March 16, 2011
ISABELLA M. GREEN, PLAINTIFF-RESPONDENT,
GEORGE GREEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-10328-91.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Yannotti, Espinosa and Skillman.
The parties each waived oral argument in their motion and cross-motion in this post-judgment matrimonial matter. Nevertheless, the court heard oral argument and took testimony on the return date without notice to defendant. Defendant appeals from the order entered and, for the reasons that follow, we reverse.
Plaintiff and defendant were married on December 6, 1954.
Plaintiff filed a complaint for divorce on December 11, 1990.
Initial efforts to serve the summons and complaint were unsuccessful. Service was eventually accomplished in February 1991 by regular and certified mail pursuant to an order entered after an appropriate motion.
On April 3, 1991, an order was entered that required defendant to pay support to plaintiff. Defendant contends he was not in court that day and in fact "never appeared in any court in the State of New Jersey, at any time, on the matter of or during the course of the divorce action." However, the order states that defendant appeared in court on March 22, 1991, and gave testimony.
A default judgment was entered against defendant on May 23, 1991, for his failure to answer the divorce complaint. Plaintiff filed a notice for equitable distribution on June 1, 1991, and served defendant by Federal Express. The final judgment of divorce (JOD), entered on June 24, 1991, noted defendant's failure to appear despite being served and provided, in pertinent part:
4. Plaintiff shall be entitled to receive forty-five percent (45%) of the gross pension received by Defendant by virtue of his retirement with the United States Navy. A Qualified Domestic Relations Order shall be drafted by counsel for Plaintiff.
5. Plaintiff shall be entitled to receive fifty percent (50%) of the gross pension enjoyed by Defendant by virtue of his retirement from the United States Postal Service. A Qualified Domestic Relations Order shall be drafted by counsel for Plaintiff.
A Qualified Domestic Relations Order (QDRO) that
implemented these provisions was entered that day. The QDRO
Payment Beginning Date (for Alternate Payee) shall be [the] earliest date subsequent to the qualification of this Domestic Relations Order when it is administratively possible for the Department of the Navy to begin distribution to the alternate payee.
Approximately one year later, the QDRO was amended to reflect an agreement between the parties that was memorialized in a consent order dated May 20, 1992. The consent order provided for the termination, as of May 4, 1992, of defendant's responsibilities to maintain a life insurance policy for plaintiff's benefit and to pay support and/or alimony to her. Plaintiff also waived her right to any arrearages accrued under the QDRO and the warrant for defendant's arrest due to his support arrearages was vacated. The consent order also reflected the parties' agreement that Plaintiff shall receive forty-seven and one-half (47 1/2) of Defendant's gross monthly pension from the UNITED STATES NAVY and UNITED STATES POSTAL SERVICE. This sum received by the Plaintiff shall be gross from Defendant's pension and Defendant shall not be responsible for payment of any taxes for Plaintiff's portion of his pensions.
The QDRO was amended again on February 22, 1993, and clarified
the modifications that were the subject of the earlier amendment.
In 2009, plaintiff applied to the Defense Finance and Accounting Service (DFAS) for a portion of defendant's Navy retirement pay pursuant to the JOD and QDRO. Defendant opposed the application. The DFAS notified defendant that his military retired pay was in "non-pay status" and, therefore, no funds were available for plaintiff.
Plaintiff filed a motion to enforce payment of the monies due to her from defendant's Navy pension. Defendant opposed the motion and filed a cross-motion seeking an order preventing plaintiff from requesting any further form of relief "on any future claim for payment to plaintiff from defendant's military retired pay[.]" Both plaintiff and defendant waived oral argument and consented to disposition of the motions on the papers.
On the return date of the motion, however, plaintiff appeared in court with the parties' daughter. The transcript provided in this appeal does not reflect any inquiry by the court as to the fact that oral argument had been waived and that defendant was not present. Instead, the court proceeded to have plaintiff sworn, questioned plaintiff under oath, allowed plaintiff to address the court regarding facts in issue, and received unsworn comments from plaintiff's daughter. After receiving this information, the court entered an order on March 16, 2010, that increased the amount plaintiff received from defendant's U.S. Postal Service pension from $749.37 per month to $1,312.37. Additionally, the court ordered defendant to pay the $563 increase directly to plaintiff until the Office of Personnel Management implemented the order. In this appeal, defendant raises the following issues for our consideration:
FAMILY COURT COMMITTED AN ABUSE OF DISCRETION AND A CLEAR ERROR OF LAW IN THE FORMULATION OF THE MARCH 16, 2010 ORDER, SPECIFICALLY ORDERING THE U.S. OFFICE OF PERSONNEL MANAGEMENT (OPM) TO MAKE PAYMENTS TO PLAINTIFF FROM DEFENDANT'S MILITARY RETIRED PAY BENEFITS AND ALSO ORDERING DEFENDANT TO MAKE DIRECT PAYMENTS TO PLAINTIFF UNTIL OPM INCREASED THE APPORTIONMENT PAYMENT TO PLAINTIFF
FAMILY COURT LACKED JURISDICATION OVER DEFENDANT'S ALLEGED NAVY PENSION OR DISPOSABLE RETIRED OR RETAINER PAY WHERE THE JUNE 24, 1991 FINAL JUDGMENT IN DIVORCE WAS FINAL AND HAS NEVER BEEN APPEALED BY PLAINTIFF, THE JUNE 24, 1991 QUALIFIED DOMESTIC RELATIONS ORDER WAS SUPERSEDED BY THE MAY 11, 1992 AMENDED QUALIFIED DOMESTIC RELATIONS ORDER THAT WAS SUPERSEDED BY THE FEBRUARY 22, 1993 2ND AMENDED QUALIFIED DOMESTIC RELATIONS ORDER THAT DISPOSED OF THE MARITIAL PROPERTY OF DEFENDANT'S U.S. POSTAL SERVICE/CIVIL SERVICE RETIREMENT SYSTEM PENSION BENEFITS AND PLAINTIFF'S MONTHLY 50% APPORTIONMENT PAYMENT THEREFROM; AND THEREFORE, FAMILY COURT LACKED AUTHORITY AND JURISDICTION TO:
A. ORDER THE U.S. OFFICE OF
PERSONNEL MANAGEMENT TO INCREASE THE AMOUNT OF THE MONTHLY APPORTIONMENT PAYMENT TO PLAINTIFF BY $563
B. ORDER DEFENDANT TO MAKE
MONTHLY PAYMENT OF $563 TO PLAINTIFF UNTIL THE INCREASED APPORTIONMENT PAYMENT TO PLAINTIFF BY OPM IS EFFECTUATED
THE MARCH 16, 2010 ORDER WAS
BARRED BY THE PRECLUSION OF SUBJECT MATTER JURISDICTION GROUNDED IN THE FINALITY OF THE FINAL JUDGMENT IN DIVORCE AND THE DOCTRINE OF RES JUDICATA WHERE THERE IS NO PRESERVATION OF THE FAMILY COURT'S JURISDICTION IN THE 2ND AMENDED QUALIFIED DOMESTIC RELATIONS ORDER SUCH AS TO ORDER OPM TO INCREASE THE MONTHLY APPORTIONMENT PAYMENT MADE TO PLAINTIFF BY $563 POINT IV NO SUBSTANTIVE EVIDENCE IN THE RECORD TO SUPPORT THE FINDINGS OF FACT AND CONCLUSION OF LAW THAT ARE IMPLIED BY THE FAMILY COURT IN THE MARCH 16, 2010 ORDER POINT V THE FAMILY COURT DID NOT HAVE ORIGINAL JURISDICTION IN THE DIVORCE ACTION IN 1991 TO ENTER THE JUDGMENT IN DIVORCE FOR LACK OF IN PERSONAM JURISDICTION OVER DEFENDANT AND LACK OF SUBJECT MATTER JURISDICTION OVER THE DIVORCE ACTION FOR FAILURE OF SERVICE OF THE COMPLAINT AND SUMMONS UPON DEFENDANT NECESSARY TO ESTABLISH THE FAMILY COURT'S JURISDICTION OVER DEFENDANT'S CIVIL SERVICE RETIREMENT PENSION BENEFITS OR OVER DEFENDA[N]T'S ALLEGED NAVY PENSION OR DISPOSABLE RETIRED OR RETAINER PAY (THIS POINT WAS NOT PRESENTED BELOW) POINT VI DEFENDANT DID NOT APPEAR AT THE MARCH 12, 2010 MOTION HEARING FOR THE REASON THE MOTION FILED BY PLAINTIFF SPECIFICALLY CHECKED THE FORM SELECTION "I WAIVE ORAL ARGUMENT AND CONSENT TO DISPOSTION ON THE PAPERS" THAT DIRECTLY INFLUENCED DEFENDANT'S CHOICE OF SELECTION ON HIS CROSS-MOTION FORM "I WAIVE ORAL ARGUMENT AND CONSENT TO DISPOSTION ON THE PAPERS" UNDERSTANDING THAT THERE WOULD BE NO PRESENTATION OF ORAL ARGUMENT BY EITHER PLAINTIFF OR DEFENDANT, WHEREAS PLAINTIFF APPEARED ON ORAL ARGUMENT WITHOUT ANY NOTICE OF PRESENT OF ORAL ARGUMENT ON MARCH 12, 2010 GIVEN TO DEFENDANT (THIS POINT WAS NOT PRESENTED BELOW)
TRANSCRIPT OF MARCH 13, 2010
MOTION HEARING SUPPORTS SHOWING:
1. JUDGE'S ABUSE OF DISCRETION, JUDICIAL BIAS AGAINST DEFENDANT;
2. PREJUDGMENT OF MOTION AND CROSS-MOTION IN FAVOR OF PLAINTIFF, 3. DEFECTIVE COLLOQUY EXAMINATION OF PLAINTIFF'S CHANGE OF MIND TO PRESENT ORAL ARGUMENT AFTER HAVING WAIVED ORAL ARGUMENT;
4. NO NOTICE TO DEFENDANT OF
PRESENTATION OF ORAL ARGUMENT; 5. NO INQUIRY OF PLANTIFF OF DEFENDANT'S WHEREABOUTS AT TIME OF THE COLLOQUY; 6. ADJUDICATION OF THE ISSUE BETWEEN PLAINTIFF AND DEFENDANT AND FOUNDATION FOR THE MARCH 16, 2010 ORDER FORMULATED BY THE COURT ARE SUPPORTED BY UNSWORN TESTIMONY AND DOCUMENTS TAKEN UNDER CONSIDERATION BY THE COURT IN FORMULATION OF THE ORDER THAT ARE NOT OF RECORD AND WHICH DEFENDANT DOES NOT HAVE EITHER KNOWLEDGE OF OR COPIES THEREOF; 7. PLAINTIFF AND FAMILY COURT JUDGE KNEW THAT THE ORDER PREPARED BY THE COURT FOR PLAINTIFF WOULD NOT BE A QDRO AND THAT OPM WOULD NOT ACCEPT IT BUT THE ORDER OBLIGATED DEFENDANT TO MAKE DIRECT PAYMENTS TO PLAINTIFF WITHOUT REGARD TO THE COURT'S LACK OF AUTHORITY TO ORDER
OPM TO COMPLY WITH THE ORDER PREPARED BY THE COURT (THIS POINT WAS NOT PRESENTED BELOW)
We agree that reversible error was committed when the court permitted oral argument by the plaintiff and took testimony in defendant's absence and without notice to him.
Both plaintiff, in her motion, and defendant, in his cross- motion, waived oral argument by checking the section that stated, "I waive oral argument and consent to a disposition on the papers." Defendant argues that he was unaware that the court would hear oral argument or receive testimony because he believed both parties had waived a hearing and, accordingly, did not appear in court on the return date of the motions. Pursuant to Rule 1:6-2(d), "no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs." (Emphasis added). In addition, the notice required in every motion includes the following: "Your response and/or cross-motion may ask for oral argument. That means you can ask to appear before the court to explain your position." R.5:5-4(d) (emphasis added). In this case, no party requested oral argument and the court did not "direct" that oral argument be held. Defendant reasonably concluded that plaintiff would not "appear before the court to explain [her] position" and that the matter would be decided on the papers. It was, therefore, error for the court to permit oral argument by plaintiff under the circumstances.
Defendant also contends that the court manifested bias toward him in the hearing. We discern no evidence of that in the transcript. The court attempted to sort out the available information to determine why plaintiff was not receiving her share of the Navy pension in a matter-of-fact manner, never made any disparaging remarks about defendant or skewed its resolution of the issue to disfavor his position. In fact, the court expressed an intention to treat defendant fairly by reducing the amount to be paid plaintiff by the amount of defendant's tax obligation:
[T]echnically speaking, the $562 should go to her and then she should pay the taxes on it. But she's not going to be because they're taking the tax out before he even gets that check. So it almost isn't fair for him to have to pay the tax on the part she gets. So even though he's not here to argue that, I'm saying I'm just trying to make it equitable that she would . . . get her $450 and not owe any taxes on it because he's already . . . paid the tax . . . .
We have considered defendant's remaining arguments and are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Because defendant was deprived of the opportunity to be heard, we reverse the order of March 16, 2010, and remand for an evidentiary hearing. We do not retain jurisdiction.
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