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Roman v. Lacayo


January 20, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1129-02.

Per curiam.


Argued December 9, 2008

Before Judges Winkelstein, Gilroy and Chambers.

Defendant Allan Lacayo, Sr. appeals from the order of January 25, 2008, denying his motion to vacate the alimony and arrears awarded to his former wife, plaintiff Lorraine Roman.

We reverse and remand.

The parties were married on April 6, 1996, and had two children. In 1996, defendant, who was thirty-one years older than plaintiff, began receiving Social Security Disability payments, and when he turned sixty-five years old later that year, in place of those payments, he began receiving Social Security Retirement benefits in the sum of $1,000 per month. In September 2001, defendant was arrested for sexually assaulting plaintiff's daughter from a previous marriage. In November 2002, he was convicted of those charges and sentenced to nine years in prison. Plaintiff obtained a divorce from him on July 1, 2002.

On September 6, 2002, the trial court entered an order providing that defendant's Social Security checks be paid to plaintiff as alimony payments "so long as he is incarcerated." The order further provided that "[b]oth the plaintiff and the defendant may revisit the issue of alimony upon defendant's release from jail." Another order was entered on April 28, 2003, requiring that "defendant's social security check, in the amount of $1,000 per month, shall be paid to the Plaintiff, as alimony effective June 27, 2002, so long as defendant is incarcerated." That order also stated "[t]hat said support Order will continue in the amount of $1,000 per month from defendant's social security benefits until further order of the Court." As a result, based on these orders, defendant was obligated to provide plaintiff with $1,000 a month from his Social Security checks as alimony payments.

Plaintiff did not receive the payments because defendant's Social Security checks were suspended by the federal government due to his incarceration. See 42 U.S.C.A. § 402(x)(1)(A)(i) (providing that social security benefits are forfeited during periods of incarceration attributable to a conviction). His Social Security payments stopped in February 2003, due to his incarceration. However, under the statute they should have stopped in December 2002, and as a result, defendant received two overpayments.*fn1

Defendant was released from prison on July 1, 2007, and his Social Security payments resumed in August 2007. The initial payment was for $928 but then the benefits increased to $1,163 beginning September 2007. The Social Security Administration is deducting $10 from each of his monthly payments as reimbursement for the two overpayments that were made while defendant was incarcerated.

After defendant's release from prison, plaintiff brought a motion seeking alimony arrears. On September 24, 2007, the trial court directed the Camden County Probation Department to provide an accounting of defendant's arrears, concluding that defendant was obligated to make alimony payments of $1,000 per month under the order of September 6, 2002, although an actual copy of the order had not been located at that time. Defendant was directed by the trial court to pay the arrears at the rate of $200 per month under a Social Security Wage garnishment. The order also terminated plaintiff's right to alimony retroactive to June 6, 2007, the date of her remarriage.

Defendant moved to vacate his responsibility for arrears and the orders of September 6, 2002, and September 24, 2007.

His motions were denied. At the time of the application, copies of the earlier orders imposing defendant's alimony obligation still had not been located. In December 2007, after the September 6, 2002 and April 28, 2003 orders were located, defendant made a motion for reconsideration, arguing that his obligation to pay alimony turned on his receipt of Social Security payments, and since he did not receive the benefits, he had no obligation to pay the alimony. By this time, it appears that defendant's alimony arrears had been calculated at $60,000. The trial court denied the application, treating it as an application to set aside the September 6, 2002 and April 28, 2003 orders under Rule 4:50-1(a) for mistake, and found it to be untimely under Rule 4:50-2. Defendant appealed.

Our review is de novo. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manapalan, 140 N.J. 366, 378 (1995).

The awarding of arrears for the period in which defendant was incarcerated and not entitled to Social Security payments was in error. Both alimony orders specifically tied defendant's alimony obligation to his Social Security payments. The alimony order of September 6, 2002, merely required defendant to pay his Social Security check to plaintiff as alimony. The alimony order of April 28, 2003, provided that $1,000 from defendant's Social Security check be paid to plaintiff as alimony. Neither order imposed any obligation upon defendant to pay plaintiff alimony independent of his Social Security payments. Given defendant's financial circumstances and his then pending imprisonment, the Social Security checks were his only plausible source of income. When defendant's right to the Social Security checks was forfeited due to his imprisonment, plaintiff also lost this source of funds for alimony. Accordingly, plaintiff is not entitled to arrears in alimony for the period in which defendant's Social Security payments were forfeited due to his incarceration, which is the period from December 2002*fn2 until July 2007.

Nevertheless from June 27, 2002, (the date that defendant's alimony obligation went into effect under the September 6, 2002, order) until November 2002, (when he was incarcerated and his Social Security was forfeited), defendant presumably continued to receive his Social Security payments. Under the terms of the September 6, 2002 order, defendant was obligated to make the payments to plaintiff during that time. As a result, arrears for this time period are warranted.

Defendant argues he is entitled to relief from the order under Rule 4:50-1(f). Under that portion of the rule, relief from a judgment or order may be obtained at any time where the "circumstances are exceptional and . . . enforcement of the order or judgment would be unjust, oppressive or inequitable." Pressler, Current N.J. Court Rules, comment 5.6.1 on R. 4:50-1 (2009). In light of our determination that defendant is responsible for the alimony payments only during the six month span (June through November, 2002) when he did receive Social Security payments, enforcement of the order is not unjust, oppressive or inequitable.

We reverse and remand in order that the trial court may recalculate the arrears in light of this decision and provide defendant with credits for any payments he has already made.

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