May 2, 2008
JOSEPH M. DE ANGELIS, JR., PLAINTIFF-APPELLANT,
LORRAINE LACOSTE, F/K/A LORRAINE DE ANGELIS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-190-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 21, 2008
Before Judges Gilroy and Baxter.
Plaintiff Joseph M. DeAngelis, Jr., appeals from the June 12, 2007, order of the Family Part. We affirm.
The parties were married on September 16, 1989, and one child, a boy, was born of the marriage in October 1990. In contemplation of divorce, the parties entered into a consent order on August 5, 2003, which addressed the issues of alimony, child support, and equitable distribution of their marital assets and debts. Among other matters, the order: 1) provided "[t]hat the [plaintiff's] pension will be subject to a [Qualified Domestic Relations Order (QDRO)]*fn1 and distributed in accordance with that Order; and the parties shall retain the services of an expert to prepare said [QDRO]"; and 2) set plaintiff's child support obligation at $115 per month.
On December 1, 2003, the parties were divorced, and the order of judgment incorporated the provisions of the August 5, 2003, order. For reasons that appear to lie, at least in part, at the feet of defendant or her attorney, the QDRO was not prepared and submitted to the trial court until twenty-one months later. On September 3, 2005, the trial court entered the QDRO, which created and recognized the existence of defendant's right, as plaintiff's former spouse, to receive 17% of plaintiff's monthly pension benefits from the United States Coast Guard. The order provided in pertinent part:
5. Assignment of Interest. The Member Assigns to the Former Spouse an interest in the Member's Disposable Retired pay. The Former Spouse shall receive payments at the same time the Member receives payments and payments shall terminate upon the death [of the] Member or the death of the Former Spouse. Former Spouse's entitlement shall be paid directly to her and shall be paid regardless of her marital status.
9. Recovery of Excess Amount. In the event that the Member is inadvertently paid any benefits that are assigned to the Former Spouse pursuant to the terms of this Order, the Member shall forthwith pay such amount so received directly to the Former Spouse within ten (10) days of receipt. Former Spouse agrees that any future overpayments to her are recoverable and subject to involuntary collection from her or from her estate.
Lastly, the QDRO provided that it was defendant's obligation to send a copy of the QDRO, together with other necessary supporting documents and information, to the United States Coast Guard.
On November 29, 2004, an order was entered changing the physical custody of the parties' son to plaintiff. Although plaintiff had requested that the trial court direct defendant to pay child support for their son, the order did not impose such an obligation on defendant. No appeal was taken from the order of November 29, 2004. On January 12, 2006, the Court of Common Pleas of Bucks County of Pennsylvania ordered defendant to pay child support for the parties' son, retroactive to November 14, 2005.
On June 23, 2006, defendant filed a motion seeking to amend the QDRO to include pension benefit payments retroactive to December 1, 2003, the date of divorce. Although plaintiff did not challenge defendant's right to receive her portion of his pension benefits retroactive to December 1, 2003, plaintiff requested an offset for child support from the time of the change of custody, November 29, 2004, to November 14, 2005, the retroactive date of the order fixing defendant's child support obligation. On July 21, 2006, an order was entered granting defendant's motion without offset. Again, no appeal was taken from that order.
On May 9, 2007, defendant filed a motion seeking an order: 1) to compel plaintiff to reimburse her "for pension payments he received without deduction required by the [QDRO]"; 2) to compel plaintiff to execute a note and mortgage for the amount due until payment is made; and 3) for counsel fees and costs. In support of the motion, defendant certified that: between December 2003 and December 2006, plaintiff had received $21,360.16 of her portion of plaintiff's military pension; plaintiff received $67,759.64 in June 2005 from the sale of their marital residence; and defendant continues to pay child support in the amount of $652 per month via a wage execution.
As before, plaintiff did not challenge defendant's right to receive that portion of his pension as determined by the QDRO. Nor did plaintiff deny that he had received defendant's portion of the pension benefit payments and had failed to turn them over to her, as asserted by defendant. However, in opposition to the motion and without filing a cross-motion for affirmative relief, plaintiff requested that the court: 1) provide him with an offset for child support that defendant did not pay between November 29, 2004, and November 14, 2005; 2) provide him with an offset for excess payments he paid against the mortgage on their marital residence until its sale, because of defendant's failure to list and sell the residence in a timely fashion; and 3) grant him alimony because of a disability he suffered as the result of an automobile accident post-divorce.
In addition, plaintiff requested that the court deny defendant's application to compel him to pay the portion of the pension benefits due to her in a lump sum, not only asserting that the delay in perfecting the QDRO with the United States Coast Guard was caused solely by defendant or her attorney, but also that he was financially unable to pay the monies, having used his portion of the proceeds from the sale of their marital residence to move into a new home with their son in Pennsylvania. On June 12, 2007, the trial court entered an order supported by a written memorandum of decision, which directed that plaintiff: 1) immediately pay defendant $21,360.16 for her share of the pension benefits that plaintiff had received since December 2003; 2) execute a note and mortgage until the sum is paid in full; 3) pay defendant attorney fees and costs in the amount of $1,380; and 4) pay all monies within sixty days of the date of the order. In support of his decision, the trial judge stated in pertinent part:
While the [QDRO] makes provision for the payment of that which is owed directly to [defendant], this has evidently not occurred for some reason. That the direct payment arrangement has not been established does not take away from the fact that Defendant was entitled to money outlined in the Order. Defendant presents proof that Plaintiff received the following pension payments: 2004 - $39,819.00; 2005 - $39,864.00; 2006 -$40,944.00, and alleges that a portion of those payments, $21,360.16, are rightfully hers. The court finds Defendant's statements to be corroborated by evidence submitted and finds that Plaintiff's failure to pay thus far constitutes a willful violation on the part of Plaintiff of the Order of July 21, 2006 and the Order of September 7, 2005.
Following plaintiff's filing of a notice of appeal, defendant filed a motion in the trial court on August 20, 2007, seeking to enforce litigant's rights because of plaintiff's failure to comply with the order of June 12, 2007. Defendant opposed and cross-moved, seeking a stay of the June 12, 2007, order pending appeal. On October 5, 2007, the trial court entered an order supported by a written memorandum of decision, granting defendant's motion, reducing the amounts awarded under the June 12, 2007, order to a judgment in the total amount of $22,740.16 and denied plaintiff's motion. Plaintiff did not file an amended notice of appeal to include the order of October 5, 2007.
On appeal, plaintiff argues: 1) the trial court erred in entering the June 12, 2007, order because: a) he did not cause the delay in the filing of the QDRO with the United States Coast Guard, and the court should not have held him responsible for the failure of the United States Government to forward defendant her share of the pension benefits; b) the trial court should have granted him credit or an offset for child support payments in the amount of $8,238.60, which plaintiff asserts that defendant failed to pay between November 29, 2004, and November 14, 2005; c) the trial court failed to give him credit for excess payments he made against the mortgage on their marital residence because of defendant's failure to timely list and sell the property; and d) the trial court erred in compelling him to make a lump sum payment to defendant, because he does not presently have the ability to pay the funds; and 2) the trial court evidenced bias and prejudice against him during the various trial court proceedings.*fn2
"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). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). It is against these standards that we address plaintiff's arguments.
We have considered plaintiff's arguments in light of the record and the applicable law. We find that all of the arguments made are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
Plaintiff argues that he was not obligated to immediately turn over to defendant her share of the pension benefits when received by him because defendant had not taken the necessary steps to perfect the QDRO with the United States Coast Guard. Contrary to plaintiff's actions in unilaterally retaining defendant's share of the pension benefits, the August 5, 2003, order specifically provided in Paragraph No. 9 that "in the event that the Member is inadvertently paid any benefits that are assigned to the former spouse pursuant to the terms of this order, the Member shall forthwith pay such amount so received directly to the former spouse within ten (10) days of receipt." Accordingly, it was plaintiff's obligation to immediately pay defendant her share of the pension benefits within ten days of receipt.
Plaintiff contends that he should have received a credit or offset for the child support defendant did not pay from the time when their son's physical custody was changed, November 29, 2004, to November 14, 2005, which was the date that defendant's child support obligation was ordered to commence pursuant to the Pennsylvania order. Plaintiff did not appeal from the order of November 29, 2004, which did not include a provision directing defendant to pay child support; nor does it appear in the record that plaintiff ever appealed from the January 12, 2006, Pennsylvania order, which limited the retroactive effect of defendant's obligation to pay child support to November 14, 2005. Moreover, plaintiff did not affirmatively cross-move in the trial court in June 2006, or May 2007, for an order seeking to compel defendant to pay child support for that time period.
Lastly, plaintiff contends that he does not have the ability to pay the monies owed to defendant as directed by the June 12, 2007, order; however, that amount has been reduced to judgment by the October 5, 2007, order. Because the order to pay has been reduced to a valid judgment, defendant has the legal right to attempt collection on that judgment.