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Joanne Diorio v. Louis Diorio


November 29, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1165-97.

Per curiam.


Submitted: October 31, 2012

Before Judges Axelrad and Nugent.

In this post-judgment matrimonial matter, defendant Louis DiOrio appeals the provision of the Family Part's January 19, 2011 order relative to his contributions towards his twin daughters' student loans. We remand.

We have been presented with a sparse record by a self-represented appellant. Plaintiff did not respond and her brief was suppressed. We glean the following primarily from the order under appeal. On March 14, 2008, a Family Part judge ordered defendant to be fifty percent responsible for each of his daughters' college expenses and granted plaintiff a lien against funds due defendant from his mother's estate for his accrued obligation. The current Family Part judge granted defendant's motion for emancipation of his daughters by order of June 2, 2010, retroactive to January 13, 2010, the filing date of the motion. In that order, the judge denied plaintiff's request to continue to pay her $200 per month (presumably the terminated child support amount) toward the Parent Plus loans, and expressly stated, the "loans may not be paid for through child support." The judge, however, permitted plaintiff "to apply for a judgment in the amount of $34,000 against [] Defendant" as he had failed to pay the money he owed despite outstanding court orders. It is unknown whether plaintiff ever obtained a judgment.

By order of August 4, 2010, the judge directed plaintiff to reimburse defendant $4037.34 for child support overpayments, and by order of September l5, 2010, denied plaintiff's motion for reconsideration.

Defendant then filed an enforcement motion on October l5, 2010, returnable November 17, 2010. He did not request oral argument. Plaintiff's attorney wrote to the court requesting an adjournment to December l, 2010. Plaintiff filed a cross-motion seeking, among other things, to have defendant's obligation to pay fifty percent of the student loans characterized as child support. Defendant had informed the court he would be unable to appear for medical reasons. Plaintiff's attorney appeared for oral argument on December l, advised the court his client was satisfied with the tentative disposition, but urged that defendant's obligation for reimbursement of the student loan be designated in the nature of child support. The December 1, 2010 order is not included in our record; however, based on the subsequent order it appears that relief was denied.

Both parties sought reconsideration, and the judge conducted oral argument on January l9, 20ll. In part, defendant claimed he had not received plaintiff's cross-motion, he sought information about who was paying the other fifty percent of the loan as he believed one of his daughters was making payments, and he claimed he had insufficient funds to pay as he only received social security and a pension.

In the January 11, 2011 order, the judge denied defendant's request for reconsideration of paragraphs one, three and five of the prior order without prejudice. She explained the reasons why she found there was sufficient service of the cross-motion. The judge further referenced the March 14, 2008 order, noted it remained in effect and that the current amount due on college education loans was $68,821.39, with defendant owing $34,410.70. To the extent defendant was requesting reconsideration of the March l4, 2008 order, she noted it was untimely. See R. 4:49-2 (requiring a motion to alter or amend an order be served no later than twenty days after service of the order).

The order further provided:

In regards to paragraph one and three of the order, the Court does not find that crediting the Defendant for the Plaintiff's amount due of $4,037.34 or attaching the Metlife pension is incorrect or irrational; rather it is equitable considering the amount Defendant owes to Plaintiff for the student loans due for the college education of the parties' children.

Plaintiff's request to reconsider the December 1, 2010 Court order that Defendant's obligation to contribute to the student loans is not in the nature of support is GRANTED in part. . . . The Court upon review finds that the college contributions can be designated as an arrears amount so that Child Support Probation can establish an account for arrears only. The Court gives Defendant credit for the overpayment and finds that Defendant owes Plaintiff $30,373.36 in college contributions. Therefore, a Child Support Probation account needs to be reestablished . . . to establish the arrears only account. Effective January 19, 20ll the Defendant shall pay $50.00 per week/ $215.00 per month towards the arrears only account, for college contributions, through Probation by wage garnishment. [(Emphasis added]].

Defendant appealed.

To the extent defendant is challenging prior orders requiring him to contribute fifty percent towards his daughters' college education, the authenticity of the loans, or the quantum of his obligation, the judge correctly noted that defendant is woefully out of time. Defendant's concern whether his daughters are contributing towards plaintiff's share is irrelevant to his previously court-ordered support obligation. To the extent defendant is challenging the offset of his child support overpayment against his outstanding college loan obligation, we are satisfied the judge was well within her discretion.

We have held, "the enforcement, collection, modification and extinguishment of unpaid arrearages in alimony and child support payments are matters addressed to the sound discretion of the court." Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. l981). Moreover, "[e]ach case demands careful examination and weighing of all of the essential facts." Ibid.

Rule 1:7-4 states, in pertinent part, that "in all actions tried without a jury, on every motion decided by a written order that is appealable as of right," "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon[.]" The "[f]ailure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (internal quotation marks omitted).

The trial court must clearly state its factual findings and correlate them with relevant legal conclusions, so the parties and appellate courts may be informed of the rationale underlying the conclusion and perform our reviewing function. Monte v. Monte, 212 N.J. Super. 557, 564-65 (App. Div. 1986). "In the absence of reasons, we are left to conjecture as to what the judge may have had in mind." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). Furthermore, such an omission "imparts to the process an air of capriciousness which does little to foster confidence in the judicial system." Twp. of Parsippany-Troy Hills v. Lisbon Contractors, Inc., 303 N.J. Super. 362, 367 (App. Div. 1997).

The Family Part judge's ruling that defendant's college loan repayment obligation can be retroactively characterized as child support following emancipation and paid through Probation by wage garnishment may very well be supported by the case law. This is a discretionary decision based on a careful weighing of the facts and circumstances of the case. Nevertheless, the judge should have explained her reasoning for reversing her two previous rulings on the identical issue. Consequently, we remand that portion of the January 19, 20ll order authorizing defendant's repayment of his college loan obligation as a support obligation through wage garnishment to the Family Part judge for re-determination on the record. The trial court should make findings and conclusions as required by Rule 1:7-4. The court shall act within forty-five days.

Remanded consistent with this opinion. We do not retain jurisdiction.


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