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Graulich v. Stochel


May 22, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-559-94H.

Per curiam.


Argued April 16, 2008

Before Judges Lisa and Lihotz.

Defendant, Robert Stochel, appeals from the denial of his motion to reconsider the June 12, 2007 order (1) denying his motion to vacate a provision in a default judgment order entered on September 8, 2006 and filed on September 13, 2006 awarding plaintiff, Laurie Graulich, more than $21,000 in child support arrears for the period from November 1993 to September 1997, (2) refusing to emancipate the couple's two children retroactive to the dates of the son's eighteenth birthday and the daughter's professional school graduation, and (3) awarding $1930 in counsel fees to plaintiff.

Defendant argues that the trial court repeatedly misconstrued his motion to vacate the default judgment as an untimely motion for reconsideration, and that defendant presented a timely and sufficient basis to vacate the default judgment. He further argues that the judge erred in setting the emancipation date for the children as the date of the filing of defendant's motion, rather than the earlier requested dates. Finally, defendant argues that the judge failed to make adequate factual findings regarding the counsel fee award.

We agree with defendant with regard to the child support arrears and the counsel fee award. We vacate the trial court order and (1) remand for a plenary hearing to determine plaintiff's claim of a child support arrearage, and (2) order that the court reconsider the counsel fee award after conclusion of the remand proceedings and, in ruling upon any fee application, set forth a sufficient statement of findings, giving due consideration to all applicable factors provided by statute and court rule. We affirm the order regarding emancipation.

The parties married in 1983 and divorced in 1993. Two children were born of the marriage, Megan (born July 8, 1986) and Wesley (born November 18, 1988). The divorce judgment incorporated the parties' agreement requiring defendant to pay $479 per month in child support.

In 1999, plaintiff moved for an order to set child support in accordance with the Guidelines and for other relief not relevant in this appeal, which resulted in the entry of an order on August 9, 1999 setting child support at $225 per week. In 2003, the Middlesex County Board of Social Services filed a motion on plaintiff's behalf for an upward modification of child support and for a determination of the amount of arrears, if any. Significantly, in the 1999 and 2003 motions, plaintiff made no mention of any child support arrears.

On August 2, 2006, plaintiff filed a pro se motion seeking enforcement of defendant's agreed-upon contribution to educational expenses for the children, reimbursement of medical expenses, adjustment of visitation rights, and enforcement of child support at the rate provided in the divorce judgment "from 11/93 to 9/97 approx amount owed $21,821." In her supporting certification, plaintiff set forth the basis for the other forms of relief she sought, but made no mention of not having received child support during the time alleged in her notice of motion.

Plaintiff served defendant by regular and certified mail. Defendant later admitted that he did not pick up the certified mailing at the post office, explaining that he knew it was from his former wife, he had no reason to believe court papers were involved, and he thought it was another of her alleged harassing communications. He later denied ever receiving the ordinary mailing. He did not respond, and the court entered an order granting the relief requested in plaintiff's unopposed motion, including the obligation to pay child support arrears for the time requested.

The order was entered on September 8, 2006, filed on September 13, 2006, and a copy received by defendant on September 16, 2006. Defendant promptly engaged the services of counsel on September 20, 2006 to address the order.

Before defendant's retained counsel filed an application with the court, plaintiff filed a pro se motion on October 17, 2006 to enforce litigant's rights with respect to the provisions of the September 8, 2006 order pertaining to educational and medical expenses. She mentioned nothing in her moving papers about the child support arrears. Through counsel, defendant cross-moved for an order "vacating" the prior order. In his certification, defendant referred to prior court orders reflecting that no arrears existed and stated: "That is because there were no arrears! . . . I was completely current and paid up-to-date in my child support payments."

The cross-motions came before the court on November 17, 2006. The parties settled many of the issues, which are not relevant on appeal, and placed the terms of settlement on the record. However, the parties could not settle the dispute over the child support arrears. The judge asked the pro se plaintiff to explain her long delay in pursuing the arrears. She said she approached defendant about the deficiency in 1997. He reacted in a hostile manner, but then began paying support after September 1997. She further stated that she believed she had lost the right to seek arrears in 1999, and that her attorney at that time did not ask about any arrears. There was some colloquy, but no clear decision on the issue. At the conclusion of the hearing, the court clerk questioned the judge about the entry of an order. The judge directed defendant's attorney to prepare a consent order on the issues settled and the rulings made that day from the bench, "with the exception of the $21,000."

Defendant's attorney prepared a proposed consent order and sent it to plaintiff on December 7, 2006. Paragraph three stated: "Child support for [the] period, 1993 to 1997, alleged to be owed by the Defendant to the Plaintiff, shall be decided by this Court." Plaintiff did not respond. Defendant's counsel forwarded the order to plaintiff a second time on December 15, this time advising that if there was no response counsel would submit it to the judge under the five-day rule. Plaintiff again did not respond. Defendant's attorney submitted it to the court under the five-day rule. Plaintiff submitted to the court some suggested language changes with respect to portions of the order, but made no objection to the language in paragraph three. The judge signed the order on January 19, 2007, which contained the language we have quoted in paragraph three.

One week later, defendant's counsel wrote to the court requesting a ruling on the "open" child support arrearage issue. Counsel raised the defense of laches. Counsel enclosed a proposed form of amended order that would vacate and supersede the January 19, 2007 order. The proposed order provided that the child support arrears set forth in the prior order were "VACATED [or] REINSTATED," and that "[t]he alleged child support arrears, if any, for the period of 1993 to 1997 . . . are set forth, by the court, as follows." The proposed order provided four blank lines for the court to enter the appropriate relief. The judge signed the order on February 15, 2007, but did not circle either "vacated" or "reinstated" and did not fill in the blanks.

Due to this oversight, defense counsel filed another motion to vacate the child support arrears and "to place a Ruling and/or Decision, on the record, as to #3 of the AMENDED ORDER, filed 2/15/07, wherein #3 of said AMENDED ORDER indicates that the child support alleged to be owed by the Defendant shall be decided by this Court." This motion, filed on April 18, 2007, also sought a declaration that the son and daughter be emancipated. Defendant sought emancipation of his son as of November 18, 2006, his eighteenth birthday, alleging that he dropped out of school prior to that date. He sought an effective date of January 30, 2007 for his daughter, the date she graduated from professional school.

On May 23, 2007, now represented by counsel, plaintiff filed a cross-motion to rescind the January 19 and February 15, 2007 orders, and to enforce the original order requiring defendant to pay child support arrears. Plaintiff sought counsel fees and costs, alleging defendant's failure to comply with prior orders. Opposing the motion to emancipate the children, plaintiff attached documents evidencing their enrollment in online educational programs. Plaintiff's only mention of the child support arrears in her certification was the conclusory statement that "[h]is arrears are real and remain unpaid," with no supporting facts or details.

The judge filed a comprehensive order on June 12, 2007. He refused to credit the "consent order" to which plaintiff never consented. The judge concluded that the twenty-day window within which to bring a Rule 4:49-2 reconsideration motion to challenge the September 8, 2006 order had closed prior to defendant's initial appearance in November 2006. Thus, "the request to vacate and/or reconsider" the order was denied as untimely. The judge apparently agreed that the children were emancipated, and he ordered their emancipation. However, without further explanation, he declined to set the effective dates requested by defendant, and instead ordered that emancipation would be effective as of April 18, 2007, the date of the filing of defendant's motion. Finally, the judge ordered defendant to pay $1930 in counsel fees and costs. Defendant's subsequent motion for reconsideration was denied, and this appeal followed.

Defendant argues that the judge erred in his treatment of defendant's application for relief as a motion to reconsider the September 8 order. The relief requested in defendant's notice of motion was to "vacate" the order. Thus, although defendant did not cite the rule pursuant to which he made his motion, the relief requested was to vacate an order pursuant to Rule 4:50-1. Indeed, an unopposed order requiring a defendant to pay child support arrears constitutes a default judgment for purposes of Rule 4:50-1. See, e.g., Monmouth County Div. of Soc. Servs. ex rel. Hall v. P.A.Q., 317 N.J. Super. 187 (App. Div. 1998), certif. denied, 160 N.J. 90 (1999). We agree with defendant.

Unlike a reconsideration motion, which must be filed within twenty days after service of the order, R. 4:49-2, a motion to vacate under Rule 4:50-1 must be made within a reasonable time, which, on some grounds, is limited to one year after entry of the order. R. 4:50-2. Defendant filed his motion less than two months after receipt of the order he wished to have vacated. The motion was timely with respect to all grounds provided for in Rule 4:50-1. Further, the court's presumed treatment of defendant's motion as an untimely motion for reconsideration would have deprived defendant of the only avenue to review the propriety of the default judgment. See Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992) (noting that "a direct appeal will not lie from a judgment by default" and "[t]he proper course is to apply to the trial court to vacate the judgment").

In essence, it appears that at the November 17, 2006 hearing, the judge may have intended to deny the motion to vacate with respect to the child support arrears. At the conclusion of the hearing, the judge asked defendant's counsel to submit a consent order reflecting the various rulings made or agreed upon that day, "with the exception of the $21,000." Because the consent order would presumably address the agreed-upon changes to the default judgment, this instruction would be consistent with a decision to leave intact the default judgment with respect to the child support arrears. However, if that was the intended disposition of the issue, it was never memorialized in an order. Instead, the controversial "consent order" characterized the child support as an open issue yet to be determined.

These circumstances present a conflict between the judge's oral opinion and the subsequent written order. In such circumstances, the oral opinion rendered from the bench controls. Pressler, Current N.J. Court Rules, comment 1 on R. 1:13-1 (2008) (citing Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (App. Div. 2002)). A clerical mistake in an order is subject to correction by the court. R. 1:13-1. Because the execution of the order "did not reflect a deliberative process but merely a clerical act," the court could correct the error in a subsequent order. Kustka v. Batz, 236 N.J. Super. 495, 499 (App. Div. 1989). For purposes of our analysis, we interpret the orders dealing with the child support arrearage to constitute, in their entirety, a decision to deny the motion to vacate. Our review therefore requires a determination of whether that disposition constituted a mistaken exercise of discretion.

Generally, motions for relief from a judgment should be granted sparingly. Pressler, Current N.J. Court Rules, comment 1 on R. 4:50-1 (2008). However, "the opening of default judgments should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). The trial court "should be guided by equitable principles" in its consideration of Rule 4:50-1 motions, and we defer to the court's granting or denying an application to open a judgment "unless it represents a clear abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). "All doubts . . . should be resolved in favor of the parties seeking relief." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993).

Defendant relies on several subsections of Rule 4:50-1, including (a) excusable neglect, (c) and (d) misconduct by an adverse party resulting in improper service of process, and (f) any other reason justifying relief. We focus our analysis on subsection (f).

Citing plaintiff's failure to seek the alleged arrears in 1999, defendant claims "[i]t is inequitable to require [him] to pay more than $21,000 based solely on his ex-wife's blithe statement that he never paid her." Defendant invokes the equitable defenses of laches and estoppel. He claims "[i]t is simply unfair to require [him] to pay arrears that allegedly began accruing more than a decade before his ex-wife made her motion." Further, in her 2003 motion (brought by the Board of Social Services), plaintiff also did not allege any pre-existing arrears. And, her moving papers that resulted in entry of the default judgment simply did not support entry of that judgment with respect to child support arrears because plaintiff never certified that defendant failed to make the payments. Even when the issue was more squarely presented, her response was nothing more than a certification that "[h]is arrears are real and remain unpaid."

The permissible reach of subsection (f)'s catch-all provision defies simple categorization. Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966). As the Supreme Court explained, "the very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." Ibid.; see Baumann v. Marinaro, 95 N.J. 380, 395 (1984) ("[E]ach case must be resolved on its own particular facts."). "'[T]o establish the right to such relief, it must be shown that enforcement of the order or judgment would be unjust, oppressive or inequitable.' A party is entitled to a plenary hearing on her motion where the evidence shows the existence of a genuine issue of material fact that she is entitled to relief." Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004) (citation omitted) (quoting Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.), certif. denied, 142 N.J. 455 (1995)). Application of subsection (f) is restricted to "'exceptional situations.'" Mancini, supra, 132 N.J. at 336 (quoting Baumann, supra, 95 N.J. at 395).

There is clearly a need here for a plenary hearing to resolve the material factual dispute raised in the parties' opposing papers, namely whether defendant paid his child support obligations, in whole or in part, from November 1993 to September 1997. And, consideration must be given to defendant's claims of laches and equitable estoppel.

"Laches is an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other parents so that it would be inequitable to enforce the right." L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002). We consider the party's knowledge of the legal right, the length of the delay in asserting the right, the reasons for the delay, the other party's reliance on the failure to assert the right, and the other party's change in position, if any. Id. at 39 (citing Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145, 152-53 (1982)). Estoppel focuses on the prejudice to another party caused by the action, rather than the inaction, of the estopped party. Flammia v. Maller, 66 N.J. Super. 440, 448-49 (App. Div. 1961).

Defendant argues that enforcement of the order would be unjust, oppressive or inequitable because (1) as a matter of fact, he does not owe the money, and (2) the passage of time, with the loss of documentation and bank records, will make it difficult or impossible for him to establish his payment of child support directly to plaintiff more than a decade ago.

We are mindful that as a general rule laches and estoppel cannot bar an application for child support. L.V., supra, 347 N.J. Super. at 40-41. However, the circumstances here might provide a basis for an exception to the general rule. Of course, the issue is not before us and we express no view on the subject. This, like the factual determination as to whether payment was made or not, must first be addressed in the trial court.

Under all of the circumstances, we conclude that denial of the motion to vacate the default judgment for child support arrears was a mistaken exercise of discretion. Accordingly, we reverse and remand for a plenary hearing to resolve the factual and legal issues raised by plaintiff's allegation regarding the arrears.

We next address the emancipation issue. The parties submitted conflicting and inconclusive information about whether either of the children were continuing with their studies through online programs or otherwise. The judge ordered both children emancipated, but made the emancipation effective on the date defendant filed his motion, declining defendant's request to establish earlier dates for each child. Defendant argues that the judge failed to place sufficient findings of fact and conclusions of law on the record to support the effective date ordered, contrary to Rule 1:7-4(a). Plaintiff does not cross-appeal from the order of emancipation, and states in her appellate brief that "[t]he trial court properly terminated child support as of the date of the filing of Defendant/Appellant's motion."

We first note that the event of emancipation eliminates the right to receive child support, and thus a declaration of emancipation effective prior to the date of filing a motion does not constitute a retroactive modification of child support in violation of N.J.S.A. 2A:17-56.23a. Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995); Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). Therefore, the judge had the authority, if the facts supported it, to establish the effective date of the emancipation prior to the date of defendant's filing of the motion. Because the factual basis for an earlier termination date was not clearly established by the record, we find no error in his failure to do so. Further, because plaintiff has not cross-appealed from the order of emancipation and because the most to be achieved by a remand would be consideration of a child support obligation of several months for each child, we deem such a remand inappropriate and not in the interest of justice. Accordingly, we affirm the portion of the order making the effective date of emancipation the date of the filing of defendant's motion.

Finally, with respect to the counsel fee award, we remand for reconsideration for two reasons. First, in making the award, the judge failed to make adequate findings of fact or articulate consideration of the applicable factors provided by statute and court rule. Second, the issue of entitlement to a counsel fee award should be reevaluated in light of the ultimate outcome of the remand proceeding.

Affirmed in part. Reversed and remanded in part. Jurisdiction is not retained.


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