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Cora Lee Haber v. David Haber

March 8, 2012

CORA LEE HABER, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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.

II.

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 ...


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