March 8, 2012
CORA LEE HABER, PLAINTIFF-RESPONDENT,
DAVID HABER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-11754-89.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 10, 2011 -
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this post-judgment matrimonial action, defendant David Haber (husband) appeals from orders of August 31, 2010 and September 14, 2010 entered in New Jersey finding New Jersey held jurisdiction over the support obligations under the Uniform Reciprocal Enforcement Support Act (URESA), N.J.S.A. 2A:4-30.24 to -.61, and the Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.65 to -.123, and granting counsel fees to plaintiff Cora Lee Haber (wife). Husband challenges New Jersey's continuing, exclusive jurisdiction, alternatively argues the doctrine of laches requires reversal of the support and alimony, and challenges, as without basis or explanation, the $3,500 counsel fee award to wife. We affirm in part and remand in part.
The parties were married in 1971. They had three children, a daughter born in February l974, a son born in June l976, and another son born in August l979. The parties separated in September 1988, the children remained in wife's custody, and husband moved to California. The parties were divorced on January 16, 1991 in New Jersey. According to the final judgment of divorce (FJD), husband chose not to appear, custody of the three minor children was granted to wife, child support was set at $900 per week, and husband was obligated to continue to provide medical coverage for the children. The FJD was silent as to alimony,*fn1 but among other terms, a judgment was entered for $35,550 for support arrearages and $9,033 as reimbursement for wife's out-of-pocket medical expenses, which accumulated during the pendente lite period.
Wife had filed a URESA petition on December 19, 1989, which specifically requested California to enforce the pendente lite child support order of $450 per week for three children that had been set in August 1989 and to continue to provide medical coverage for them.*fn2 The order was not entered in California until November 8, 1991, after the divorce. It was captioned as a stipulated order for husband to pay $333 per child per month for support and to continue to maintain the current level of medical coverage for them. The order further provided that "[a]rrears are not determined at this time pending [husband's] appeal on the New Jersey order." However, an arrears determination was scheduled for January 16, 1992.
Presumably pursuant to a routine review under the URESA petition, because their daughter turned eighteen and was graduating from high school, husband signed a May 21, 1992 stipulation and an order was entered on June 23, 1992 in California modifying the prior support order. The order obligated husband to pay $386.50 per child per month for each of his sons only, totaling $773 per month, plus $227 per month toward the $69,920.65 arrearages. A review was scheduled for November 19, 1992.
Our record does not reflect an appeal by husband of the FJD noted in the California order. It does reflect, however, that some time before July 24, 1992, husband's attorney filed a motion in New Jersey to vacate and modify the FJD, with financial submissions, and wife filed a cross-motion. By orders of July 24, 1992, in pertinent part, Judge Mark A. Sullivan amended husband's support obligation under the FJD effective April 29, 1992 to $300 per week for the three children plus $270 per week alimony. The order further provided that "[a]ny and all arrearages accruing since April 29, 1992 based on the difference between $900.00 per week and *fn3 are hereby vacated." The other order provided that child support for the parties' daughter would "be continued while she is a Full Time College Student, as well as the two boys in the future." These orders were not appealed and were not sought to be modified in New Jersey until husband filed the January 2009 motion that precipitated this appeal.
It is apparent husband did not inform Judge Sullivan of the June 23, 1992 California order, which was at variance with the modified FJD in that the child support figure was significantly less and their eldest child was not included in husband's support obligation. Nor did he inform the California court that an order had been entered in a final decision that he had litigated in New Jersey.
On August 26, 1992, wife filed an amended URESA petition seeking enforcement of spousal support and collection of arrears by income withholding in California pursuant to the July 24, 1992 New Jersey order, which was processed in California on November 2, 1992. On February 17, 1993, an order was entered in California setting spousal support payable by husband by wage execution at $275 per month in accordance with California guidelines.
According to the preamble, husband requested modification of child and spousal support in California, resulting in a June 9, 1994 order reducing child support to $675 per month, allocated $253 for the parties' eldest son and $422 for their younger son, reducing spousal support to $172 per month, plus $200 per month toward child and spousal support arrearages. On March 22, 1994, wife's opposition to the modification request was sent to the California courthouse, in which she advised of husband's court-ordered obligation of $570 per week and arrearage of $129,438.71, and attached Verification of Arrearages from the Monmouth County Probation Department. It is unknown whether the letter reached the judge.
Pursuant to a review hearing in California, a "modification" order was entered on August 31, 1994, obligating husband to pay $439 per month for the parties' youngest son (presumably terminating child support for their eldest son who had recently turned eighteen) and $380 per month for spousal support by wage execution. The arrearages as of August 25, 1994 were listed as $70,142 for child support and $1,874.06 for spousal support.
The next California order in the record was entered on August 26, 1997, which is referenced as an "Order to Show Cause re: Modification of Child Support/Spousal Support & Other (Release of Driver's License) by [Husband]." It denied modification of child support, reduced spousal support to zero, effective April 1, 1997, and conditionally released husband's driver's license provided he pay child support of $350 per month. Wife opposed the reduction through the probation department in New Jersey pursuant to a May 7 request that "[t]he [California] Commissioner insists" wife's completed income and expense statement, three recent pay stubs and l996 tax returns be provided. Wife also wrote a lengthy letter of April l7, 1997 with attachments, which references the case number, but has no designation of the recipient. It is unknown whether this submission was attached to New Jersey probation's submission and what, if any, submissions were received by the Presiding Commissioner.
Our record skips to a decade later, February 24, 2008, when husband sent Hunterdon County Probation Department a letter in response to a denial of passport because of child support arrears. He referenced a levy that probation had placed on one of his accounts on January 29, 2007 to collect $83,137 in child support arrears, which he claimed he opposed through counsel, and which was cancelled. Husband claimed New Jersey did not have continuing, exclusive jurisdiction over his child support order and noted the August 26, 1997 California order, claimed his children had been emancipated for years, and referenced payments made for child and spousal support.
On March 20, 2008, the New Jersey Department of Human Services, Division of Family Development (DHS), responded and advised that husband's child support arrears totaled $36,036.90 as of March 7, 2008. The same day, husband received a letter from the Hunterdon County Probation Department advising that New Jersey retained continuing, exclusive jurisdiction because the FJD was entered in this State and enclosing his payment history. By letter of May 13, 2008, probation advised that a review of the file revealed an error in the calculation of husband's outstanding obligation and the New Jersey case had incorrectly been adjusted to reflect the California orders when, in fact, New Jersey retained "Continuing Exclusive Jurisdiction" over the matter. The letter further advised that the New Jersey July 24, 1992 order modifying the FJD was the controlling order, which remained in effect. The probation department recalculated husband's outstanding obligation for child and spousal support at $428,323.83, and recommended he file a motion in New Jersey for emancipation of his children.
In January 2009, DHS served a notice of levy on husband's brokerage accounts. Husband then filed a motion in New Jersey seeking to terminate his child and spousal support obligations, enforce the California orders, and emancipate his three children. Wife filed a cross-motion for enforcement, certifying that she never consented to jurisdiction in California, never stipulated to the modification of the New Jersey orders, was unaware of most of the proceedings in California, did not receive the orders until the subject motion was filed, and was under the impression the New Jersey probation departments were collecting and enforcing the child and spousal support that had been ordered. On June 12, 2009, the court entered an order for discovery to be completed by September 1, 2009, and set dates for plenary hearings later in September.
The court entered an order on December 3, 2009, vacating all levies on and directing non-dissipation of husband's investment and retirement assets. The discovery dates were extended and the plenary hearing dates were rescheduled.
Upon determining a plenary hearing was unnecessary, following oral argument on July 12, 2010, Judge Francis P. DeStefano issued an oral decision, memorialized in an order of August 31, 2010. The parties agreed the children should have been legally emancipated years before and stipulated the dates of emancipation. The judge found wife did not submit or consent to the jurisdiction of California and that New Jersey was the controlling state under both URESA and UIFSA for child and spousal support. He further directed an audit of payments made by husband for calculation of husband's outstanding support obligation.
On July 28, 2010, wife filed: (1) an order to show cause to prevent dissipation of funds in husband's accounts; (2) a complaint against husband and his financial institutions asserting claims of fraud, negligence, conversion, unjust enrichment, and breach of fiduciary duty; and (3) a motion to enforce litigant's rights demanding husband return dissipated funds in the amount of $418,614.19. Husband filed a cross-motion. By order of September 10, 2010, another judge heard argument by both parties on wife's notice of motion to enforce litigant's rights and husband's cross-motion. On September 14, 2010, the court directed that $750,000 of husband's assets remain frozen and awarded wife $3,500 in counsel fees.
Husband appealed the August 31, 2010 order and the counsel fee award portion of the September 14, 2010 order.
On appeal, husband argues: (1) New Jersey probation departments incorrectly calculated his child and spousal support arrears; (2) New Jersey did not have continuing, exclusive jurisdiction over the child and spousal support orders under either URESA or UIFSA; and (3) the court committed harmful error in failing to conduct a plenary hearing as initially contemplated, for example, on the issue of whether wife affirmatively requested California to modify the New Jersey support order in her amended URESA petition. He alternatively argues that if New Jersey retained continuing, exclusive jurisdiction, the doctrine of laches requires reversal of the August 31, 2010 court order. Husband further asserts the court abused its discretion by awarding counsel fees in connection with the September 14, 2010 order without considering the requisite statutory factors and making findings. He requests any remand be made to different Family Part judges than those who were involved in this case.
Based on our review of the record and applicable law, we are satisfied the August 31, 2010 order is supported by the record and there is no sound reason for us to interfere. Judge DeStefano properly exercised his discretion and correctly applied the law. However, the other judge's decision to award counsel fees to wife memorialized in the September l4, 2010 order was deficient and warrants a remand.
We first note our standard of review. Because of their expertise, we generally defer to a Family Part judge's fact finding and conclusions of law, which will only be disturbed if they are manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Under URESA, which governed interstate support disputes until it was repealed in 1998, support orders could be enforced in multiple states. N.J.S.A. 2A:4-30.53 provided that a support order was "not nullified by a support order . . . made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court." Accordingly, amounts paid pursuant to an order in another state were credited to the amounts owed in New Jersey. N.J.S.A. 2A:4-30.53.
As URESA allowed for multiple orders in multiple states, subsequent orders did not invalidate the original order. See Banks v. Banks, 221 N.J. Super. 282, 284-85 (App. Div. 1987). For example, in Banks, a judgment of divorce was entered in New Jersey, the husband moved to Tennessee, and he fell behind on his support obligation. Id. at 283. The wife then filed a complaint under URESA that was transmitted to Tennessee, and a Tennessee court reduced the husband's support obligation and outstanding arrears. Id. at 284. Notwithstanding the Tennessee order, the New Jersey Family Court entered two orders enforcing the original support obligation under the divorce agreement. Ibid. On appeal, we held that "the order of a responding state . . . may modify a support judgment or order of an initiating state solely for the purpose of enforcement in the responding state, without affecting the validity or enforceability of that judgment or order in the initiating state which entered it[.]" Id. at 285.
In March 1998, as URESA was repealed, UIFSA was enacted and provided for consistent enforcement of support orders by establishing continuing, exclusive jurisdiction. N.J.S.A. 2A:4-30.65 to -30.123. With respect to child support, N.J.S.A. 2A:4-30.72(a) provides: A tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a child support order:
(1) as long as this State remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
(2) until all of the parties who are individuals have filed written consents with the tribunal of this State for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.
Therefore, under UIFSA, "jurisdictional disputes are resolved by reference to the concept of continuing, exclusive jurisdiction." Youssefi v. Youssefi, 328 N.J. Super. 12, 20 (App. Div. 2000) (internal quotation marks and citations omitted). A state that has issued an order retains continuing, exclusive jurisdiction if it is the residence of the obligor, the obligee, or the child, unless the parties have provided written consent for a certain state to assume continuing, exclusive jurisdiction. N.J.S.A. 2A:4-30.72(a).
In determining whether parties have consented, there is a "strict requirement for the entry of written consent." Teare v. Bromley, 332 N.J. Super. 381, 390 (Ch. Div. 2000). "UIFSA expressly requires the written consent of both parties to divest a state of its continuing, exclusive jurisdiction. Therefore, it would be inappropriate to find consent without a clear expression of specific intent to defer jurisdiction, as contemplated by UIFSA." Peace v. Peace, 325 N.J. Super. 122, 131 (Ch. Div. 1999) (internal citation omitted). Consent to allow a subsequent court to modify an original state's child support order should be found "only upon a clear showing that the parties knowingly and voluntarily desired that result." Bednarsh v. Bednarsh, 282 N.J. Super. 482, 489 (Ch. Div. 1995).
For example, in Teare, supra, a URESA petition did not satisfy the written consent requirement because it did not expressly waive New Jersey's jurisdiction. 332 N.J. Super. at 389. "There [was] no implied consent that Maryland law govern[ed] merely because interstate URESA transmittals were initiated." Ibid. Similarly, in Peace, supra, a child support order was entered in New Jersey prior to a divorce entered in Nevada that included a joint agreement for child support. 325 N.J. Super. at 130. Despite the agreement in Nevada, the Family Part found "consent [was] simply not there, either express or implied[,]" to remove New Jersey's jurisdiction. Ibid.
Without written consent declaring which state has jurisdiction, it is possible under UIFSA for more than one state to have continuing, exclusive jurisdiction. Teare, supra, 332 N.J. Super. at 386. In those situations, the court needs to decide which state issued the "controlling order" under N.J.S.A. 2A:4-30.74, and that state is the only state with jurisdiction to modify the order. Ibid. Specifically, N.J.S.A. 2A:4-30.74(b) provides:
If a proceeding is brought under this act, and two or more child support orders have been issued by tribunals of this State or another state with regard to the same obligor and child, a tribunal of this State shall apply the following rules in determining which order to recognize for purposes of continuing, exclusive jurisdiction:
(1) If only one of the tribunals would have continuing, exclusive jurisdiction under this act, the order of that tribunal controls and shall be so recognized.
(2) If more than one of the tribunals would have continuing, exclusive jurisdiction under this act, an order issued by a tribunal in the current home state of the child shall be recognized, but if an order has not been issued in the current home state of the child, the order most recently issued controls and shall be recognized.
(3) If none of the tribunals would have continuing, exclusive jurisdiction under this act, the tribunal of this State having jurisdiction over the parties, shall issue a child support order which controls and shall be so recognized.
In Teare, supra, the "controlling order" was the New Jersey order because it was the home state of the child, the initial order was issued by New Jersey, and the child did not leave New Jersey. 332 N.J. Super. at 390. Accordingly, Maryland could not modify New Jersey's order. Ibid. In Peace, supra, both New Jersey and Nevada had continuing, exclusive jurisdiction, but since jurisdiction was not waived, the home state of the child determined that New Jersey was the state with the controlling order. 325 N.J. Super. at 132. The Family Part reasoned that "even though the other state, which is not the home state of the child, may theoretically have continuing, exclusive jurisdiction, the statute provides that only the controlling orders from the home state of the child be recognized." Ibid.
UIFSA provides separate guidelines for spousal support orders, stating, "[a] tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation." N.J.S.A. 2A:4-30.72(f). Further, the statute provides that a New Jersey tribunal "may not modify a spousal support, custody visitation, or non-child support provisions of an order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that state." Ibid.
Judge DeStefano found that regardless of whether the court applied URESA or UIFSA, New Jersey retained jurisdiction over husband's child and spousal support obligations. He first applied URESA because that statute controlled in 1991, when the FJD was entered in New Jersey. The judge noted that, similar to Banks, even if California modified the New Jersey support orders for enforcement purposes under URESA, New Jersey maintained jurisdiction to enforce or modify the spousal and child support orders without regard to California's existing orders.
Judge DeStefano noted that all relevant orders in this case were entered prior to the repeal of URESA and the enactment of UIFSA on March 5, 1998. However, due to the "inherent chaos under URESA," the judge also provided an alternative analysis of this case under UIFSA. He first addressed spousal support and explained that UIFSA "prohibits a tribunal from a state, other than New Jersey, from modifying a New Jersey spousal support order" under N.J.S.A. 2A:4-30.72(f). Because California has an identical statutory provision, thus confirming that New Jersey maintained continuing, exclusive jurisdiction over spousal support orders issued in New Jersey, the judge noted that California's statute would preclude its tribunal from modifying a New Jersey order. Cal. Fam. Code § 4909(f).
According to Judge DeStefano, the controlling order regarding spousal support was entered in New Jersey on July 24, 1992, when alimony was set at $270 per week. Therefore, he found the four orders as to spousal support entered in California in 1993, 1994 and 1997 to be unenforceable under UIFSA.
Judge DeStefano next examined the issue of child support and concluded New Jersey had continuing, exclusive jurisdiction over the child support order. Pursuant to N.J.S.A. 2A:4-30.72, New Jersey would retain continuing, exclusive jurisdiction because it was the home state of the mother and the children, and the parties did not consent to California's jurisdiction.
The judge rejected husband's argument that wife consented to California's jurisdiction in l99l by "stipulat[ing]" to various orders entered there. He found that wife did not expressly waive New Jersey's jurisdiction by pursuing the URESA petition in California, stating:
[Wife's] petition filed in California seeked to enforce . . . the orders previously entered by the New Jersey courts. UIFSA delineates a strict requirement of written consent . . . and filing a petition in California seeking to enforce child support does not rise to the level of the written consent requirement of the statute.
[Wife's] application submitted to the California court sought registration of New Jersey's order for enforcement purposes through URESA and/or UIFSA. [Wife] contends she never provided a waiver and more importantly, did not have notice of many of the applications made by [husband] in California.
However, upon closer inspection, [wife], actually, filed a petition for both enforcement and modification of a prior support order. [Husband] argues [wife's] amended UIFSA petition in California, which sought a "modification" of support, according to the California guidelines, affirmatively sought relief from the California courts and thus constitutes consent to jurisdiction.
This Court finds [wife's] request for modification contained on a URESA petition is not clear consent that [wife] sought to divest New Jersey of jurisdiction. The language of URESA clearly contemplates expressed written consent to the jurisdiction of another state.
The judge further explained that wife "merely asserted her rights to interstate enforcement rather than avail herself to the jurisdiction of California[,]" and that she would be "punished for asserting her rights" and the result would thwart the intent of URESA and UIFSA if the court determined this action waived New Jersey's jurisdiction.
Husband makes several arguments as to why New Jersey lost continuing and exclusive jurisdiction. He contends URESA applied to this case and the court committed harmful error in applying UIFSA retroactively. This argument fails because Judge DeStefano did not apply UIFSA retroactively. The judge specifically noted that URESA was in effect when the support orders were entered and he applied URESA to this case, concluding that New Jersey retained jurisdiction over its support orders. The judge only applied UIFSA as a back-up after discussing URESA.
Regardless of whether URESA or UIFSA applies to this case, the result is the same - New Jersey has continuing, exclusive jurisdiction over the alimony and child support orders emanating from the FJD throughout the entirety of their obligation under this State's law. Husband's surreptitious attempts to reduce his child and spousal support obligations through the California court system both before and after July 24, 1992, did not invalidate nor render unenforceable the New Jersey orders. See N.J.S.A. 2A:4-30.53 (providing that under URESA, a support order is "not nullified by" a support order in another state). Moreover, under Banks, supra, 221 N.J. Super. at 285, a responding state under URESA may modify a support order entered pursuant to a New Jersey divorce only for the purpose of enforcement without affecting its validity or enforceability in New Jersey. As noted by Judge DeStefano, California law also prohibits its courts from modifying a spousal support order when another state has continuing, exclusive jurisdiction. We additionally observe that the November 8, 1991 and June 23, 1992 California orders were entered in response to wife's December 19, 1989 URESA petition requesting enforcement of her pendente lite child support order.
Wife filed a complaint for divorce in New Jersey where the parties and children lived. It was only after their separation that husband moved to California; wife and children remained in New Jersey. The FJD that was entered in January 1991 provided for an unallocated $900 per week child support obligation to ensure its efficient interstate collection. It further established pendente lite support arrears at $35,550.
Most critically, husband demonstrated his awareness of New Jersey's continuing jurisdiction over issues respecting the dissolution of the marriage when he retained counsel and filed the motion in New Jersey to modify the FJD, a year after its entry. Notwithstanding the California orders of November 8, 1991 and June 23, 1992, which he did not disclose to Judge Sullivan, husband affirmatively submitted himself to the New Jersey court, provided financial documentation and orally argued his position respecting child support and alimony. He did not appeal the ruling. Accordingly, the July 24, 1992 orders that obligated husband to pay $300 per week support for each of his three children (including his eighteen-year old daughter who was planning to attend college) and $270 per week alimony were controlling. New Jersey retained the continuing right to enforce them notwithstanding any California orders.
Husband next argues that if UIFSA applies, wife waived New Jersey's continuing, exclusive jurisdiction over support by consenting to California jurisdiction. We disagree. The record and case law supports Judge DeStefano's finding that wife did not consent to such a waiver. There is a strict requirement of written consent in order to divest a state of its continuing, exclusive jurisdiction over child support orders under N.J.S.A. 2A:4-30.72(a)(2). Parties must expressly intend to remove jurisdiction in order for jurisdiction to be divested. Wife expressed no intention to divest her and her children's home state of New Jersey of jurisdiction. Nor did wife file written consent allowing California to assume continuing, exclusive jurisdiction.
We also reject husband's argument that wife stipulated to jurisdiction when a California court entered a "stipulation to order for support" and a "modification of order for support by stipulation" on November 8, 1991 and June 23, 1992. As previously stated, these two orders pertained to pendente lite arrears. Additionally, although these orders were called "stipulations," there is no evidence wife signed these stipulations.
Husband's argument that wife's failure to object to these stipulations demonstrated her consent is also unfounded in fact and law. New Jersey case law requires express written consent, and failure to object to a California order, albeit entitled a "stipulation," does not demonstrate wife's intention to submit to California's jurisdiction. Moreover, wife certified she was not aware of the majority of the California proceedings or orders and husband presented no evidence to the contrary. Wife's statement is further buttressed by the fact that husband did not disclose these orders to Judge Sullivan during the July 1992 motion.
Husband also argues that wife's filing of the amended URESA petition in New Jersey on August 26, 1992 seeking modification of the support order, which resulted in the February 17, 1993 California order for $275 per month spousal support, constituted her consent to submit to jurisdiction of the California court. We disagree. A review of wife's amended URESA petition, filed promptly after Judge Sullivan's order, reflects her intention solely to modify prior enforcement orders in California to include spousal support and arrearages by income withholding. In fact, the motion completed on her behalf by California Child Support Division staff on November 2, 1992 expressly states that "[i]nitiating jurisdiction has requested via Amended Petition we obtain and enforce a spousal support order in accordance with the Monmouth County, New Jersey order." The motion requests spousal support of $270 per week or per California guidelines. It is clear the intention was to obtain for wife the maximum amount of a wage execution permitted for spousal support under California law to satisfy husband's ongoing alimony obligation established in New Jersey and any arrears. It would be counterintuitive for wife to submit herself to California's jurisdiction to re-litigate an alimony award that recently had been decided in her favor following contested proceedings in New Jersey. The February 1993 California order set husband's spousal support obligation in accordance with its state's guidelines but did not modify the New Jersey order.
Husband next argues that wife consented to the California order modifying his child support obligation dated June 9, 1994 because she did not file an appeal or move for reconsideration, and did not oppose the August 31, 1994 modification order (removing the parties eldest son from the child support obligation) that emanated from the review hearing. Again, it is clear that New Jersey law requires express written consent to remove jurisdiction, and failure to voice concern or file an appeal is not enough. Wife's March 22, 1994 submission to the California court, assuming it even reached the judge, merely advised of husband's obligation under the controlling 1992 New Jersey order and of his outstanding arrears.
We discern no error by Judge DeStefano in declining to conduct a plenary hearing on the issue of whether wife affirmatively requested California modify the New Jersey support order in her amended URESA petition. A plenary hearing was initially scheduled by the court. On July 12, 2010, during a colloquy with the court, both attorneys noted the matter was listed for a plenary hearing. Judge DeStefano stated, however, "[t]here's no need for a plenary hearing. . . . The facts . . . are there." Husband's attorney agreed, stating "You're . . . preaching to the choir."
Plenary hearings enable the trial court to find the facts and state its conclusions of law thereon. See Hallberg v. Hallberg, 113 N.J. Super. 205, 208 (App. Div. 1971). Here, as recognized by husband's attorney in the discussion with the trial court, there were no material issues of fact that needed to be determined in a plenary hearing because all of the relevant certifications, orders, and other documentary evidence were in the record.
We turn now to husband's alternative defense of the equitable doctrine of laches, which he claims bars wife from seeking to enforce the child support and spousal arrearages, and which he argues Judge DeStefano failed to appropriately consider. Husband points to wife's delay in asserting her claim. He repeats the argument that wife affirmatively requested in many instances that modifications be made in accordance with California law, such as her August 26, 1992 petition, and failed to object to the enforceability of the California orders by filing a motion to vacate or modify the orders until her cross-motion in the current New Jersey action, which was nineteen years from the first California child support order (November 1991) and thirteen years from the order eliminating alimony (August 1997). Husband further points to the fact that New Jersey probation, purportedly on wife's behalf, consistently accepted the modified figures in its requests for income withholding.
According to husband's certification, based on the California figures, he actually overpaid support by a minimum of $16,000; he does not want a refund but "simply want[s] to move on with [his] life, without having to worry about the Probation Department garnishing [his] wages, freezing [his] assets or attempting to levy against [his] retirement accounts." Husband's brief argues that he "relied upon the California Court modification Orders, and deemed them binding upon him moving forward" and the prejudice to him resulting from wife's failure to assert her claim is "catastrophic" because he "substantially overpaid his support obligation, [but] is now faced with substantial support arrearages."
Wife noted that husband exhibited bad faith from the outset such that during the 1991 FJD proceedings the court made express findings that husband's statements regarding his finances contained in affidavits were "not worthy of belief" and "since he has not paid any support at all since August of 1990, [wife] will be forced to resort to interstate enforcement proceedings" in California, and specifically tailored the support award to enable wife "the opportunity for more expedient enforcement of the collection." According to wife, she and the probation department then engaged in "substantial and lengthy efforts to procure compliance" from husband on his child support and alimony obligations established by the New Jersey court that had continuing, exclusive jurisdiction over the matter, through the filing of URESA petitions, wage executions, and as his arrearages soared, the restraint on issuance of a passport and levies on his accounts. Wife emphasized that husband continued to exhibit unclean hands in his surreptitious applications to and dealings with the California and New Jersey courts, which did not entitle him to equitable relief.
When a party fails to assert a known legal right within a reasonable time, thereby causing prejudice to the opposing party, the right to seek enforcement may be denied by invoking the equitable doctrine of laches. Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 570 (App. Div. 2003). The key factors for the court to consider are "the length of delay, reasons for delay, and change of position by either party during the delay." Ibid. Knowledge and "unexplainable and inexcusable delay" in enforcing a right are indispensable elements of the defense. Notch View Assocs. v. Smith, 260 N.J. Super. 190, 207 (Law Div. 1992) (internal quotation marks and citations omitted). Mere delay is not enough to establish the defense. Enfield v. FWL, Inc., 256 N.J. Super. 502, 522 (Ch. Div. 1991), aff'd o.b., 256 N.J. Super. 466 (App. Div.), certif. denied, 130 N.J. 9 (1992).
In Clarke, supra, we affirmed the trial judge's conclusion that the wife's twenty-one year delay in seeking to collect unpaid alimony was excused by the husband's refusing to pay this obligation, flight from New Jersey, and secretion of his whereabouts. 359 N.J. Super. at 570. We agreed there was no evidence that the husband "changed his position or was prejudiced by the delay" and neither he nor his estate "should benefit from [the wife's] unsuccessful efforts to locate him." Ibid.
Here, Judge DeStefano held the doctrine of laches did not bar wife from collecting spousal support even though seventeen years had passed from the FJD and nearly thirteen years had passed from the California order eliminating alimony. The judge focused primarily on husband's lack of "clean hands" that would entitle him to equitable relief, citing a variety of cases, including Faustin v. Lewis, 85 N.J. 507, 511 (1981). He was convinced the record demonstrated that husband abandoned his family and used the 3,000 mile distance between California and New Jersey to his advantage. Judge DeStefano found defendant acted in "bad faith after he simultaneously sought relief in both New Jersey and California courts" and exercised "quintessential forum shopping at its worst." The judge pointed out that when husband filed his motion to modify the FJD in July 1992, he did not inform Judge Sullivan of the California order entered "mere days before" that modified husband's support obligation. The judge also reiterated that wife's attempt to enforce the New Jersey order in California through the interstate procedure did not constitute express written consent to California's jurisdiction. Under the totality of the circumstances, the judge concluded it would be "inequitable for [husband] to now seek to enforce only the California orders, especially if [husband] sought relief from the New Jersey courts."
We are satisfied the record supports the findings and conclusion of the Family Part, a court of equity. Husband chose not to appear at the January 1991 FJD hearing, though it is clear he was given notice of the date, and to rely on his affidavits, which the court discredited. The court set child support at $900 per week and an arrearage figure. In the stipulated California order in November 1991, husband misrepresented that he was appealing a New Jersey order, and it does not appear he informed the California court that the FJD had superseded the pendente lite order which was the basis of wife's initial URESA petition.
Recognizing New Jersey's continuing jurisdiction over marital issues, husband then retained counsel and sought to modify the FJD, and did not appeal Judge Sullivan's July l992 orders setting child support at $300 per week for the three children, expressly continuing it while each was a full-time college student, and establishing an alimony award of $270 per week arising from the parties' seventeen-year marriage. As noted by Judge DeStefano, husband did not disclose the California order entered the prior month that excluded the parties' eighteen-year-old daughter who was planning to attend college from the child support calculation. Nor did it appear husband provided the controlling New Jersey orders to California because his eldest son was then removed from that state's support calculation when he turned eighteen in June 1994. Husband thus had no reasonable basis to rely upon the California orders respecting child support.
Though not expressly addressed by Judge DeStefano, we also note that "the right to child support belongs to the child and may not be waived by a custodial parent." L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002) (citing, in part, Kopak v. Polzer, 4 N.J. 327, 333 (l950)). See also Ordukaya v. Brown, 357 N.J. Super. 231, 240-41 (App. Div. 2003) (citing Monmouth Cnty. Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super. 83, 95-96 (Ch. Div. 1997)). Thus, in considering the equities, we are dealing not just with wife's right to a monetary claim but, rather, with the independent claim made on behalf of the three now-emancipated children for outstanding support due them. See L.V., supra, 347 N.J. Super. at 41.
Husband litigated the issue of alimony in New Jersey in July 1992. After considering the evidence and arguments of counsel, Judge Sullivan made an alimony award to wife.*fn4 As the order was silent as to its designation and considering this was a long-term marriage, we presume the award was for permanent alimony. Less than three years after the order, husband filed a motion to modify alimony in California, rather than return to the New Jersey court, which issued the order, was familiar with the case, and would have applied the Lepis*fn5 standard of changed circumstances, which would have been especially difficult for husband to satisfy so soon after entry of the order. Wife's response through probation with limited financial information required by the California Commissioner was clearly not consent to its jurisdiction. Under the circumstances, husband had no reasonable basis to rely upon the California order eliminating alimony effective April l, 1997. Though it would have been preferable for wife to have followed up with the California court to have ascertained the outcome of husband's motion, it is not unreasonable for her to have assumed her right to alimony was protected by the order of the state where she resided. Moreover, husband presents no evidence that wife received a copy of the l997 order and sat on her right to enforce the alimony obligation against him. In fact, wife relied on probation to continue to proceed with wage executions, levies, and other statutory and regulatory enforcement proceedings to collect the outstanding monies due her and her children.
We further observe that husband made no allegation or presented any evidence that he changed his position or was prejudiced by the delay, other than the generic statement that he believed he overpaid based on the California orders and continued to be unnecessarily hounded by probation for support obligations and alimony that should not have been due. Husband, then sixty-three years old, made no claim that he was elderly, in poor health, or he would have taken action sooner in New Jersey to file the present motion. To the contrary, the record reveals husband has sufficient assets to satisfy his outstanding spousal and child support obligations, and despite having received the May 13, 2008 letter from probation, he did not file the present motion until his brokerage accounts were levied upon by DHS in January 2009.
Lastly, we turn to the counsel fee award and husband's argument that a different Family Part judge abused his discretion in awarding wife a $3,500 counsel fee in a subsequent order without considering any of the statutory factors and explaining his reasoning. The bulk of the September l0, 2010 transcript dealt with discussions regarding freezing husband's accounts. At the end, the judge advised he was going to reserve decision on the counsel fee issue and requested a certification from wife's attorney, noting he could not "place [his] finger" on it. Husband's attorney made a brief argument against fees, emphasizing there was no dissipation for over nine months and wife did not withdraw her motion.
The court then issued the September 14, 2010 order, which contained a $3,500 counsel fee award to wife and referenced "Reasons on the record (September 10, 2010)." No supplemental memorandum has been provided.
A court may, in its discretion, order one party to pay the legal fees for another party in family actions. R. 4:42-9(a)(1) and R. 5:3-5(c). In determining the amount of the fee award, the court should consider the financial circumstances of the parties, the ability of the parties to pay, the good faith of the parties' positions, the extent of the fees incurred by both parties, any fees previously awarded, the amount of fees previously paid to counsel by each party, the results obtained, the degree to which fees were incurred to enforce orders or compel discovery, and any other factor bearing on the fairness of an award. R. 5:3-5(c). See also Mani v. Mani, 183 N.J. 70, 93-94 (2005).
However, "[t]rial judges are under a duty to make findings of fact and to state reasons in support of their conclusions." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). See also R. 1:7-4(a) (stating the court shall "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right"); Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions."); Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) ("Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." (internal quotation marks and citation omitted)).
As we are unable to detect even an implicit rationale for the counsel fee award and thus have no basis for a meaningful review, we remand to the trial court for a proper analysis and explanation of the statutory factors. See Strahan, supra, 402 N.J. Super. at 310; Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007); Clarke, supra, 359 N.J. Super. at 572. Husband presents no basis to send the matter to a different judge.
The August 31, 2010 order is affirmed. We presume probation has prepared an audit of husband's account as directed in this order. The counsel fee award contained in the September 14, 2010 order is vacated and is remanded to the trial court to make findings of fact and conclusions of law. We do not retain jurisdiction.