On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1055-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...