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John Angelastro v. Michelle Angelastro


April 8, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1868-07W.

Per curiam.


Argued March 23, 2011

Before Judges Sapp-Peterson and Fasciale.

In this post-divorce judgment matrimonial case, plaintiff-husband appeals from a September 29, 2010 order declining to modify his child support and alimony obligations, and permitting a wage execution to enforce his arrearages. We affirm the enforcement of the arrearages and dismiss as moot that part of the appeal concerning his request for a downward modification of his support obligations.

This is the second appeal in which we have recently addressed the husband's attempt to reduce his support obligations. He first appealed a June 2, 2010 order denying his motion seeking a downward modification of alimony and child support and contended that his wife's significant increase in income constituted a change in circumstances. We agreed, reversed and remanded the matter, permitted discovery, and allowed for a plenary hearing to determine whether the husband is entitled to a reduction in his support obligations. We also ruled that the husband could revisit his counsel fee application. Angelastro v. Angelastro, No. A-5313-09 (App. Div. March 7, 2011).

The present appeal arises from the husband's second attempt to reduce his payments. While his appeal of the June 2 order was pending, the husband filed another motion seeking a downward modification. This time he argued that a change in circumstances existed because he lost his job. The wife cross-moved for a wage execution order in an attempt to collect support arrearages.

On September 29, 2010, the motion judge refused to rule on the husband's second request for a downward modification because the appeal from the June 2 order was pending. The judge granted the wife's cross-motion permitting an execution on the husband's unemployment benefits, restrained the husband from dissipating his 401(k) account, and awarded counsel fees of $350 to the wife. On October 22, 2010, the judge denied the husband's request for a stay of the September 29 order, permitted the husband to withdraw up to $200,000 from his 401(k) so long as $200 per week is earmarked towards his support obligation of $550 per week, and reserved on the issue of counsel fees for the wife.

On appeal from the September 29 order, the husband argues that the judge erred by declining to modify his support obligations, and by permitting enforcement of his arrearages.

The motion judge declined to modify the husband's support obligations and correctly indicated that she lacked jurisdiction due to the husband's pending appeal from the June 2, 2010 order.

R. 2:9-1(a); Rolnick v. Rolnick, 262 N.J. Super. 343, 365 (App. Div. 1993). Nevertheless, the subject of alimony and child support modification is moot because we have previously remanded the issue to the trial court.*fn1

The enforcement of the husband's support arrearages is not subject to a stay. Therefore, we will not disturb the issuance of the wage execution order. See Rule 2:9-6(a); McNair v. McNair, 332 N.J. Super. 195, 198 (App. Div. 2000) (filing an appeal does not dissolve appellant's obligations to follow the motion judge's order unless a stay is granted). There is no credible evidence to support counsel's argument that the wage execution has had a negative impact on the husband's job search, but on remand, the husband may raise that argument before the judge at the upcoming conference.

That part of the September 29 order concerning the husband's 401(k) is not contested on appeal and we will not disturb it. If the husband chooses to invade the 401(k) funds, the children's interests will be protected because the October 22 order requires him to earmark $200 per week towards his current obligations.

Affirmed in part and dismissed in part. We do not retain jurisdiction.


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