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Francine Monique White v. Richard St. Paul


January 4, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-1497-08.

Per curiam.


Argued October 27, 2010 - Decided Before Judges Lihotz and J. N.Harris.

Plaintiff Francine Monique White appeals from certain provisions of two Family Part orders that address rights and obligations regarding the parties' young child. Plaintiff asserts the motion judge erred by: 1) directing reunification therapy between defendant Richard St. Paul and the child; 2) granting defendant additional time to provide life insurance to secure his child support obligations; 3) modifying child support after defendant provided information regarding another child to whom he provides support; 4) allowing a portion of defendant's child support obligation to be paid directly rather than through a wage order; 5) requiring plaintiff to provide medical authorization forms to defendant, which allowed him access to the child's medical care information; 6) denying a portion of plaintiff's request for counsel fees; and 7) declining to "conform" its orders to include statements made during the hearings.

We have considered each of the arguments presented by plaintiff in light of the record and applicable law. We agree defendant's entire child support obligation should be paid by wage execution through Probation Services if the garnishment would not exceed the federal limitations imposed by 15 U.S.C.A. § 1673(b)(2)(A) and remand for further review of this issue. In all other respects, we affirm.

The parties' child was born on February 20, 2008. To aid our review of plaintiff's motion, we briefly recite the necessary facts and litigation history involving these never-married parents.

On May 7, 2008, plaintiff filed a complaint seeking sole custody and an award of child support.*fn1 Defendant neither appeared at the hearing before the child support hearing officer (CSHO) nor attended two scheduled paternity tests. On September 25, 2008, a CSHO entered a finding of paternity by default order and the court accepted the hearing officer's recommendation to fix child support at $277 per week with a $23 per week payment toward the $5540 accumulated arrearages. Child support was ordered to be paid by wage execution through Probation Services.

Defendant initially moved to set aside the September 25, 2008 order. He was afforded the opportunity of genetic testing but again did not appear. Ultimately, defendant admitted paternity but continued to seek modification of the amount of child support. Plaintiff filed motions for enforcement.

Plaintiff also filed motions for sole custody of the child, payment of her $30,313.63 in unpaid pre- and post-natal medical expenses, a life insurance policy on defendant's life naming the child as beneficiary and payment of her counsel fees and costs. Various orders were entered that awarded plaintiff sole legal and physical custody of the child, ordered defendant to pay sixty percent of outstanding medical expenses and to obtain and provide proof of $300,000 in life insurance coverage by a certain date.*fn2

When defendant failed to comply as ordered, plaintiff sought enforcement of litigant's rights. On August 21, 2009, the court reviewed the parties' cross-motions. Defendant's requests to modify custody and the amount of the life insurance obligation were denied. Defendant's application for parenting time with the not yet two-year old was denied without prejudice, pending his successful participation of unification therapy with the child and the court's review of a parenting report. Defendant was again ordered to produce proof of the previously ordered life insurance found necessary to secure his support obligation. The motion judge reserved decision on his request to modify the amount of his child support obligation, until defendant supplied documentation of his earnings. Plaintiff was ordered to supply "any necessary authorizations" to allow defendant to "pay his share" of the outstanding medical bills.

The parties returned to court and an order was entered on September 17, 2009. At that time, defendant had supplied documentation to verify support he paid to one of his four other children. Specifically, defendant provided the court with pay stubs, which reflected a wage execution for support of this child. Defendant did not submit a certification reciting "all claimed dependants," as previously ordered. Nevertheless, the court was satisfied with the proofs and recalculated the child support obligation accounting for the prior support order, and reduced payment for the benefit of the parties' child to $267 per week plus $23 toward arrearages. The order also provided defendant would pay $50 directly, with the remaining $240 subject to wage garnishment.

Further, defendant was ordered to supply proof of the life insurance policy previously ordered to be put in place. Plaintiff's enforcement motion for payment of defendant's share of outstanding medical expenses was granted, subject to plaintiff's provision of authorizations allowing defendant to contact the health care providers to make payment arrangements. Plaintiff's request to "conform" past orders to include "pronouncements made during motion hearings" was denied. Finally, the motion judge awarded plaintiff counsel fees and costs for enforcement of the medical costs.

Plaintiff appealed, challenging provisions of the August 21 and September 17, 2009 orders. On March 26, 2010, we ordered defendant's brief suppressed.

In our review, we recognize the "family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth and Family Servs. v. M.C., 201 N.J. 328, 342-343 (2010). We are obliged to accord deference to the trial judge's factual findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Reversal is required only in those circumstances where the trial court's findings were "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted).

Plaintiff first claims the motion judge erred in ordering reunification therapy and a parenting report without first making a determination that these would be in the child's best interest. The contention is void of merit.

The motion judge explicitly made these findings:

In [] reference to the modification of custody, I'm going to deny the application. I do not find any substantial change [of] circumstance[s] [that] would warrant[] modify[ing] the existing order[.] However, in the best interest of the child, the child is caught in the middle of two adults who clearly are not getting along. But that child certainly do[es] have a right to know who her parents are. And in her best interest, I find that she should be given the opportunity to know [] both of her parents[.]"

Defendant's motion for joint legal custody and parenting time expressed his sincere desire to develop a relationship with the child. Knowing defendant had not maintained contact with the nineteen-month old child, the motion judge did not plunge into parenting time, but cautiously implemented a process for defendant to make the child's acquaintance. We find no error or abuse of discretion in the motion judge's thoughtful methodology, assuring the child's interest in knowing her father was achieved following a risk assessment, parenting report and unification therapy.

Plaintiff next contends the court abused its discretion by failing to enforce defendant's life insurance obligation, instead allowing additional time for its production. A court of equity exercises considerable discretion in fashioning remedies, Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993), including the manner of enforcing its orders or punishing non-compliance. See Gonzalez v. Safe & Sound Sec. Corp., 368 N.J. Super. 203, 209 (App. Div. 2004) (explaining that any decision on sanctioning a party for disobeying a court order rests within the court's discretion), rev'd on other grounds, 185 N.J. 100 (2005); see also Feldman v. Feldman, 378 N.J. Super. 83, 100 (App. Div. 2005) (acknowledging, without condemnation, the court's reluctance to order incarceration for lack of compliance with orders). Plaintiff's argument is rejected as no misapplication of discretion is manifest.

Plaintiff next objects to the court's modification of the initial child support order, entered after defendant's default, to consider his a prior support obligation for another child, because the proof of the prior order was insufficient. We are not persuaded.

Child support obligations may be modified at any time on the grounds of changed circumstances. Innes v. Innes, 117 N.J. 496, 503-04 (1990); Lepis v. Lepis, 83 N.J. 139, 146 (1980). Contrary to plaintiff's contention that the "court erred and abused it's [sic] discretion in finding that [d]efendant failed to provide proof of payment of child support to other dependents[,]" the court viewed defendant's pay stubs, finding they demonstrated his wages were garnished pursuant to a New York support order for the benefit of another child. Since that order had not been considered in the original support calculation, it constituted a change in circumstances requiring review and modification.*fn3 We conclude there is no basis to interfere with the court's determination.

Plaintiff raises a challenge to the order's provision, which allows $50 of the weekly support obligation to be paid directly to her, rather than requiring the entirety to be satisfied through garnishment. We agree that this provision must be re-examined.

Child support obligations, including accrued arrearages, must be enforced through income withholding unless the parties agree in writing to an alternative payment arrangement, or either party demonstrates good cause to establish an alternative arrangement. N.J.S.A. 2A:17-56.8; R. 5:7-5(b); see also Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290, 308-09 (App. Div. 2007) (holding, pursuant to statute and court rule the trial court erred in declining to order child support paid through wage execution). One limit on the amount of a garnishment is found in N.J.S.A. 2A:17-56.9, which provides that the total sum withheld must not exceed the maximum allowed under federal Consumer Credit Protection Act, 15 U.S.C.A. § 1673(b).

It remains unclear how this anomaly occurred. The September 25, 2008 order was the first to require support be paid by wage garnishment. On June 4, 2009, when the court was advised that all but $50 was garnished, it ordered defendant to directly pay $50 per week. Nothing in the record shows this was requested by defendant or resulted from the parties' agreement. The provision now challenged by plaintiff merely continued the prior provisions.

The motion judge determined defendant's annual income was $117,000. The record does not contain the income documentation defendant submitted to the court. Although it appears unlikely, we cannot verify that the $290 per week order, when combined with the $131 New York support order, exceed the fifty percent of disposable income limit imposed by 15 U.S.C.A. § 1673(b)(2)(A). On remand the Family Part must determine whether the implemented garnishment exceeds the federal limits. If so, the order shall not be altered. If the garnishment complies with the federal statute, the entirety of defendant's support obligation, including the arrearage payment, shall be paid by wage execution implemented by Probation Services.

Plaintiff next contends the motion judge infringed upon her privacy by ordering her to provide medical authorizations to defendant, allowing him to pay the child's medical expenses accumulating prior to enrollment in a medical insurance plan. The purpose of the authorization was merely to allow defendant to contact the providers directly to negotiate payment arrangements, not to review plaintiff's medical history as she asserts.

Plaintiff failed to raise this issue before the motion judge. Accordingly, we decline to consider the argument, particularly in light of the disconnect between the expressed purpose of the limited authorization and her claim of unfettered disclosure of her personal medical information. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (stating that appellate courts generally will not consider issues raised for the first time on appeal unless they are jurisdictional or of great public importance). Moreover, during the September 17, 2009 hearing, plaintiff expressed her preference that defendant make payments directly to the health care providers after receipt of appropriate authorization, and had given copies of the bills showing treatment to defendant. Cf. Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996) (explaining that doctrine of invited error precludes litigant from urging the court to follow course of action and then challenge it as error).

Regarding the award of counsel fees, plaintiff asserts the court excluded the fees incurred to enforce the order requiring payment of the medical expenses.*fn4 We are not persuaded.

It is clear from the record that plaintiff had not provided the authorizations to allow defendant to arrange for payment. In evaluating plaintiff's request for fees, the court explained the amount of the outstanding medical reimbursement was an exorbitant amount of money and I find that there needs to be some authorizations, as I've already ruled on which needs to be provided to the [d]efendant so that he can show the Court he's making steps to try to make arrangements for payment of those medical bills.

The court also contrasted these circumstances with what was found to be defendant's persistent and unjustified refusal to comply with its orders to produce proof of life insurance, necessitating plaintiff's enforcement motion and warranting a fee award. We discern no abuse of the court's reasoned discretion.

Equally unavailing are plaintiff's contentions that the court ignored its obligation "to conform any of it's [sic] written orders to it's [sic] prior oral decisions." We recite the specific examples plaintiff raises.

First, she suggests the January 15, 2009 order failed to record the court's oral finding that the amount of ordered support was not "outrageous." Plaintiff additionally takes exception to the order's provision limiting payment to counsel's efforts regarding the establishment of paternity. She alleges restricting her counsel fee award solely to paternity issues was not mentioned in the court's oral decision.

Second, plaintiff identifies alleged flaws in the May 1, 2009 order, because it failed to explicitly state defendant's obligation to pay the child's future uninsured medical expenses would mirror the same sixty percent applied to the bills presented.

Third, plaintiff contends the June 4, 2009 order applied the requirements of strict probation solely to the direct payment to plaintiff, not the entire weekly support obligation. Also, the order stated a warrant "may be issued" for defendant's arrest if he missed two child support payments, yet the court's oral decision emphasized that a warrant "shall issue" in such event. Plaintiff believes the order did not properly reflect the expanse of enforcement issues for which counsel fees were awarded, nor did it include the court's statement that defendant be required to produce proof of life insurance coverage rather than merely proof of "attempts" to obtain the coverage.

In the event of a conflict between a court's oral decision and a written order memorializing it, the oral decision controls. Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (App. Div. 2002). Moreover, the court may correct any clerical error in the written decision on the application of either party. R. 1:13-1.

We reject each of plaintiff's trivial complaints. Succinctly, we find no error or misapplication of discretion.

Plaintiff's claim that the January 15, 2009 order should have included the court's commentary that the ordered amount of support was not "outrageous" is without merit. The statement was not part of the motion judge's oral opinion and need not be included in the court's order. Plaintiff's assertion of omission in the May 1, 2009 order was cured by the September 17, 2009 order and whether the earlier order was inexact is now moot. Plaintiff has made no claim for expenses not otherwise encompassed by the latter order's provisions, which require defendant to "continue to be responsible for 60% of all medical bills[,] which existed prior to medical insurance being obtained for the child." No basis for reversal is presented. As to the alleged defects of the June 4, 2009 order, we need not intrude on the court's exercised discretion in enforcing its order, particularly with regard to incarceration as a sanction for non- compliance. Feldman, supra, 378 N.J. Super. at 100. The challenged wording fairly reflects the court's ruling.

To the extent plaintiff has raised any additional arguments not specifically addressed, we find they lacked sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Accordingly, we remand for further review of paragraph 3b of the September 17, 2009 order for the Family Part to review the wage garnishment's compliance with federal law and to take permitted steps to provide the child support order will be paid through a wage order monitored by Probation Services. In all other respects, the Family Part orders entered on August 21 and September 17, 2009 are affirmed.

Affirmed in part and remanded for further review in part.

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