October 10, 2008
JOAN R. STERLING, PLAINTIFF-RESPONDENT,
MARK STERLING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-959-98-C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2008
Before Judges Winkelstein and Gilroy.
Defendant Mark Sterling appeals from the December 7, 2007 order of the Family Part. We affirm in part; reverse in part; and remand the matter to the trial court for further proceedings in accordance with this opinion.
Plaintiff Joan R. Sterling and defendant were married on November 24, 1973, and divorced on September 29, 2000. Two children were born of the marriage, a daughter and son, born in June 1980 and February 1984, respectively. In May 2000, having separated prior to the divorce, the parties entered into a Property Settlement Agreement (PSA) resolving issues of alimony, custody, child support and equitable distribution. The PSA was incorporated into the September 29, 2000 Judgment of Divorce.
Under the PSA, the parties agreed that plaintiff would have legal and physical custody of the children, and defendant would have reasonable rights of visitation. Paragraph 1 provided that defendant would pay plaintiff $1,000 a month child support, said amount to be increased after ninety days to $1,500 a month. All payments were to be made through the Monmouth County Probation Department, now the Probation Division (Division). Paragraph 14 provided that plaintiff reserved her right to alimony, support and maintenance.
Paragraph 16 governed equitable distribution of all property acquired during the marriage. Under that paragraph, plaintiff was entitled to receive $681,000 from defendant as her share of equitable distribution. In addition, the amount due plaintiff was reduced to a judgment against defendant, with defendant agreeing to "propose and effectuate a reasonable schedule of payment on said [j]udgment." Lastly, Paragraph 16 provided that "[u]pon emancipation of a child or children, the [defendant] shall continue to pay the previous child support amounts to the [plaintiff] as and for payment on the open [j]udgment."
On May 2, 2003, the trial court entered an order declaring the parties' daughter emancipated as of May 23, 2002, and denying without prejudice defendant's motion to reduce his child support obligation by one-half. On September 24, 2007, defendant filed a motion seeking: 1) an order declaring the parties' son emancipated, effective May 2006, the month of their son's graduation from college; 2) credit against the judgment for his overpayment of child support in the amount of $36,000 for the parties' daughter and $19,500 for the parties' son; 3) an order terminating his probation account because any monies paid against the judgment are not for spousal or child support; 4) an order setting his payments against the judgment at $100 a week; and 5) counsel fees and costs.
On December 7, 2007, the trial court granted defendant's motion: declaring the parties' son emancipated, effective May 17, 2006; granting defendant a credit against the judgment in the amount of $39,940, determining that defendant had overpaid child support for the parties' daughter in the amount of $10,440 and for the parties' son in the amount of $19,500; denying defendant's application to terminate his probation account and directing that defendant continue making payments of $1,500 a month toward the judgment through the Division; and denying defendant's application for counsel fees and costs. In deciding that part of the motion pertaining to defendant's request to terminate his child support account and to reduce his payments against the judgment from $1,500 a month to $100 a week, the trial court reasoned:
He's also asking the [c]court to modify the terms of the property settlement agreement requiring his payment toward the equitable distribution which is to be paid pursuant to the agreement through the Probation [Division].
.... [Plaintiff] argues that the $1[,]500 monthly payment should not be extinguished. Plaintiff relies on the terms of the property settlement agreement which essentially converts the child support payment into payment toward the equitable distribution judgment once the children are emancipated.
Given the unique way in which the property settlement agreement is written here, the parties have agreed to extend support essentially past the day of emancipation. The article read[s] that, upon emancipation of a child or children the defendant shall continue to pay the previous child support amount to the plaintiff as and for a payment of the open judgment.
The monthly $1[,]500 payments toward the balance of that judgment should continue, [I am] satisfied, to be paid through the Probation [Division,] as had been agreed to in the judgment of divorce.
On the same day, the court entered a confirming order that: 1) declared the parties' son emancipated, effective May 17, 2006; and 2) directed that defendant continue making payments at the rate of $1,500 a month "past the date of emancipation in compliance with the [PSA]." However, the order was silent as to the credit defendant was entitled to receive against the judgment for monies he overpaid on child support.
On appeal, defendant argues that the trial court erred in classifying his equitable distribution obligation (the judgment) as a support obligation subject to wage garnishment via the New Jersey Department of Human Services, Child Support Services. Defendant contends that the court misconstrued the PSA because the judgment represents only monies "to be paid to [p]laintiff as and for her share of the parties' real and personal property that the parties acquired during the marriage." Defendant asserts that the court's ruling effectively permits plaintiff to garnish his wages in excess of the maximum amount that a creditor would ordinarily be entitled to garnish a debtor's wages when the debt is for other than a support obligation. See N.J.S.A. 2A:17-56.9 setting the maximum amount for wage execution on a support obligation at the amount permitted under section 303(b) of the federal Consumer Credit Protection Act (15 [U.S.C.A.] § 1673(b)) (presently 55% of a debtor's individual disposable weekly earning), rather than the general 25% ceiling contained in 15 U.S.C.A. § 1673(a)); see also Burstein v. Burstein, 182 N.J. Super. 586, 593-94 (App. Div. 1982).
We agree with the trial court that Paragraph 16 requires defendant to continue to pay plaintiff $1,500 a month against the open judgment. Defendant has not proffered any good reason to alter the terms of the PSA: "Upon emancipation of a child or children, the [defendant] shall continue to pay the previous child support amounts [$1,500] to the [plaintiff] as and for payment on the open [j]udgment." We disagree, however, that Paragraph 16, in and by itself, mandates that defendant continue making those payments through the Division.
Rule 5:7-4 governs monies paid to the Division in matrimonial actions. Subsections (a) and (d) of that rule limit monies paid through the Division to "alimony, maintenance, or child support." The parties cannot impose an obligation on the payor spouse to make payments to the receiving spouse through the Division, except for spousal or child support obligations. The reason is simple. Court services become involved by way of the Division overseeing the payor's account and enforcing the order of payment via motions, wage executions, suspension of driving privileges, etc. R. 5:7-5. If parties were allowed to dictate what obligations may be paid through the Division, the Division's workload would substantially increase for reasons not intended. Therefore, the question presented is whether the judgment was intended as payment for plaintiff's support and maintenance in lieu of alimony, or whether it only represents plaintiff's share of equitable distribution of the marital property. Cashin v. Cashin, 186 N.J. Super. 183, 188 (Ch. Div. 1982). Because that determination was not made in the trial court, we are constrained to remand for a plenary hearing.
We remand this matter to the trial court for a plenary hearing to determine the parties' intentions pertaining to whether the monies evidenced by the judgment in Paragraph 16 were intended as payment toward plaintiff's support and maintenance, in lieu of alimony, and not only as plaintiff's share of equitable distribution. "Support is not necessarily linked with the manner of payment or to whom it is tendered, but rather with the necessary nature of the item or services being provided." Id. at 187. On remand, if the trial court determines that the nature of the payment is spousal support, the court may direct that the payment be made through the Division. We also direct that the trial court enter an order crediting defendant for the monies he previously overpaid on his child support obligations in the amount of $29,940, as orally decided on December 7, 2007.
Affirmed in part; reversed in part; and remanded to the trial court for further proceedings consistent with this opinion.
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