On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-557-90.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Payne and Sapp-Peterson.
Defendant, Raul O. Lasluisa, appeals from the June 28, 2006 Chancery Division, Family Part, order denying his motion to reconsider the court's March 31, 2006 order transferring the matter to the Appellate Division. We affirm the denial of defendant's motion for reconsideration and the transfer of the matter to the Appellate Division. We remand the matter to the Department of Human Services (DHS), Division of Family Development (DFD), Office of Child Support Programs Financial Institution Data Match (FDIM) Unit (agency), for further proceedings because the agency decision was unaccompanied by the requisite findings of fact. In re Issuance of Permit by Dep't of Envtl. Prot., 120 N.J. 164, 179-180 (1990).
The underlying order from which defendant sought reconsideration stems from child support arrears chargeable to defendant in the amount of $93,939, for which the agency issued a levy against a bank account maintained at Elizabeth, NJ Firemen's F.C.U. The account was listed in defendant's name and the name of Jimmy L. Rios, defendant's son. Defendant was issued a notice of levy against the account on November 7, 2005. The notice advised defendant of the procedures to contest the levy:
If you wish to Contest this action, you must contact the above agency in writing by mail and/or fax within thirty (30) calendar days from the date of this Notice. Any Contest request must include your name, address and account number as well as a telephone and/or fax number where you can be reached during the business day. You should include specific reason(s) for your Contest as well as any supporting documentation. Upon receipt and review of the Contest request by the FIDM Unit, an acknowledgment will be mailed an/or faxed to you along with a request for any additional documentation that may be necessary to resolve the Contest. Following a review of the material received, a Notice of Contest Resolution/Right to Appeal will be mailed and/or faxed to you indicating the amount to be deducted from your account, or that the levy will be canceled.
On March 13, 2006, defendant filed an order to show cause in Superior Court seeking to join his son, with whom he shares the bank account, as an indispensable party, and also to permanently restrict the agency from levying on the account. It is unclear whether the agency was given notice of the motion.*fn1
In any event, it filed no opposing papers. The trial court denied defendant's motion, finding that defendant's evidence failed to identify the source of the funds on deposit. The court reasoned that "[w]here a joint bank account exists that is being levied upon, the burden is on the owners of the account to prove that the monies entered into the account belong only to the party who does not owe arrears."
Defendant filed a motion for reconsideration. At that point, the agency filed its first appearance in the action, opposing reconsideration. It argued that the court lacked jurisdiction to entertain the matter and that the review of its action was exclusively reposed in the Appellate Division. The court agreed. It entered an order denying reconsideration and transferring the matter to this court.
Following the transfer, on January 23, 2007, defendant filed a motion before this court seeking a stay of the levy issued against the FCU account. On January 30, 2007, the agency issued an agency-imposed stay of its levy. Subsequently, the agency opposed defendant's motion for a stay, arguing that the issue was moot. In view of the agency-imposed stay, by order dated February 22, 2007, we denied the motion "as moot."
On appeal, defendant argues that because there is no "contrary intent manifested," the levy is unenforceable as his son is the sole owner of the entire proceeds contained in the levied account. In response, the agency urges that the motion judge properly held that in the absence of evidence that established the source of the funds, the account belonged in "equal shares to all parties having the present right of withdrawal."
At the outset, we are satisfied the motion judge properly held that jurisdiction to review the agency action is reposed exclusively within the Appellate Division. Mutschler v. N.J. Dep't of Envtl. Prot., 337 N.J. Super. 1, 9 (App. Div.), certif. denied, 168 N.J. 292 (2001). See also Pascucci v. Vagott, 71 N.J. 40, 51-54, (1976); Hosp. Ctr. at Orange v. Guhl, 331 N.J. Super. 322, 329-30 (App. Div. 2000). Lack of jurisdiction was not the basis for the trial court's initial decision. However, since the agency did not participate in the first motion, apparently as the result of lack of notice, the court did not err in considering the jurisdictional issue when the agency filed opposition to defendant's reconsideration motion. See Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996) (holding that reconsideration pursuant to Rule 4:49-2 is appropriate if there is good reason for the court to reconsider its initial judgment or order in light of new information).
It is well settled that our review of a decision from an administrative agency is quite limited. Brady v. Bd. of Review, 152 N.J. 197, 209 (1997). Generally, an administrative decision carries with it a presumption of reasonableness, see City of Newark v. Natural Res. Council Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980), and will not be disturbed on appeal unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial, credible evidence in the record as a whole. In re Taylor, 158 N.J. 644, 657 (1999); Brady, supra, 152 N.J. at 210; Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). That deference represents our recognition of the ...