October 16, 2012
JOSEPH M. SEFACK, SR., PLAINTIFF-RESPONDENT,
KIMBERLY A. SEFACK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1561-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
Before Judges Espinosa and Kennedy.
Defendant appeals from a post-judgment order that fixed the amount plaintiff was required to pay toward child support arrears on a weekly basis and denied her request to incorporate an agreement between the parties into an order. We affirm in part and reverse in part.
The parties agreed to the terms of a property settlement agreement (PSA), dated May 1, 1998, which was incorporated into their Judgment of Divorce (JOD) in September 1999. The PSA provided that plaintiff was required to pay defendant $160 per week in child support for their two children, allocated as $80 per child, until the emancipation of the youngest child. Paragraph 4 of the PSA states:
The Wife shall be entitled to claim Joseph as an exemption in the filing of her federal and state income tax returns and the Husband shall be entitled to claim Michael as an exemption of his federal and state income [tax] returns beginning in the tax year 1997.
The third provision of the PSA relevant to this appeal addressed plaintiff's obligation to provide health insurance coverage for the children. Paragraph 7 states in pertinent part:
The Husband shall continue to provide medical health insurance and cooperate with submission of any claims or obtaining and confirming insurance coverage. . . . The coverage for the children shall continue so long as the Husband is obligated to support the child in accordance with this Agreement.
Plaintiff became delinquent in his child support. In January 2011, the Probation Division sought enforcement of plaintiff's support obligation. An order was entered that reflected plaintiff's arrearage as $9550 as of January 6, 2011, and ordered a garnishment of his unemployment benefits. The order included in the record does not state what amount plaintiff was required to pay for support or toward arrears.
In May 2011, plaintiff filed a motion to decrease his child support obligation on the ground that Joseph was out of school and working full-time. In his motion, he identified his weekly support obligation as $214 per week. He did not indicate what portion of this obligation, if any, was a required payment toward arrears. Indeed, the case information sheet he submitted stated he paid $107 in weekly child support for each child.
Defendant filed a cross-motion, in which she agreed to the emancipation of their older son, and asked the court to retain plaintiff's weekly obligation of $214. In the letter she sent to the court, defendant stated that the weekly support obligation for each child was $87 and asked that the $87 that would have been payable for the emancipated child be applied to plaintiff's arrears, which now was $9686. Defendant also asked the court to modify the provision of the PSA incorporated in the JOD regarding the exemptions for the children so that she could claim her younger son as a dependent child. In her letter to the court, she explained:
[Plaintiff] breached various conditions listed in our decree and a couple of years ago [he] agreed to sign over his rights (Exhibit I) to claim Michael in lieu of providing health insurance coverage that was breached in June 2004 and I would like to have it formally changed.
In support of her request, defendant submitted a signed, notarized statement from plaintiff, dated January 5, 2009:
To Whom It May Concern:
I Joseph Michael Sefack, Sr. hereby relinquish my rights to claim my son Michael Anthony Sefack on my income taxes in lieu of Medical Benefit coverage as agreed to and filed in my divorce decree with my ex wife Kimberly A. Sefack on September 20, 1999 in the Middlesex County Superior Court -Chancery Division: Family Part. Docket No. FM-12-001-561-99-b.
Plaintiff did not oppose defendant's request for this modification.
By order dated May 27, 2011, the trial court granted plaintiff's motions to emancipate Joseph and reduce child support, as well as defendant's motion to increase arrears payments. As to plaintiff's obligation for child support and arrears, the order states, in pertinent part:
Plaintiff's child support obligation is modified to $107 per week, payable through probation, via income withholding, effective October 15, 2010. However, this Court increases Plaintiff's arrears obligation to $50 per week, effective May 27, 2011, the date of this Order.
Because it is unclear from the record whether plaintiff's weekly support obligation was $107 or $87 per child, it is also unclear whether the modification to $107 per week represented an increase or decrease of his support obligation. However, neither party challenges the amount of child support ordered.
Defendant first argues that the court should have increased the amount payable toward arrears more than the ten dollar increase reflected in the order. We disagree.
"[T]he enforcement, collection, modification and extinguishment of unpaid arrearages in alimony and child support payments are matters addressed to the sound discretion of the court." In re Rogiers, 396 N.J. Super. 317, 327 (App. Div. 2007) (quoting Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981)). We will not disturb the court's award, if consistent with the law, "unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (internal quotation marks omitted).
At the time of his motion, plaintiff remained unemployed. He asked for no more than the termination of his obligation for his emancipated son and did not ask for any modification of his obligation to pay toward arrears. The court granted that relief and also partially granted defendant's cross-motion, increasing the amount of the payment toward arrears, although not as much as defendant requested. We discern no abuse of discretion in this award and affirm the court's order in this regard.
Defendant argues that the trial court erred in ordering that the parties alternate claiming Michael as a dependent for tax purposes. We agree.
Although the order states that defendant's cross-motion to claim Michael as a dependent is granted, the order fails to reflect the relief she requested. The order merely recites paragraph 4 of the JOD and then states, "Therefore, the parties shall alternate deducting Michael as a dependent, with Defendant claiming Michael in tax year 2011." The order does not acknowledge the parties' agreement, documented in plaintiff's notarized statement, to modify this term.
"Settlement of litigation ranks high in our public policy." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961)). "'[T]he use of consensual agreements to resolve marital controversies' is particularly favored in divorce matters." Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). As a result, "fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Konzelman, supra, 158 N.J. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).
Here, the parties agreed that, in lieu of providing health benefits to the children, plaintiff waived any right to claim Michael as a dependent on his income tax returns. Plaintiff did not oppose the relief sought by defendant. Defendant was, therefore, entitled to the incorporation of the parties' agreement in the JOD in the absence of circumstances that dictated otherwise. The order entered by the court did not acknowledge the parties' agreement and identified no reasons why it should be disturbed. We therefore vacate the portion of the court's order that provided for the parties to alternate claiming Michael as a dependent.
We affirm the court's order as to the amount payable toward support and arrears. We reverse the order that provides for alternating the exemption for Michael and remand for entry of an order consistent with this opinion.
Affirmed in part and reversed in part.
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