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Donna Suriano v. Christopher Pennetta


July 19, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1055-09.

Per curiam.


Submitted February 29, 2012

Before Judges Sapp-Peterson and Ostrer.

Defendant, Christopher Pennetta, appeals from the June 8, 2010 order*fn1 finding that he willfully failed to pay child support, ordering him incarcerated or, in lieu thereof, to wear an ankle bracelet and post $5000 towards child support arrearages. We reverse and remand for an ability-to-pay hearing.

On appeal, defendant claims that prior to the June 8 hearing, there had been several hearings during which he was "never . . . allowed to present appropriate evidence" of his ability to pay. Defendant contends the court conducted an ex parte hearing on June 4, 2010, during which plaintiff was permitted to testify "regarding [his] income and [his] medical condition[,]" that neither he nor his attorney had notice of the proceeding, and that an order of enforcement was issued as a result of this ex parte proceeding. Defendant additionally contends the court conducted another hearing on June 8, 2010, at which time the court would not allow him to testify as to his ability to pay, told him that he was not credible as to his medical condition, and accused him of wearing nice clothes.

We have considered the points raised in light of the record and applicable legal principles, and with the exception of defendant's contention that he was not permitted to testify at the June 8, 2010 proceeding, with which we agree, all of the remaining arguments advanced are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A summary of the procedural history of this litigation leading up to the June 8, 2010 proceeding is necessary. The parties were never married but together have one child, Z.P., born in 1991. On September 22, 1997, the court entered an order directing defendant to pay ninety-four dollars in weekly support. Since that time, defendant has made numerous applications to the court related to his child support obligations. One of the more recent orders was entered on May 28, 2010. Pertinent to the disposition of the present appeal are the following provisions contained in that order:

1. Defendant's application to vacate the initial [o]rder of the [c]court (September 22, 1997) setting forth the support amount the defendant was to pay to the plaintiff is hereby DENIED.

N.J.S.A. 2A:17-56.23a prohibits the court from retroactively reducing defendant's child support obligation. Defendant argues that the first child support order entered in 1997 is invalid because there was no finding of paternity nor [o]rder of [a]ffiliation entered. The court rejects that argument. Defendant participated in several subsequent proceedings in 1999 concerning support for this child. He did not at that time challenge paternity or the authority of the court to have ordered child support. A request to do so now is barred by the doctrines of laches and estoppel. Laches is an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other parents so that it would be inequitable to enforce the right. Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 182 (1988). The key ingredients are knowledge and delay by one party and change of position by the other. See Allstate Ins. Co. v. Howard Sav. Inst., 127 N.J. Super. 479, 489-90 (Ch. Div. 1974). The doctrine of equitable estoppel is defined as "the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse[.]" W.V. Pangborne & Co. v. New Jersey Dept. of Transp., 116 N.J. 543, 553 (1989). Furthermore, genetic testing was performed in 2009 and paternity was confirmed.

Defendant did not disclose in his motion papers that Judge Lisa Firko A. entered an [o]rder in October 2009 denying his motion to vacate child support arrearages and establishing support at $94.00 per week, as well as an [o]rder dated January 27, 2010, denying his motion for reconsideration. No appeal was filed of either of those orders. Defendant's action in bringing a new motion before a different judge for essentially the same relief, without having filed an appeal and without disclosing the prior orders, was improper.

2. Defendant's application to have the court (i) recalculate the child support amount based upon the [c]hild [s]upport guidelines at the time of entry of the [o]rder, (ii) recalculate the defendant's other support obligations at the time of entry of the [o]rder,

(iii) determine that the original support order was entered in error predicated upon an ex parte application without notice to the defendant, and

(iv) determine that the original support order was entered without determination of an [o]rder of

[p]arentage or [a]ffiliation is hereby DENIED. See explanation following paragraph 1 of this [o]rder.

3. Defendant's application to adjust the support to be paid to plaintiff herein upon the occurrence of the second support [o]rder (which occurred in the Superior Court of New Jersey in Hudson County) is here DENIED. See explanation following paragraph 1 of this [o]rder.

4. Defendant's application to vacate all prior [o]rders of the [c]court that adjudicate defendant herein to be in contempt of [c]court is hereby DENIED. Having denied defendant's application to vacate the initial support [o]rder, there is no basis to vacate findings of contempt or violation of that [o]rder or previously entered modifications of it.

5. Defendant's application to vacate the prior [o]rder of the [c]court placing defendant on a two-week warrant status is hereby DENIED.

6. Defendant's application to impute income to plaintiff is MOOT. Child support was calculated by another judge of this court in October 2009, based on information presented to that court at that time by both parties. Defendant was present in court on that date. A review of the record of that proceeding revealed that the Hon. Lisa A. Firko, J.S.C., conducted a detailed evaluation of the parties' circumstances to determine support. The inquiry addressed medical insurance costs, parents' obligations for other dependents, work and earning histories of the parties, existence of other support obligations, [Z.P.]'s living arrangements while attending school, etc. The court imputed $25,000 income to plaintiff, and $20,800.00 to defendant -- the lowest Department of Labor wage she identified for carpenters. Judge A. Firko reduced defendant's obligation from the $147.00 per week ordered in July 2009 to $94.00 per week.

Defendant has not shown a change of circumstances since that date, and he is therefore not entitled to have the support amount reviewed. (In fact, the low imputed income was based in part on the pending Disability application, which was subsequently denied and is now on appeal.)

9. Defendant's application to determine that defendant is unemployable, thereby reducing his present child support obligation to a minimal amount pursuant to the Child Support Guidelines is hereby DENIED, without prejudice. Defendant's application for Social Security Disability was denied and an appeal is pending.

Defendant did not timely appeal this order. Nor did defendant seek leave to appeal this order out of time. R. 2:4-1(a).

The next proceeding related to child support occurred on June 4. This proceeding was the rescheduled date to consider plaintiff's motion to enforce litigant's rights, as it was previously scheduled to be heard on May 21, 2010. Plaintiff appeared, but there was no appearance by defendant or his attorney. The court, apparently aware that defense counsel had been ill and had only recently returned to work, adjourned the proceeding. The court briefly engaged in colloquy with plaintiff about the adjournment, listened to plaintiff's complaints, and tried to explain what could happen in the future proceeding. Contrary to defendant's allegations in this appeal, however, the court did not hold a hearing or make any findings on the merits regarding plaintiff's enforcement action.

When the matter was before the court on June 8, 2010, all parties appeared, and defendant appeared with counsel. Probation Officer Kelly Weiss reported that defendant last paid support on November 17, 2008, to which defense counsel responded, "[t]that was about the last time [defendant] was gainfully employed[.]" Defense counsel presented a note from defendant's doctor that outlined defendant's ailments. Counsel had previously presented that same note to Judge Firko as part of defendant's motion to reconsider the October 2009 order denying his motion to vacate child support arrearages, as well as the prior order establishing support at ninety-four dollars per week. The court noted that defendant's Social Security disability (SSD) application had been denied. Defendant presented nothing in the form of any updated medical reports, although he was aware from proceedings conducted earlier in the year before Judge Firko that more than a doctor's note would be required before the court would consider whether defendant was disabled.

Counsel then reported that defendant was receiving assistance from Bergen County Social Services, to which the court remarked, "[t]that doesn't mean . . . he can't work." The court noted that defendant had paid "absolutely not a dollar in child support - - substantially, it's a finding of willful non-payment, though he has the ability to pay something."

The court reasoned it was "unacceptable" that defendant had paid absolutely nothing towards child support and presented the court with a "two-sentence report from December 22nd of 2009, wherein, let's see, January, February, March, April, May, June, from -- we're almost in the sixth month, and he's gotten nothing more than two sentences, which is probably why you were denied from your SSD." The present appeal followed.

The scope of appellate review of the Family Part's fact-finding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998).

"We grant substantial deference to a trial court's findings of fact 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.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. Settled principles provide that we will reverse only when our review unearths findings that "'are so wholly un-supportable as to result in a denial of justice[.]'" Colca v. Anson, 413 N.J. Super. 405, 413 (App. Div. 2010) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). On the other hand, "a [motion] court's 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Guided by these principles, the record does not support our according deference to the motion judge's findings here. Defendant was represented by counsel. Counsel did not specifically request that defendant be given an opportunity to testify. Defendant filed opposition to plaintiff's enforcement motion. His opposition submission included his certification, documents related to his SSD application, and a doctor's note detailing his medical condition. While the court took no testimony from defendant, the issue before the court was defendant's contention that he was unable to work and therefore had no ability to pay. His attorney pointed out that although his SSD application had been denied, it was under appeal, and defendant was receiving benefits from Bergen County Social Services, a fact which the court rejected during colloquy as a basis for concluding that defendant was unable to work.

Plaintiff told the court that defendant had a contracting business, and the court, based upon its observations of defendant, concluded defendant looked healthy and was wearing nice clothes and jewelry. The court ultimately found defendant's failure to have paid absolutely no child support for a lengthy period of time constituted a willful failure to pay child support. The decision, however, was unaccompanied by specific findings of fact as to how the court reached that decision. Although it may be inferred, from the colloquy between defendant's attorney and the court, that the court was not persuaded defendant had no ability to pay child support, a judge's colloquy during a motion hearing is not a substitute for the judge's obligation to articulate findings of fact and conclusions of law. Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006) (rejecting "the suggestion that a judge's comment or question in a colloquy can provide the reasoning for an opinion which requires findings of fact and conclusions of law").

Moreover, there was some evidence in the record that defendant was using a breathing machine. Defendant also presented a doctor's note, although no medical reports accompanied the note. Plaintiff told the court defendant owned a contracting business. Defendant denied this contention. In short, the parties' submissions created material factual disputes as to defendant's ability to pay that warranted a testimonial hearing on this issue. Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968). When material facts are in dispute, fact-finding presumes that the parties have had the opportunity to testify and cross-examine. Ibid.

We reverse the June 8, 2010 order and remand for an ability-to-pay hearing, followed by findings of fact and conclusions of law pursuant to Rule 1:7-4.

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