On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-6706-93-G.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically March 25, 2011 --
Before Judges Carchman and Messano.
Plaintiff Barbara Manning, now known as Barbara Carroll, appeals from an order of the Family Part that granted defendant John Manning's application for counsel fees. As to the amount of such fees, the order provided only "Defendant's attorney's fees and costs shall be paid by Plaintiff." No specific amount was set forth nor analysis of the demanded fees considered on this record. We conclude in the first instance, on the facts presented, that defendant was not entitled to fees. We reverse.
These are facts adduced from the record. The parties were divorced in 2004. Three daughters were born of the marriage. By order of July 20, 2007, only the oldest child was deemed emancipated, and defendant was ordered to pay $592 per month in child support for the other two. Defendant, who was in substantial arrears, was ordered to pay an additional sum for arrears in the amount "of $50 per month until the oldest unemancipated child is emancipated, at which point the basic child support will be reduced to $296 per month and the arrears payment will be increased to $296 per month." Upon the second child's emancipation, one-half of the child support payment would be credited toward defendant's arrears. Similarly, upon the youngest child's emancipation, child support payments would cease, and the entire $592 per month would be applied towards arrears. The arrears were fixed at $14,198.28.
In addition, the 2007 order obligated "plaintiff to provide the defendant in writing the date of graduation when each child becomes emancipated." Apparently, defendant did not have a relationship with his daughters, and was solely dependant upon plaintiff to inform him of their graduation as the event triggering emancipation.
The middle daughter graduated from college on May 18, 2008, and the youngest on May 20, 2009. Plaintiff did not inform defendant of these events, and defendant continued to make payments, which were considered by the Probation Department to be regular child support payments.*fn1
According to defendant, he first became aware of the issue in December 2009, when there was a garnishment of his workers' compensation and disability payments.
Defendant's counsel inquired as to the children's emancipation on December 29, 2009, and again on January 7, 2010, although the latter letter limited the inquiry to the youngest child. On the same day, plaintiff's counsel responded that the youngest child "graduated on May 20, 2009." On January 19, 2010, defendant requested information as to the middle child, and plaintiff's counsel responded the same day with the requested information.
A series of letters followed proposing a settlement of defendant's
outstanding obligations. After initially not
responding, plaintiff rejected the settlement proposal*fn2
and set forth her calculation of the arrears. After
considering the emancipation dates, each party arrived at a calculated
arrearage amount. Plaintiff claimed the arrears were $8,494.07, while
defendant asserted that they were $7,222.63. Defendant later
recalculated and claimed that the arrears were only $6,216.61. That,
too, was revised to reflect, according to defendant, arrears of
By letter of May 20, 2010, plaintiff rejected defendant's settlement proposals and asserted that the only issue was the fixing of arrears. She noted that she "is more than willing to have the outstanding balance of arrears judicially reviewed and reduced to an Order." Again, she rejected defendant's various settlement offers as incorporated in proposed "consent orders."
Defendant filed a motion seeking the following relief:
1. Holding the Plaintiff in violation of litigant's rights for her willful failure to comply with the terms and provisions of the prior Order ...