On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1386-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2012 -
Before Judges Alvarez and Ostrer.
Defendant Brian Solomon appeals from a June 9, 2011 Family Part order. Among other things, it denied reconsideration of a February 4, 2011 order transferring his motion to reduce child support to the inactive list pending his release from state prison. We affirm that aspect of the order.
Solomon also sought parenting time with the parties' children. He also appeals the Family Part judge's denial of the request because of his imprisonment. For the reasons that follow, we reverse that provision in the order.
Solomon and plaintiff Jennifer Solomon, now known as Rosenzweig, are self-represented. Solomon's seven-year prison term was imposed on October 2, 2009.
When the parties divorced in 2006, defendant worked in a family-owned business. He then agreed to pay $300 per week in child support, and subsequent to entering into that agreement but before his incarceration, was also required to pay $35 per week towards arrears. We cannot determine with certainty from this record if the arrears accrued prior to his termination from his employment, or if the arrears included both child support and alimony. Solomon's current child support order is $326 per week.
Solomon contends the trial court erred by failing to address arrears going back to 2007. N.J.S.A. 2A:17-56.23a, however, prohibits judges from vacating child support arrears which accrue prior to the filing of a motion to modify the support obligation. In other words, the statute bars retroactive modification: "[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification . . . ." Hence, if for no other reason than this, the court's refusal to consider child support going back to 2007 was not error.
Additionally, the motion judge properly transferred Solomon's application to modify ongoing child support to the inactive list, as he was implementing the procedure delineated in Halliwell v. Halliwell, 326 N.J. Super. 442 (App. Div. 1999). In that case, we said: the better practice, in cases where the obligor has been sentenced to a lengthy period of incarceration and has no assets, would be to defer any action on the obligor's motion and to transfer the matter to the inactive calendar pending the obligor's release from the custodial sentence. [Id. at 457.]
Upon an obligor's subsequent application, a motion court can then "easily enter an order retroactive to the date of the obligor's initial motion divisible between current support for the future and an arrearage payment attributable to the period of incarceration subsequent to the date of filing of the obligor's modification motion but based upon the obligor's earning capacity." Id. at 457-58. Therefore, the court's transfer of Solomon's modification motion to the inactive list was not error either.
As to parenting time, however, no consideration was given to the principles, still valid law, enunciated in Fusco v. Fusco, 186 N.J. Super. 321 (App. Div. 1982). In that case, the mother of a five-year-old appealed from an order requiring her to produce the child for two hours of visitation twice monthly with the incarcerated father. Id. at 322. We reversed the trial judge's ruling, made without the benefit of a plenary hearing. Id. at 329. We "underscore[d]" that such "decision[s] require the application of a high degree of care, factual exploration, deliberation and sensitivity to personal and family dynamics and motivation." Id. at 327. They should not be "made on the basis of filed documents consisting of self-serving certifications by the parties." Ibid. In this case, the certifications did not even agree on a point upon which the trial judge relied, that Rosenzweig permits Solomon access and contact with the children via telephone, electronic mail, and ordinary mail. Thus it is essential that the court promptly schedule a plenary hearing, assuming the parties have not already reached a mutually satisfactory agreement on the subject, to address the issue of Solomon's parenting time.
The order is affirmed except as to parenting time. On that question, the matter is remanded for further proceedings consistent with this ...