July 20, 2012
JOANN E. SISOLAK, F/K/A JOANN E. BROWN, PLAINTIFF-APPELLANT,
JAMES P. BROWN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-0974-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012
Before Judges Messano and Yannotti.
In this post-judgment matrimonial action, plaintiff Joann E. Sisolak, formerly known as Joann E. Brown, appeals from certain provisions of the Family Part's order of November 3, 2011.*fn1 Specifically, plaintiff argues that the judge erred by: closing the probation account that garnished and monitored defendant James P. Brown's child support payments; ordering reimbursement to defendant for certain child care expenses without a plenary hearing; ordering defendant receive credit retroactively for alleged child support overpayments; ordering plaintiff to complete IRS form 8332 on an annual basis; ordering probation to conduct an accounting of all payments defendant made directly to plaintiff after fixing the amount of child support and retroactively closing the account. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
The parties were married on May 14, 1994 and had two children, a son born in 1995 and a daughter born in 1996. A judgment of divorce was entered on September 1, 2010 that incorporated a property settlement agreement (PSA) executed by the parties.
The PSA provided that defendant would pay weekly child support in the amount of $247. That figure was based upon plaintiff's imputed income of $20,000 per year and defendant's 2009 income of $56,000. The payments were to be made "via direct deposit to [plaintiff] in an account of her choosing" and commenced upon plaintiff's re-financing of the marital home, which she retained.
Defendant filed a motion for a downward modification of support on January 28, 2011, and plaintiff cross-moved, seeking among other things, that payments be collected by the probation department through garnishment. On March 18, the judge granted defendant's motion to recalculate child support and ordered plaintiff to submit an "updated Case Information Statement" (CIS) within fourteen days of the order. He further ordered that the re-calculated support amount be effective from January
28. The judge also granted plaintiff's cross-motion and ordered both parties to open an account with the probation department.
Thereafter, on May 17, the judge entered an order reducing the child support to $233 per week, effective January 28, and further ordering probation to garnish defendant's wages when the account was in place. However, plaintiff admits the calculation improperly gave her a credit of $22 per week for providing health insurance instead of properly awarding that credit to defendant. Therefore, the correct support amount should have been $213 per week.
In August, defense counsel supplied probation with an accounting of all direct payments defendant claimed to have made to plaintiff from January 28 through June 17, 2011, the last week before the account was instituted. Because the parties could not agree on the amount directly paid to the plaintiff, a "Direct Pay Hearing" was held with the probation department on August 25, 2011. No agreement was reached, and defendant's garnishment immediately included an amount designated as arrearages.
In September, defendant again filed a motion seeking among other things: the immediate credit of $5131, reflecting the direct payments made to plaintiff from January to June; that probation cease collecting alleged arrears; repayment by plaintiff of "any overpayment of child support" made through the probation account; repayment by plaintiff of any amounts collected as arrears; reimbursement of uncovered dental expenses paid on behalf of the children; reimbursement of $105 representing plaintiff's share of their son's driving school expenses; an order directing plaintiff to file IRS Form 8332 every year so he could claim his son as a "tax exemption"; and counsel fees. In his certification supporting the motion, defendant claimed plaintiff failed to report to probation the direct payments he had made from January to June, resulting in the account being immediately in arrears.
Plaintiff replied by filing a certification detailing the amount of money in dispute and otherwise opposing defendant's request. She also moved for other relief and an award of counsel fees.
Following oral argument, on November 3, 2011, the judge concluded that defendant was entitled to a reduction of his child support to $213, effective January 28, and a credit for any overpayment. Regarding reimbursement for the children's uncovered dental expenses, the judge noted that the parties were jointly responsible under the PSA. He further reasoned that, although the dentist, who the parties had been using for many years, was now "out of network," plaintiff's responsibilities were not altered. With respect to the driving lessons, the judge reasoned that "[t]he common practice these days is in fact for [sixteen] year olds, prior to getting their permit, having to undergo . . . driving instruct[ion], and so that's a necessary expense." He ordered plaintiff to reimburse defendant for these costs.
Regarding IRS Form 8332, the judge simply reasoned there was "no reason not to" require plaintiff to file it annually so that defendant could claim his son as a tax exemption.
Finally, the judge granted defendant's request to resume payments to plaintiff via direct deposit and close the probation department account as of September 29, 2011. The judge ordered that probation first make adjustments according to his ruling, and then conduct an audit of the account. In his written amplification, the judge explained that the PSA required support payments via direct deposit, and that, even though he ordered payments through the probation department, the "exceptional difficulties obtaining a proper accounting . . . warrant[ed] a return" to direct deposit.
This appeal followed.
Generally, the Family Court judge's fact-finding will be binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). In this regard, we owe particular deference because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413. Only upon a showing that the trial court's conclusions are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence" will we intervene to ensure there is not a denial of justice. Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). 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., 140 N.J. 366, 378 (1995).
In considering plaintiff's specific arguments, we conclude that two are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
Plaintiff argues that the judge erred by setting the effective date of the downward child support modification as January 28, 2011, the date defendant first filed his motion. N.J.S.A. 2A:17-56.23a specifically provides that a retroactive modification is prohibited, "except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent." Plaintiff concedes that the original calculation entered in May 2011 was erroneous because of a mistake made by the judge. The fact that the parties continued to disagree over the amount actually paid or owed, resulting in defendant's subsequent motion, is of no moment. Defendant was properly entitled to the downward modification effective from the date he first sought the relief.
Similarly, the judge did not mistakenly exercise his discretion in ordering plaintiff to annually file IRS Form 8332. The PSA provided for defendant to receive the exemption for his son, and it further provided that the "parties shall cooperate to complete any forms necessary to avail themselves of said exemptions from the [IRS]." Plaintiff claims the yearly filing permits her to release her son's exemption to defendant for all future years. However, under the terms of the PSA, when one child is emancipated, the parties' ability to claim an exemption for that child is altered. The form is simple, and the de minimus burden the judge placed on plaintiff to annually furnish it was not a mistaken exercise of his discretion.
Plaintiff also argues the judge erred by ordering her to contribute to the dental and driving school expenses of her children. She contends that the PSA required she receive prior notification of any expenditure for an extraordinary medical expense, and defendant failed to provide adequate notice or establish that the treatment was in response to an emergency. As to the driving school expense, plaintiff claims that under the PSA, the parties were required to mutually agree before the expense was incurred, and she was not consulted. Plaintiff argues the judge was required to hold a plenary hearing on these issues. We disagree.
"[N]ot every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). A court need not hold such a hearing when it "discern[s] no factual dispute for which a plenary hearing would be helpful in reaching resolution." Colca v. Anson, 413 N.J. Super. 405, 422 (App. Div. 2010).
Defendant's certification included an email, dated February 2, 2011, notifying plaintiff of the dental appointment for their children on February 5. Plaintiff responded the same day, informing defendant that he would have to take the children to the appointment because she was unavailable. She did not otherwise object. Dental records show that most of the work for the children was completed on February 5. It is undisputed that the dentist was one the children had seen in the past. A plenary hearing was not necessary under these circumstances.
With respect to the driving lessons, defendant certified that plaintiff was fully aware of the lessons, and plaintiff simply avoided speaking with him regarding the issue.
In plaintiff's certification, she claims that she was not consulted in advance, even if she was thereafter informed. She claimed that the expense was unnecessary given her budget.
Implicit in the judge's decision was a finding that plaintiff had proper notice, and he explicitly concluded the expense was reasonable and necessary. Although the PSA required mutual assent to "extracurricular activities," the judge implicitly concluded that, regardless of whether plaintiff agreed to the lessons, any withholding of her consent was unreasonable. In light of the minor amount involved, this was a rational conclusion and a plenary hearing was entirely unnecessary.
Plaintiff argues that the judge erred by ordering reversion to direct deposit of defendant's child support payments into an account chosen by plaintiff. She contends that defendant could not show good cause or otherwise justify closing the probation account.
N.J.S.A. 2A:17-56.8 provides:
A support provision contained in an order or judgment issued by the court shall be paid by income withholding unless the order or judgment specifically provides for an alternative payment arrangement to which the parties agree in writing or the obligor or obligee demonstrates and the court finds good cause for establishing an alternative arrangement.
See also Rule 5:7-5(b). We have held that "[a]bsent agreement or a finding of good cause for a different arrangement, child support must be paid [through income withholding]." Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290, 308-09 (App. Div. 2007). Rule 5:7-4(b) provides that "[a]limony, maintenance or child support payments not presently administered by the [p]robation [d]ivision shall be so made on application of either party to the court unless the other party, on application to the court, shows good cause to the contrary."
What constitutes "'good cause' . . . must be narrowly construed so as to include only those payors who demonstrate exceptional circumstances." Acorn v. Fair, 208 N.J. Super. 521, 525 (App. Div. 1986). Good cause cannot be established by merely showing "'good faith' compliance with the support order." Id. at 523. We provided some examples:
A payor . . . who because of a physical or other infirmity is unable to obtain a money order or certified check as may be required by the probation office, may have good cause to make direct payment to the payee. It may be good cause to except the payor whose obligation is predicated on a percentage of earnings basis which varies weekly given the problems inherent in such a scheme from a public agency's point of view. Or a payor whose obligation is met through a wage garnishment, the record of which is readily available from the payor's employer, may be exempt from the rule's mandate. [Id. at 525 (emphasis added).]
Here, the parties originally agreed in the PSA to have defendant directly deposit his child support payments into an account chosen by plaintiff. When defendant sought a downward modification, plaintiff sought the establishment of a probation account, as she was entitled to request under Rule 5:7-4(b). The judge initially granted that request.
What ensued, however, can hardly be seen as representative of the policy undergirding the Rule's purpose, i.e., providing an indisputable record of payments by which the parties and the judge can expeditiously resolve any motion. First, the probation department held a hearing to resolve how much defendant had paid by direct deposit. In her certification, plaintiff admits that the disputed amount, prior to the hearing, was $49.*fn2 When probation could not resolve the dispute, defendant was immediately charged with arrearages; plaintiff acknowledged in her certification that the undisputed amount of credit would have resulted "in . . . full satisfaction of any past amounts due."
Thereafter, extended, and, in our view, unnecessary motion practice ensued. The judge found that defendant "experienced exceptional difficulties obtaining a proper accounting through the [p]robation [d]department, warranting a return to the previously negotiated direct deposit payments." Having dealt with the intimate details of this protracted dispute, the judge concluded defendant had demonstrated good cause.
We are convinced that under the circumstances presented, the judge did not err in closing the probation account and ordering defendant to directly deposit his support obligations in an account of plaintiff's choosing, as the parties had previously agreed. We further note that by ordering direct deposit, the judge reasonably believed there would be a "readily available" accounting of defendant's actual payments. Acorn, supra, 208 N.J. Super. at 525. Inexplicably, other than claiming in her brief that "there was some problem with the direct support payment arrangement," plaintiff has failed to demonstrate why the record of payments into her account could not have led to an expeditious resolution of this minor dispute.
Lastly, plaintiff argues that by ordering the probation account closed as of September 29, 2011, the audit conducted by the probation department was "inaccurate" and "caused [plaintiff] to appear to owe more in overpayments than she should." Plaintiff concedes that this point was "not raised below by either party." We refuse to consider it on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting the "well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court"). Plaintiff is free to seek relief in the Family Part if she continues to contend that the amount ordered by the judge is erroneous.
Defendant's request for counsel fees is premature and otherwise fails to comply with Rule 2:11-4. It is denied without prejudice.