over the other" nor decided the case "merely on the basis of conflicting affidavits." Instead, the record demonstrates that the judge based his modifications upon uncontested evidence, including copies of checks, pay stubs, and probation records, clearly indicating the amount of money that defendant paid to plaintiff for child support. The copies of defendant's checks in the record were clearly signed and cashed by the plaintiff. The only truly contested issue was defendant's request to be credited for cash payments he allegedly made to plaintiff, but for which he could produce no paper trail. However, the judge declined to give defendant credit for these purported payments based on lack of supporting evidence.
In Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976), we clearly held that a plenary hearing was not required in every contested proceeding for the modification of the terms of a judgment or order relating to child support. We stated:
Tancredi [v. Tancredi, 101 N.J. Super. 259 (App. Div. 1968)] expressly recognizes the power of a trial judge to hear and decide motions or orders to show cause exclusively upon affidavits. See R. 1:6-1, R. 1:6-6 and R. 4:67-5. It is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in deciding such factual issues, that a plenary hearing is required. See Tancredi v. Tancredi, supra at 262; (citations omitted). Thus, where, as here, the affidavits do not show the existence of a genuine issue of material fact, the trial judge need not take oral testimony, and may decide the motion without a plenary hearing.
An inflexible rule requiring a plenary hearing on every application for a modification of a judgment or order relating to alimony or support would impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants.
The undisputed record of cashed checks and wage garnishments presented in this case allowed the judge to make a determination without the need for a plenary hearing. There were simply no factual disputes precluding a recalculation of arrearages based upon this overwhelming evidence. The amount paid by defendant was clearly proven and the judge simply modified the prior child support orders to reflect these payments. It should be noted that plaintiff has never made a proffer of what evidence she would produce at a plenary hearing to refute defendant's documentary proofs. Thus, plaintiff's reliance on the Tancredi line of case law is misplaced and the trial judge was well within his discretion when he modified the child support payments without a plenary hearing.
Plaintiff argues that the judge should have held an ability to pay hearing prior to reducing or otherwise modifying the previously ordered enforcement mechanisms established through prior applications to the court. Plaintiff complains that the court should not have removed highly effective enforcement tools, such as maximum wage garnishment, allowing plaintiff to collect outstanding child support from the otherwise uncooperative defendant, without at least conducting a hearing.
"[A] court cannot order [an individual] incarcerated for failure to pay his support obligation until it has determined that he has the ability to pay on the basis of evidence adduced at a hearing at which he has had the opportunity to testify." Saltzman v. Saltzman, 290 N.J. Super. 117, 123 (App. Div. 1996) (citations omitted). Thus, an ability to pay hearing is required when an individual failing to pay child support faces incarceration and claims that an inability to pay provides a valid excuse for non-payment.
In the present case, there was no reason to incarcerate defendant, making an ability to pay hearing unnecessary. Defendant was currently paying arrearages in child support through wage execution and made his financial situation clear through his certification, Case Information Statement, and pay stubs submitted to the court. The crux of the judge's decision was to reduce defendant's financial obligations to plaintiff, based upon past child support paid. No ability to pay hearing was required.
Plaintiff argues that the judge erred when he modified and vacated the prior order that garnished defendant's wages at the maximum rate allowed by law (sixty-five percent of net pay). See 15 U.S.C. § 1673; N.J.S.A. 2A:17-56. Plaintiff contends that the trial judge's decision in this regard, in the absence of specific findings and without the benefit of a hearing, amounted to an abuse of discretion. Plaintiff maintains that this harsh enforcement tool was the only mechanism/method that was effective in making defendant live up to his child support obligations. Indeed, it does appear from the record that defendant only retained counsel to seek modification of child support after the court ordered the maximum wage garnishment.
Nevertheless, the decision to reduce wage garnishment to $125.00 a week does not amount to an abuse of discretion and, as noted above, is logical given the findings of the court. The record makes clear that plaintiff obtained enforcement orders based upon incorrect arrearage amounts, resulting from her failure to disclose substantial amounts of payment that defendant made to plaintiff for child support and college expenses between 1985 and 2001. Thus, the judge was well within his discretion to modify defendant's payment structure in light of the change in the amount of arrearages calculated. Although defendant still concededly owes a substantial amount of money to plaintiff in support and educational costs, the judge was well within his discretion in ordering defendant to satisfy these debts through a periodic payment of arrearages in the amount of $125.00 a week. See R. 5:3-7.
In her cross-motion of March 2006 plaintiff sought immediate enforcement of the $500 counsel fee award made by Judge Hollenbeck in August 2001 and the $2,530 fee award made by Judge Carroll in his March 2003 order. Plaintiff argues that defendant returned to court in January 2006 "with unclean hands" and that he "should not have been rewarded" for doing so by virtue of the judge's failure to address this claim. Defendant responds that due to plaintiff's "fraudulent conduct" in misrepresenting his payments to the courts that entered the fee awards, plaintiff is the one that should not be rewarded. To the extent that plaintiff relied on defendant's inheritance from his mother, defendant replied that he has not yet received any inheritance and that in any event his anticipated inheritance is not a "marital asset" that can be reached for payment of counsel fees, citing R. 3:3-5.
It is true that the judge did not resolve this issue. Accordingly, we remand for that purpose. If the judge concludes that plaintiff's prior applications which resulted in the fee awards were based on knowing misrepresentations, those awards should be vacated. If the judge concludes otherwise, the payment of those amounts should be addressed.
In the same vein, plaintiff appeals the judge's refusal to award counsel fees in connection with her 2006 cross-motion. What we have said concerning the prior fee awards is applicable here as well. The hearing on remand will also address this issue.
Finally, plaintiff claims that in modifying the prior child support orders the judge failed to calculate interest on the outstanding arrearages, pursuant to R. 5:7-5(g) and Pryce v. Scharff, 384 N.J. Super. 197 (App. Div. 2006). Defendant responds that, here too, plaintiff's fraudulent conduct should bar the requested relief. In addition, defendant points out that both the cited rule and Pryce contemplate that the obligee calculate the interest deemed to be due and present that calculation to the court for enforcement.
On remand plaintiff will have the opportunity to present her interest demand to the judge, who will, as with the counsel fee requests, decide if any, and if so how much, interest is owed by defendant as a result of plaintiff's alleged misconduct. We express no view on the matter.
Thus, we affirm the order under review insofar as it modified defendant's outstanding support obligations without a plenary hearing or an ability to pay hearing, and modified the garnishment of defendant's wages. We remand for further proceedings on the issues of prior and present counsel fee awards and interest on outstanding obligations.
Affirmed in part, remanded in part for further proceedings.
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