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Carter v. Carter

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 24, 2009

GERALDINE TAYLOR CARTER, PLAINTIFF-RESPONDENT,
v.
BRUCE CARTER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-2321-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2009

Before Judges Messano and LeWinn.

In this post-judgment matrimonial matter, defendant Bruce Carter appeals from the June 9, 2008 order of the Family Part setting his child support arrears for the period between 2003 and 2006 at $6,298.80; he also appeals from the provision in the October 6, 2008 order of the Family Part requiring him to pay "the entire bank charge of $90.00 for . . . check retrieval and printing . . . ." For the reasons that follow, we affirm the order setting defendant's child support arrears and reverse the order with respect to allocation of the cost of the check retrieval fee.

The parties have been engaged in post-judgment motions to settle the amount of defendant's child support arrears since August 2007. On August 20, 2007, a Family Part judge entered an order setting defendant's child support arrears at $168 as of October 6, 2006.

On October 22, 2007, that judge entered an order granting the request of plaintiff Geraldine Carter to reconsider the August 20, 2007 order setting arrears and to recalculate arrears "considering [p]laintiff's input." The order further provided that within thirty days, defendant was to provide proof of all checks he wrote for child support payments directly to plaintiff. That order also stated that "[h]alf the cost to produce the records will be charged to [p]laintiff."

On June 9, 2008, a different Family Part judge entered an order modifying defendant's child support arrears to the amount of $6,298.80 for the time period between 2003 and 2006. The order noted that this modification was "based on [d]efendant's submission of proof of child support payments for that same period[,]" and appended the judge's "spreadsheet which outlined the amount of child support owed, the amount paid, and the respective arrears, for each year in question." Based upon the judge's "thorough review of [d]efendant's submission," the following "new arrears" were determined: $1348 for 2003; $1562 for 2004; $1161 for 2005; and $2,270.80 for 2006, totaling $6,298.80.

On October 6, 2008, the first Family Part judge entered an order denying defendant's motion to recalculate the amount of child support arrears set forth in the June 9, 2008 order; the judge further ordered defendant to "pay the entire bank charge of $90.00 for the check retrieval . . . ." In her statement of reasons, the judge noted that the "matter of arrears . . . was settled [in the order of] June 9, 2008 . . . . If [d]efendant disagrees, his remedy is to appeal to the Appellate Division, not to another judge sitting as a trial judge." With respect to the check retrieval fee, the judge stated: "Defendant is solely responsible for the charges associated with his request for the retrieval and printing of checks from his bank account."

On appeal, defendant argues:

Claimant would like arrears to be recalculated based on submission of proof of child support payments, [c]redit for arrears already paid, and credit for half the costs of producing records as stated in previous order.

Defendant presents no argument as to how the second Family Part judge erred in the calculations supporting the June 9, 2008 order. He presents no countervailing calculations to demonstrate any mistake in the spreadsheets appended to that order. Therefore, we are constrained to affirm the June 9, 2008 order setting defendant's child support arrears at $6,298.80 for the period between 2003 and 2006.

In his brief and at oral argument, defendant raised an issue regarding a federal tax refund check in the amount of $3030 which, he claims, was seized by New Jersey Child Support Services to apply towards arrears. However, defendant has provided no records from either New Jersey Child Support Services or the Bergen County Probation Department, reflecting the receipt of such a check. Plaintiff did not address this issue either in her brief or at oral argument. Defendant is free to seek an audit of his child support account by the Probation Department to resolve this issue.

Regarding the check retrieval fee, we note a clear discrepancy between the first Family Part judge's October 22, 2007 order, wherein she ordered the parties to split that fee fifty-fifty, and that same judge's order of October 6, 2008, in which she ordered defendant to pay the entire bank fee. It does not appear from the record that either party brought this discrepancy to the judge's attention upon receipt of the latter order.

The prior order states that it was entered "for the reasons stated on the record on October 19, 2007[,]" but no transcript of proceedings on that date has been furnished; therefore, we are at a loss to ascertain the judge's reason for ordering the parties to divide that fee. The only reason appended to the October 6, 2008 order regarding the bank fee is that defendant shall be "solely responsible" for it. Under the circumstances, we conclude that defendant is entitled to rely upon the provision in the earlier order, obligating him to pay only half the check retrieval fee. The latter order provides no explanation for the modification of that provision.

Rule 1:7-4 requires a court "by an opinion or memorandum decision, either written or oral, [to] find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right . . . ." The "[f]ailure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.' Naked conclusions do not satisfy the purpose of R. 1:7-4." Curtis v. Finneran 83 N.J. 563, 569-70 (1980) (citation omitted). In the absence of a clear statement of reasons for the bank fee retrieval provision in the order of October 6, 2008, we are constrained to reverse that provision and reinstate the previous order of October 22, 2007.

Therefore, we affirm the order of June 9, 2008; we reverse paragraph five of the October 6, 2008 order requiring defendant to pay the entire check retrieval fee, and remand for entry of an order in conformity with this opinion.

20091224

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