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Berard v. Pfeil

March 7, 2008

NANETTE BERARD, N/K/A NANETTE GANGUZZA PLAINTIFF-RESPONDENT,
v.
LARRY PFEIL, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-210-93.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 30, 2008

Before Judges Lihotz and Simonelli.

Defendant appeals from a February 26, 2007 Family Division order. Following a plenary hearing as directed by our remand, Berard v. Pfeil, No. A-0886-05 (App. Div. July 17, 2006), the Family Part judge rejected defendant's argument that laches barred payment of child support arrearages. The arrears accrued pursuant to a New Jersey child support order when defendant ceased payments, as directed by Texas officials, when his child reached age eighteen. The February 26, 2007 order required defendant to continue paying $150 per week toward the outstanding child support arrearages. We affirm.

On April 25, 1992, plaintiff on behalf of the child, who both reside in New Jersey, sought enforcement of the March 19, 1990 New Jersey order requiring defendant, a Texas resident, to pay child support. Plaintiff filed an enforcement petition pursuant to the law then in effect, the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), N.J.S.A. 2A:4-30.24 to -.64, and a hearing was scheduled with the District Court of Harris County Texas. On July 12, 1993, the Texas court entered an order enforcing the New Jersey order. Thereafter, when the parties' daughter reached age eighteen, the Office of the Texas Attorney General notified defendant his support obligation ended. An order closing the Texas case was entered on March 29, 2004. Because the child had not completed high school, plaintiff commenced efforts through the Morris County Probation Department to reinstitute defendant's child support obligation. Plaintiff hired a locator service to obtain defendant's address, telephone number, and place of employment.

In May 2005, defendant filed a motion in Morris County requesting the child's emancipation. That motion was denied.

Defendant appealed, arguing among other things that he relied on the closing of the Texas file and the fact that no subsequent actions by plaintiff were presented for reinstatement. He maintained that he committed his financial resources to the dental needs of his younger children. The failure to address the laches defense in the prior proceeding resulted in our remand.

Judge Weisenbeck held a plenary hearing on January 5, 2007. In addition to receiving the testimony provided on that date, he requested each party submit additional pertinent documentation.

In a written opinion dated February 26, 2007, the judge determined plaintiff's delay in seeking reinstatement of child support was not "inexcusable or unexplained." Although plaintiff had not filed a motion to reinstate support, she engaged in efforts throughout 2004 until early 2005 to continue the obligation on behalf of the child through the county probation department. Further, the documentation submitted by defendant did not support his claim that he recommitted his resources relying on the fact that his support obligation had come to an end. Judge Weisenbeck concluded the facts, as presented, obviated the application of laches.

Defendant's appeal challenges the trial court's factual findings and the resultant legal consequences. Specifically, he cites as error the determination that plaintiff did not "sit on her rights." Defendant maintains plaintiff was required to file a motion to reinstate support. Defendant also claims error in the finding that he had not changed his financial position. Finally, defendant contends that Texas entered the controlling order, which defines the emancipation event.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Id. at 413. If evidence is lacking to sustain the court's finding, it is only then that the findings must be set aside. Where our review addresses questions of law, however, we are not bound to defer to the legal conclusions of the lower court. See Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999) (stating "matters of law are subject to de novo review").

We conclude defendant's challenges to the court's factual findings are unavailing as we discern "adequate, substantial and credible evidence" supports Judge Weisenbeck's determinations.

Cesare, supra, 154 N.J. at 412. The judge's opinion details (1) plaintiff's actions to reinstate the child support order; (2) plaintiff's actions to locate defendant; (3) the commencement and nature of defendant's commitment for his children's orthodontic care, and the amount of the obligation; and (4) defendant's progressively increasing income from 2002 to 2005 showing his ability to pay support. Additionally, the judge expressly articulated credibility findings supporting the determinations made. Overall, these findings are well supported by the ...


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