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Marie A. Rivera v. Angel D. Rivera

January 7, 2013

MARIE A. RIVERA, PLAINTIFF-APPELLANT,
v.
ANGEL D. RIVERA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-387-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2012

Before Judges Fasciale and Maven.

Plaintiff Marie A. Rivera*fn1 appeals from the September 7, 2011 Family Part order vacating, among other things, a certain money judgment entered in her favor and against defendant. Following our review, we conclude that the motion judge did not render appropriate findings of fact and conclusions of law. We remand the matter for additional proceedings consistent with this opinion.

Because the post-judgment motion practice between these parties has been extensive, only a summary of the relevant facts and orders follows.*fn2 The parties divorced on December 22, 2004, after more than fourteen years of marriage. The Dual Final Judgment of Divorce awarded defendant residential custody of their minor children, A.R. and N.R., then fourteen and seventeen-years-old, respectively. Plaintiff was obligated to pay child support, and the parties stipulated that college contributions would be paid proportionate to their respective incomes and assets after the college accounts for each child were exhausted. Regarding equitable distribution, plaintiff was entitled to receive, among other things, a portion of defendant's pension.*fn3

Subsequent to the divorce, plaintiff was found to be non- compliant with her support obligations resulting in her equitable distribution monies being held in escrow for the payment of child support.

Defendant continuously failed to pay plaintiff her portion of the pension fund pursuant to the 2005 QDRO. In an August 10, 2007 order, Judge Thomas Dilts, recognizing that it was the third court order mandating defendant's compliance, ruled that "if [defendant] does not comply or provide proof of compliance with regard to the $5699.52 owed Ms. Castelli not later than August 30, 2007[,] sanctions shall be imposed of $100 per day for each day thereafter that same not complied with." Defendant also was ordered to comply with prior orders that required him to provide certain Fidelity Investments (Fidelity) account information to Ms. Castelli in order to quantify the amount to be distributed and to prepare a QDRO for this distribution by August 30, 2007. That provision was also subject to a $100 per day sanction if defendant did not comply.

Plaintiff filed a motion seeking compliance with the August 2007 order and emancipation of the parties' oldest child, N.R. On April 11, 2008, Judge Dilts decided the unopposed motion. In relevant part, the judge found defendant in violation of litigant's rights for failing to comply with the December 16, 2005 QDRO, as well as the April 5, 2007 and August 10, 2007 orders requiring payment of the pension monies and financial disclosure of the Fidelity account. Judgment was entered against defendant and in favor of plaintiff in the amount of $30,099.52, which represented plaintiff's equitable distribution of defendant's pension pursuant to the December 16, 2005 QDRO, ($5699.52), plus accumulated sanctions since August 7, 2007. Defendant was again directed to provide plaintiff the Fidelity account statement, showing its balance as of October 2003 -- the date of the divorce complaint. The Court ruled that [i]f he does not do so by May 11, 2008, then a judgment shall be entered against him and in favor of Ms. Castelli in the amount of $102,100, upon application by Ms. Castelli. The court finds that this sum represents $80,000 (what Ms. Castelli alleges she is owed from this account) plus interest in the amount of $100 per day since August 30, 2007.

Plaintiff's request to emancipate N.R. was granted and her child support obligation was reduced from $585 to $300 monthly. On June 20, 2008, the court considered defendant's motion for reconsideration and plaintiff's cross-motion. At defendant's request, the order emancipating N.R. was vacated due to proof that the child was still in school. Child support was increased to $585 per month. Defendant's request for college contribution from plaintiff was denied but subject to reconsideration upon proof of the exhaustion of N.R.'s college fund account and the filing of a subsequent motion. Paragraph three of the April 2008 order, which required defendant to provide plaintiff with the Fidelity account statements, was vacated upon defendant informing the court that plaintiff's escrow account had already received a deposit of $15,113.61, one-half of the balance in that account. Lastly, the court stayed enforcement "on all prior orders until September 30, 2008 to give [defendant] the opportunity to file a Rule 4:50 motion." Plaintiff's substantive requests were denied.

The last order relevant to this appeal was entered on August 20, 2008, in response to a motion for reconsideration of the June 2008 order that plaintiff filed and defendant's cross- motion. The court found that plaintiff presented information sufficient to support her claim that the court erred in vacating paragraph three of the April 2008 order, which required defendant to provide Fidelity account statements or be subject to a Judgment. She asserted that defendant and the court mistakenly confused two accounts, the Fidelity account and a TD Waterhouse account, from which defendant improperly received $15,113.61 pursuant to a September 2006 order.*fn4 The court found:

Ms. Castelli has provided sufficient proof that the $15,113.61 deposited into the escrow account was from the TD Waterhouse account. . . . Additionally, her [e]xhibit established that Mr. Rivera was also issued a check for $15,113.61 from the TD

Waterhouse account. Therefore, Ms. Castelli's request to reconsider paragraph[s] 4 and 5 of the June 20, 2008 order is hereby granted.

The court finds that Mr. Rivera was improperly awarded half of Ms. Castelli's share of the TD Waterhouse [account] in the amount of $7,556.80 pursuant to the September 22, 2006 order. Therefore, the court finds that Ms. Castelli shall receive a credit toward her obligation to pay college expenses . . . of $7,556.80. As to paragraphs 4 and 5 of the June 20, 2008 order, the court finds that these paragraphs shall be vacated and paragraph 3 of the April 11, 2008 order shall be reinstated and amended to read as follows: "Mr. Rivera shall immediately provide Ms. Castelli with a bank statement for his 401K Fidelity account showing the value as of October 2003, the time of filing of the divorce complaint, so that her portion can be determined. The court finds that Ms. Castelli shall receive a credit toward her contribution to college expenses for the amount of her portion of the Fidelity account."

The court finds that this reinstatement of paragraph 3 of the April 11, 2008 [order], shall be subject to Mr. Rivera's anticipated filing of a Rule 4:50 motion for relief from the April 11, 2008 order. If Mr. Rivera does not provide Ms. Castelli with the Fidelity account statement by September 30, 2008 (or if he does not file a Rule 4:50 motion pursuant to paragraph 9 of the April 11, 2008 order), then Ms. Castelli shall receive a credit toward her obligation to contribute toward college expenses in the amount of $102,100. The court finds that this sum represents $80,000 (what Ms. Castelli alleges she is owed from the Fidelity account) plus interest in the amount of $100 per day since August 30, 2007. This is the amount set forth in the April 11, 2008 order. After all college expenses are paid for, then Ms. Castelli shall receive a judgment for any remaining monies owed her upon application to the court.

The court finds that Mr. Rivera has not established that Ms. Castelli was awarded her portion of his Fidelity account or that her portion was deposited into the escrow account.

[(Emphasis added).]

Lastly, the court ordered a plenary hearing on the issue of the parties' contributions to the children's college expenses to be held on or after November 1, 2008.

In her appellate appendix, plaintiff includes a copy of a motion for reconsideration of the August 20, 2008 order and a motion for relief from college contributions for the two children. It is not clear, however, if the motions were actually filed and, if so, whether the trial court ever addressed these motions. On or about December 2, 2008, defendant withdrew his earlier request for college contributions. As a result, the plenary hearing was not held.*fn5

In November 2008, plaintiff received a Writ of Execution for the amount of $30,992.52*fn6 securing Judgment J146375, pursuant to the April 11, 2008 order.

On April 27, 2011, the trial court entertained cross- motions, where plaintiff sought, among other things, the emancipation of the two children and enforcement of prior orders, and defendant sought to vacate the April 11, 2008 Judgment order.*fn7 Plaintiff participated telephonically from Egypt and defendant appeared by counsel. The court denied the emancipation but established the date when emancipation would occur for both children upon their graduation. The judge also vacated and discharged the April 11, 2008 Judgment. On appeal, plaintiff contends that the court erred by failing to address the Newburgh*fn8 factors regarding ...


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