October 22, 2009
DONNA DEQUINA, PLAINTIFF-RESPONDENT,
GIL R. RAMOS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-215-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2009
Before Judges Messano and Alvarez.
Pro se defendant Gil R. Ramos appeals a Family Part order dated September 19, 2008, denying him reconsideration as to certain credits and debits previously applied to his child support account through the Hudson County Probation Department (HCPD). Plaintiff Donna Dequina also appears pro se. For the reasons that follow, we vacate and remand.
Defendant was denied reconsideration of a July 25, 2008, order which states:
HCPD shall hold the amount of $74,617 as a credit for Mr. Ramos until 2014.
Ms. Dequina owes Mr. Ramos $8118 in 2014 if the [$]55000 ( interest) judgment is not enacted.
Today Mr. Ramos owes Ms. Dequina the amount of $269 as an offset of the $6390 he owes her for school & med. her bills for [the oldest child] were $6190 in college expenses.
The September 19, 2008 reconsideration order granted defendant the right to "review all tuition, room, board [and] financial aid records," from the parties' oldest child's college education. The order also memorialized the parties' acknowledgment of $51,175 in loans incurred by their oldest child for her college education.
The September 19 order also required the parties to pay for the college expenses of their youngest children as provided in their December 6, 1999 Property Settlement Agreement (PSA), that made defendant responsible for sixty-five percent of the expenses and plaintiff for thirty-five percent. Defendant's sixty-five percent included college loans the children might obtain in furtherance of their education. The middle child's personal expenses, such as transportation and medical costs, were allocated to defendant, with whom she currently resides.
The costs of living of the youngest child, who resides with plaintiff, were made her sole responsibility. Upon the emancipation of the middle child, support for the youngest child is to be recalculated based on the parties' income at that time. The order contained further provisions not relevant to this appeal.
Some background is necessary before analysis of defendant's contentions. Part 1 of Article I of the PSA, entitled "Support and Maintenance of Husband and Wife," is captioned "Restitution to Wife." That section provides:
A. Husband shall pay to wife for her support of husband through his many years of schooling the one time, non-taxable lump sum of fifty-thousand ($50,000) Dollars. This amount may not be changed for any reason and shall be entered as a judgment against husband. It shall also be non-dischargeable in bankruptcy by the husband.
B. The wife worked at a menial job for a long period of time to be in a position to secure her green card. By doing so, she enabled the husband to secure his green card. The husband shall pay the wife the one time, non-taxable lump sum of five thousand ($5,000.00) dollars. This amount may not be changed for any reason and shall be entered as a judgment against husband.
C. The total amount of $55,000.00 shall be entered as a judgment against husband with judgment rate interest running from June 1, 1998. The judgment shall be discharged with a warrant to satisfy upon husband's satisfaction of all obligations per Article II, paragraph 3, or upon full payment.
In a somewhat contradictory, not to mention confusing, fashion, the PSA states in Article II, "Custody, Support and Maintenance of Children," Section 3, "College/Vocational School":
The consideration for husband paying 65% of the total expenses for [the two younger children] is wife waiving her restitution. The husband and wife had agreed that wife was entitled to a $55,000 non-taxable immediate payment to her in 1998. She is waiving this and cannot resurrect this unless husband does not bear his obligation for [the two younger children]. If he does not, wife shall have a judgment against husband for $55,000 plus interest from June, 1998. No credit against the amount shall be given for payments made by husband for school.
It should be noted that defendant returned to the Philippines for an unspecified period of time and met none of his child support obligations as outlined in the PSA.
In any event, judgment was entered against defendant for $55,000 on June 30, 2003. The order characterizes the payment as equitable distribution. That same order entered a judgment for $35,698 and $2287.22 for child support arrears and medical expenses, respectively, and $47,500 for the oldest child's college expenses. Interest was not calculated on the $55,000, however, until an order dated March 16, 2006, and the interest was fixed at $19,617. For ease of reference, the $55,000 lump sum will be referred to as the "equitable distribution" payment.
Defendant paid $77,498 in 2007 through the HCPD. We cannot glean from this record whether this sum was intended to satisfy the equitable distribution plus interest, which would have totaled $74,617, as of March 16, 2006. If the payment was intended to represent a portion of the $83,485.22 in arrears on child support, medical reimbursal, and contributions on account of the oldest child's college education as ordered on June 30, 2003, the amount fell short by a few thousand dollars. Additionally, we cannot determine if this contribution for the oldest child's college expenses included the sixty-five percent of her college loans for which he was made responsible in the PSA.
On January 3, 2008, the court ordered the HCPD to conduct an audit after meeting with each party individually, to attempt to determine the correct amount of arrears "with the base number from the April 2006 court order." We do not have a copy of that order, but it is referred to by the parties in their briefs.
On March 13, 2008, for reasons we cannot fathom from this record, the HCPD closed defendant's account as a result of their inclusion of an incorrect payoff balance during an audit. A second audit was conducted, and as of May 23, 2008, it was determined that defendant owed only an additional $66,499.02. The origin of this figure is a mystery.
To add to the confusion, the July 25, 2008 order allowed a credit of $8118 to defendant on account of child support to be held in abeyance until 2014, despite the fact that defendant may still owe plaintiff one of the following: 1) the $55,000 contemplated by the PSA in equitable distribution, with accrued interest; 2) sixty-five percent of the oldest child's college expenses of $35,698; 3) sixty-five percent of the oldest child's college loans; and 4) child support arrears of $37,985. The problem is, simply stated, that we cannot determine with any precision from the materials supplied by either party in their appendices, what these numbers represent, including the $8118.
Defendant's contention on appeal is:
The facts of the case show that Defendant had in fact overpaid Plaintiff in child support payments. A decision to set aside a judgment in one hearing and then to re-impose it whimsically to justify the non-closure of Defendant's child support case is a grave abuse of judicial discretion committed by the lower court. The child support case of Defendant should remain closed and the Plaintiff should be ordered to reimburse Defendant with the refund to be properly calculated by the HCPD auditors.
We will therefore assume that defendant appeals only the following paragraph in the September 19, 2008 order:
Motion for reconsideration presented by Gil Ramos regarding the imposition of $74,617 denied for the reasons placed upon the record (order of 7/25/08 being the subject of the reconsideration.) No refund of $8118 to be given now - all amounts will wait until 2014 as discussed within the 7/25/08 order.
Plaintiff makes the following points in her brief:
1. THE FAMILY COURT CORRECTLY RULED THAT THE $55,000 JUDGMENT PLUS INTEREST OF $19,617 AGAINST APPELLANT IS STILL OUTSTANDING AND THERE IS NO BASIS TO VOID IT, AS APPELLANT DEMANDS. APPELLANT'S CLAIM THAT THE $55,000 PLUS INTEREST WAS SET ASIDE AND THEN REIMPOSED IS NOT ONLY ERRONEOUS, BUT FRIVOLOUS.
2. THE FAMILY COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT ORDERED THAT THE "REFUND" OF $8,118 BE HELD IN ABEYANCE; APPELLANT'S DEMAND FOR AN IMMEDIATE REFUND OF $8,118 SHOULD BE DENIED.
3. APPELLANT FAILED TO COMPLY WITH THE TERMS OF THE PSA; THIS COURT SHOULD ORDER HIM TO IMMEDIATELY PAY THE $55,000 PLUS INTEREST OF $19,617 TO THE RESPONDENT.
4. THE FAMILY COURT DENIED RESPONDENT DUE PROCESS WHEN IT TOOK FROM HER THE $55,000 PLUS INTEREST OF $19,617 WITHOUT NOTICE AND OPPORTUNITY TO BE HEARD.
5. APPELLANT WAS NOT DENIED DUE PROCESS; HE HAD EVERY OPPORTUNITY TO PARTICIPATE IN THE SECOND AUDIT, AND IN FACT DID SO.
6. SINCE APPELLANT HAS A BALANCE IN HIS PROBATION ACCOUNT, THIS COURT SHOULD ORDER THE HUDSON COUNTY PROBATION DEPARTMENT TO REFLECT THE BALANCE OF $66,499 IN ACTIVE ARREARS. THEREFORE APPELLANT'S ACCOUNT MUST REMAIN OPEN UNTIL THIS BALANCE IS PAID IN FULL WITHIN 30 DAYS.
Since no cross-appeal was filed by plaintiff, several of the points she raises cannot be addressed in this opinion.
We accord particular deference to findings of the Family Part in light of its "special . . . expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). While we would like to accord full deference to the finding of the Family Part in this instance, we must have a basic understanding of the record before we can address or fairly assess defendant's contention on appeal.
The HCPD should not have credited defendant with the $55,000 equitable distribution and interest, if that is what occurred, because the county probation departments are only authorized to collect spousal or child support. R. 5:7-4(b). If that figure was included in the audit which resulted in the $8118 credit to defendant held in abeyance to 2014, it should not have been issued to him as a credit. As set forth above, we are not certain, however, if the oldest child's college expenses or loans or child support arrears were included in the audit.
Furthermore, the motion judge did not cite to any authority for holding the $8118 overpayment, if it was an overpayment, in abeyance pending the termination in the year 2014 of defendant's support obligation for the parties' youngest child. But again, we are not certain that this figure actually represents a credit. The equitable distribution judgment and interest, although properly entered as a judgment against defendant in the matrimonial court, should not have been run through the HCPD account.
Accordingly, we direct that the September 19, 2008 order as to an $8118 credit be vacated. Upon remand, the court shall delete from the HCPD account, if it was included, the entire equitable distribution figure and interest thereon. Only support arrears, college education expenses, and the like are to be included. Only by the inclusion of support amounts can arrears or credits be calculated. If after subtracting improperly included amounts, but adding support arrears, college contributions and medical expenses, plaintiff was overpaid, that amount must be reimbursed to defendant rather than held in abeyance until 2014.
The order as to a credit of $8118 is hereby vacated and the matter remanded for proceedings in accordance with this decision.
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