December 13, 2007
FRANK SALAMONI, PLAINTIFF-APPELLANT,
MARILYN SALAMONI, A/K/A MARILYN ZOVAK. 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 19, 2007
Before Judges Parker and R. B. Coleman.
Plaintiff Frank Salamoni appeals from an order entered on October 20, 2006 denying his application for a stay of an arrest warrant to be issued in the event he failed to make a lump sum child support payment ordered by the court on September 29, 2006.
The background leading to this appeal is summarized as follows. A comprehensive judgment of divorce was entered on August 21, 2003 after a trial. The judgment addressed custody and parenting time, child support, equitable distribution, health and life insurance, allocation of college expenses, allocation of tax deductions and other tax issues.
Plaintiff has been disputing the calculation of his support payments with the Probation Department since before the judgment of divorce was entered. In July 2003, the trial court entered an order requiring "Probation to provide a copy of all information held in [p]laintiff's file . . . within thirty (30) days." In an order entered on September 26, 2003, the court required probation "to comply with the May 23, 2003 [o]rder to recalculate child support and arrears, and to provide the source of the numbers they use to make this re-calculation." On November 21, 2003, the court ordered the Probation Department "to supply Plaintiff with the complete Probation file . . . specifically to provide all information for . . . the months of April 2003 - October 2003." That same order further required the Probation Department "to credit Plaintiff's account in the amount of $498 for the month of January 2002 support payments."
In an order entered on April 16, 2004, the Probation Department was again ordered "to supply Plaintiff with the complete Probation file . . . specifically to provide all the information for . . . the months of April 2003 to October 2003" and "to recalculate child support and arrears, and to provide the source of the numbers they use to make this re-calculation and their methodology."
On April 1, 2005, the court entered an order requiring Probation "to supply the Plaintiff with requested items." On November 29, 2005, yet another order was entered staying the Probation Department's wage garnishment of plaintiff's income "pending final resolution of the September 15, 2005 [o]rder."
On September 28, 2006, plaintiff had a hearing before a Probation Department hearing officer, during which plaintiff claimed that the Probation Department records and audit were incorrect and that he had proof of payments not credited to him. At the conclusion of the hearing, the hearing officer determined that $1,000 in arrears was due and owing. The hearing officer ordered that the $1,000 payment be made within one week or a bench warrant would issue.
Plaintiff appealed the hearing officer's determination to the Superior Court and, on September 29, 2006 he appeared in the Family Part, claiming that the arrears calculated by the Probation Department were wrong, that he had overpaid and that money was due to him. During the Superior Court hearing, a representative of the Probation Department agreed to meet with plaintiff the following week to review all of plaintiff's documentation and determine whether the Probation Department audit was correct. The trial court told plaintiff that this was his opportunity to present what he wanted to the Probation Department. The trial court also modified the Probation Department order so that plaintiff would have the opportunity to present his arguments before an arrest warrant could be issued.
Unfortunately, we have not been provided with a transcript of the meeting and there is no indication in the record that the meeting was recorded. Defendant was apparently not present at the meeting and her pro se brief makes no representations respecting the meeting. Consequently, we are at a loss to determine what occurred at the meeting, after which the October 20, 2006 order, which is subject to this appeal was entered.
During the course of our considering this appeal, we became aware that a plenary hearing was conducted on December 5, 2006.*fn1
Since it was likely that this plenary hearing addressed the issues raised in this appeal, we requested a copy of the transcript. Plaintiff objected but finally provided the transcript on November 13, 2007, accompanied by a letter brief continuing his objection to providing the transcript and arguing that the December 5, 2006 hearing was not relevant to the issues raised in his appeal. We disagree.
In his appeal, plaintiff argued in Point One that "[t]he [c]court [b]elow abused its discretion by entering an [o]rder allowing for the issuance of a [w]arrant in violation of prior orders;" and in Point Two that "[t]he [c]court [b]elow abused its discretion when it based its findings on unsubstantiated testimony and perjury." Plaintiff's arguments were based on the fact that a warrant was issued on the Probation Department's recommendation without his having a plenary hearing to contest the Probation Department's records of his payments and credits.
We note initially that R. 5:7-5(a) provides for the Probation Department to apply to the court on behalf of a child support obligee for a warrant if it determines that a child support obligor is in arrears amounting to support payable for fourteen days. An arrest warrant may then be issued to bring the obligor to court. Scalchi v. Scalchi, 347 N.J. Super. 493, 495 (App. Div. 2002). "Before a defendant can actually be incarcerated, however, a hearing must be held to determine if the [obligor] has the ability to pay and is presently capable of complying with the order." Ibid. (citing Saltzman v. Saltzman, 290 N.J. Super. 117 (App. Div. 1996)). At the ability-to-pay hearing, the trial court must advise obligors subject to incarceration for non-payment of child support that they have a right to appointed counsel if they demonstrate indigency. Pasqua v. Council, 186 N.J. 127, 146 (2006).
When obligors challenge the amount of arrears, they may seek a hearing before a child support hearing officer who "shall calculate the child support obligation, payment on arrears, and total arrears owed." R. 5:7-4(c). Child support hearing officers are authorized to hear evidence, make recommendations to the court concerning enforcement of child support, R. 5:25-3(b)(5), and "recommend that the court adjudicate that a person has failed to comply with an order . . . and recommend incarceration for failure to comply with [a child support order]." R. 5:25-3(c)(10)(A). Moreover, "[a] party not accepting a recommendation entered by the Child Support Hearing Officer shall be entitled to an immediate appeal of the recommendation to [a Family Part judge]." R. 5:25-3(d)(2). An obligor not satisfied with the determination made by the Family Part judge may appeal to the Appellate Division. R. 5:25-3(d)(3).
It appears from the record now before us that these procedures were followed. Nevertheless, plaintiff was still not satisfied with the audit provided to him by the Probation Department. At the December 5, 2006 plenary hearing - conducted after plaintiff filed this appeal - Probation Officer Gary Baumer testified that at a September 28, 2006 enforcement hearing, plaintiff was not permitted to present his receipts to the hearing officer because the issue was enforcement, not the amount of arrears. Baumer indicated, however, that on September 21, 2006 he went back, [and] got a complete pay history, while Ms. Mingin sat with [plaintiff] and explained every line. If he [said] . . . it showed no payments on that line, we explained to him that the payments were included on the next line. We were very . . . diligent explaining to him every line on the audit, and how he can prove documentation of payments that weren't included on audit.
During the December 5, 2006 plenary hearing, the court gave plaintiff every opportunity to question the four probation officers he had called as witnesses. After hearing extensive testimony, the court asked plaintiff if there was "[a]nything else that you wish to present to this court [with] your own proofs that you believe that the audit is incorrect?" Plaintiff responded, "No."
The court proceeded to question the officers regarding the Probation Department's compliance with earlier orders to provide plaintiff with information in his file. The court then asked plaintiff, "Well let me ask you this, as I understand it now, at this moment, you no longer take issue with the number that probation states you owe them?" Plaintiff responded, "Let me just say, I would tend to agree with that they explained it." Plaintiff further stated that he was no longer disputing the arrears. Nevertheless, he insisted that he was still entitled to certain documents "for me to make sure everything is correct."
Plaintiff claimed at the hearing that prior Probation Department errors resulted in "marks" for bad debts on his credit report. He maintained that the "marks" on his credit report from 2003 were never removed but he could not demonstrate that they were still there. Plaintiff represented that he had an April 2006 credit report showing that he owed $6,307 in child support, but he could not demonstrate that the report was inaccurate. Nevertheless, the court allowed plaintiff to further question the probation officers about compliance with orders dating back to 2003, and plaintiff continued to demand documentation regarding payments and credits from that time.
At the conclusion of this lengthy and exhaustive hearing, the judge asked plaintiff if "there [was] anything else then that you want to say . . . regarding the issues with probation that we haven't talked about today?" Plaintiff responded, "Just about the warrant papers that I would like to get from 2004," referring to an arrest warrant that was issued and subsequently rescinded. The judge indicated that she would place her ruling and reasons on the record and enter an order the next week. Plaintiff has not provided a transcript of the court's ruling or order, however. Nevertheless, the order entered after the December 5, 2006 hearing would have superseded the October 20, 2006 order, which is the subject of this appeal.
Given plaintiff's admission during the December 5, 2006 hearing that he does not dispute the amount of arrearages; and given the lengthy and exhaustive examination of plaintiff's Probation Department records during that hearing; and given plaintiff's inability to demonstrate that the probation records were inaccurate at the time the October 20, 2006 order was entered, we are satisfied that the issues raised by plaintiff in this appeal are moot. We find no abuse of discretion by the trial court in "entering an order allowing for the issuance of a warrant." From the record now before us, it is apparent that the Probation Department and the court complied with the Part V Rules of Court governing enforcement of child support. We are further satisfied that plaintiff's argument that the court "based its findings on unsubstantiated testimony and perjury" lacks sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(A) and (E).
Finally, with respect to plaintiff's supplemental letter brief dated September 7, 2007, we decline to consider his bankruptcy argument, which was not raised in his initial brief. In the supplemental letter brief, plaintiff essentially argues that enforcement of child support is no longer within the jurisdiction of the Superior Court because child support arrears are included in the bankruptcy trustee's plan for discharge of his debts. In support of his argument, plaintiff submitted a copy of a Chapter 13 Plan presented to the U.S. Bankruptcy Court on October 10, 2006 - two months before he filed the notice of appeal.
In support of his bankruptcy argument, he provided (1) a notice of bankruptcy case filing dated September 21, 2005; (2) a letter dated September 23, 2005 from him to the Family Part advising of the bankruptcy filing; and (3) a Chapter 13 Plan and motion submitted to the bankruptcy court on October 10, 2006 indicating that he proposed to pay child support arrears totaling $1,492.34 at the rate of $250 per month for sixty months.
Included with plaintiff's September 7, 2007 supplemental letter brief were (1) a letter from his attorney to him dated July 11, 2007 indicating that on July 10, 2007 the bankruptcy court confirmed a plan for plaintiff to pay child support arrears totaling $5,618.34 at the rate of $540 per month for thirty-eight months; and (2) a notice dated October 13, 2006 from the Middlesex County Support Enforcement Unit stating that the "order for a lump sum payment for October 10, 2006 or issuance of a bench warrant will not be withdrawn at this time" because the plenary hearing was scheduled for December 5, 2006.
We decline to consider plaintiff's bankruptcy argument in this appeal for the following reasons: First, plaintiff has not provided any orders from the bankruptcy court regarding approval of a payment plan for arrearages; nor has plaintiff provided a sworn statement by his attorney regarding the bankruptcy proceedings. The attorney's July 11, 2006 letter to plaintiff is not evidentiary. N.J.R.E. 802. Second, although plaintiff submitted a letter dated September 23, 2005 to the Family Part advising that he was "seek[ing] [C]hapter 13 bankruptcy protection," he did not raise the bankruptcy issue in the September 2006 hearings; nor did he raise it in the December 5, 2006 plenary hearing. Consequently, the trial judge did not have the opportunity to consider whether plaintiff's bankruptcy affected the enforcement of child support in Middlesex County. Third, under the U. S. Bankruptcy Code, 11 U.S.C.A. § 523(a)(5), child support is not a dischargeable debt.
The appeal is dismissed as moot.