November 22, 2013
CORA-LEE HABER, Plaintiff-Respondent,
DAVID HABER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-11754-89.
Weiner Lesniak, LLP, attorneys for appellant (Joseph M. Freda, III, on the brief).
Fox Rothschild LLP, attorneys for respondent (Jennifer Weisberg Millner, of counsel and on the brief; Eliana T. Baer, on the brief).
Before Judges Sapp-Peterson, Lihotz and Hoffman.
In this post-judgment matrimonial action, defendant David Haber appeals from that part of Judge Paul X. Escandon's May 24, 2011 order directing him to pay plaintiff $410, 097.54 in spousal and child support arrears, including interest, and imposing a trust to secure his future support obligations. We affirm.
The parties were married in 1971. Three children were born of the union. They separated in 1988, with the children remaining in plaintiff's custody and defendant eventually moving to California. Because defendant failed to appear, a default final judgment of divorce (FJOD) was entered against him on January 16, 1991. The FJOD established defendant's obligations for child support, alimony, equitable distribution and arrearages. Haber v. Haber, 253 N.J.Super. 413, 415 (App. Div. 1992). After his unsuccessful appeal of the entry of default judgment, the parties became embroiled in post-judgment proceedings which, at times, were bi-coastal despite the fact that the FJOD was issued in New Jersey and plaintiff and their children continued to reside in this state. The nature and results of those proceedings were detailed in our unpublished decision issued last year and need not be repeated here. Haber v. Haber, No. A-0828-10 (App. Div. Mar. 8), certif. denied, 210 N.J. 479 (2012).
The May 24, 2011 order under appeal represents the final resolution of proceedings held on or conducted on January 18, 2011, related to a September 14, 2010 order where, among other relief granted to plaintiff, the court froze certain of defendant's investment assets. Although an audit of defendant's probation account was pending at the time the September 14 order was entered, the order froze $750, 000 of defendant's assets and directed defendant to pay $3500 in counsel fees to plaintiff. On October 15, 2010, defendant filed an order to show cause to determine which of his accounts were to remain frozen. The court converted the matter into a regular calendar motion and plaintiff cross-moved for further enforcement relief.
The court conducted oral argument on December 3, 2010, and subsequently conducted a telephone conference during which the court requested that the parties submit additional information. Defendant, however, failed to do so. On January 18, 2011, the court entered an order denying defendant's motion in its entirety and granting plaintiff's motion:
(1) Defendant's Motion is hereby DENIED.
a. Defendant's request that any and all Orders temporarily enjoining or restraining the transferring, gifting, drawing upon or otherwise disposing or dissipating of the funds within Defendant's bank accounts shall be vacated is DENIED.
b. Defendant's request that the freezes currently in place on the following accounts shall be lifted and the Defendant shall be permitted to transfer or utilize these accounts, without limitation or restriction, moving forward is DENIED.
c. Defendant's request that the court make a final determination that the arrearages due and owing as of
September 20, 2010 total $284, 050.89 is DENIED.
(2) Plaintiff's Cross Motion is hereby GRANTED.
a. Plaintiff's request that Defendant's Motion shall be denied is GRANTED.
b. Plaintiff's request that trust device shall be imposed on the remaining frozen assets in Defendant's accounts to secure Defendant's support obligations is GRANTED.
c. Plaintiff's request that any levies on assets of the Defendant are hereby continued until such time as all judgments in favor of the Plaintiff are satisfied is GRANTED.
d. Plaintiff's request for counsel fees is GRANTED. Defendant shall pay $1, 000 to Plaintiff's counsel within thirty (30) days of the date of this Order.
(3) IT IS FURTHER ORDERED that Pershing LLC shall immediately release to Plaintiff $286, 026.89, plus interest from the amounts that are currently frozen pursuant to the Court Order of September 14, 2010, which represents the current amount of arrears due and owing, following the Probation Audit.
(4) IT IS FURTHER ORDERED that Judgment of $9, 033.74 for unreimbursed medical expenses has not been satisfied and remains in full force and effect, together with interest, pursuant to the N.J. [R]ules of Court. As such, Pershing LLC shall immediately release to Plaintiff $9, 033.74, plus interest, from the amounts that are currently frozen pursuant to the Court Order of September 14, 2010.
Following the entry of the January 18, 2011 order, defendant filed an emergent application before this court describing the nature of the emergency as follows:
Pursuant to the January 18, 2011 Court Order, the Trial Court ordered the release of $286, 026.89 (plus interest) to the Plaintiff, ordered that the sum of $9, 033.74 for unreimbursed medical expenses (plus interest) be released to the Plaintiff, that the Defendant's only liquid assets remain frozen, and that a trust device be imposed on the Defendant's remaining assets to secure Defendant's support obligations.
As these are the Defendant's only liquid assets, and as the Defendant relies upon same to support himself and his current wife, the Trial Court's failure to lif[t] the freeze on these assets, and to impose a trust device on these assets to secure future support obligations, leaves the Defendant without the ability to support his family or meet any of his financial obligations.
Additionally, as the Trial Court required that these monies be immediately provided to the Plaintiff, there is a distinct possibility that if Defendant is successful in connection with his underlying appeal, and should the January 18, 2011 Order not be set aside, that he will be unable to secure the return of these monies from the Plaintiff. As this sum represents well over 25% of the Defendant's available liquid assets, to which the Defendant obtained post-compliant, such a Court Order is completely inequitable, especially given the pending appeal in this matter and the history of this matter.
We denied the stay pending disposition of the appeal that was then pending under Docket No. A-0828-10.
Although plaintiff's counsel submitted a proposed form of order pursuant to the court's January 18, 2011 order, defendant objected to the order. Ultimately, the court resolved the disputes surrounding the form of the order by issuing its March 7, 2011 order in which it directed that $403, 319.82 of defendant's $750, 000 in frozen assets be released to plaintiff. Because the court thereafter acknowledged that there had been mathematical errors in the calculations, it issued the May 24, 2011 order under appeal. The relief granted to plaintiff in that order included the immediate release to her the "total amount of $410, 097.54, representing arrears due and owing to plaintiff, including interest, for spousal support, child support and unreimbursed medical expenses." The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT COMMIT[T]ED HARMFUL ERROR BY RESTRAINING AND AWARDING INTEREST ON A JUDGMENT WHICH WAS DISCHARGED IN BANKRUPTCY AND PREVIOUSLY VACATED IN CONNECTION WITH A JULY 24, 1992 COURT ORDER.
THE TRIAL COURT COMMIT[T]ED HARMFUL ERROR AND ABUSED ITS DISCRETION BY REQUIRING $250, 000.00 BE HELD IN TRUST TO SECURE DEFENDANT'S ALIMONY OBLIGATION MOVING FORWARD.
We have considered the points raised in light of the extensive record, arguments advanced in the briefs and the applicable legal principles. We are satisfied the points raised are without sufficient merit to warrant extensive comment in a written opinion. R. 2:11-3(e)(1).
At the outset, as plaintiff observes, the May 24, 2011 order under appeal makes no reference to "reinstating and awarding interest on a judgment which was discharged in bankruptcy and previously vacated in the connection with a July 24, 1992 order." Rather, the May 24, 2011 order represents the court's settling of the form of order emerging from the January 18, 2011 proceedings and order, for which the parties could not reach an agreement as to its final form.
In that proceeding, the court addressed defendant's claim that $9, 033.74 for unreimbursed medical expenses awarded to plaintiff as part of the FJOD had been discharged in bankruptcy. We are satisfied that to the extent the $410, 097.54 referenced in paragraph three of the May 24, 2011 order includes the $9, 033.74 in unreimbursed medical expenses, defendant is not precluded from challenging the court's determination. That said, defendant's claim nonetheless lacks merit.
The bankruptcy petition, which defendant neglected to include in his appendix, but was provided in plaintiff's appendix, makes no reference to the $9, 033.74 obligation. Rather, it lists one marital obligation, $36, 500, which defendant describes in the petition as a 1991 "marital property judgment." Moreover, 11 U.S.C.A. 523 (a)(5), in effect at the time defendant filed his bankruptcy petition in May 1991, four months after the court entered the FJOD exempted from discharge under the Bankruptcy Code, a debt, existing at the time of petition, which was in the nature of support "in connection with a . . . divorce decree." Ibid.
Defendant does not dispute the nature of the debt, nor that it was reduced to judgment in the FJOD and denominated as support. Further, in the court's January 16, 1991 oral decision granting plaintiff a default FJOD, the court specifically addressed the serious medical and emotional problems, which "require[d] special attention, including the discovery of a rare chorodoma tumor in one child, requiring three surgeries between April 1989 and November 1989; orthopedic problems in another child, who was diagnosed with scoliosis, and the asthmatic and severe emotional problems suffered by the third child."
Additionally, the July 24, 1992 order, upon which defendant relies to urge that the $9, 033.74 was vacated, only addressed plaintiff's cross-motion. In that cross-motion, plaintiff sought an order directing defendant, within ten days, to pay the unreimbursed medical expenses, which had been reduced to a judgment in the FJOD. The court denied the relief sought. In contrast, the court expressly vacated "[a]ny and all arrearages accruing since April 1992 based on the difference between $900 per week." Thus, had the court intended its denial of relief to plaintiff to be anything more than denying plaintiff's attempt to compel defendant to satisfy the judgment within ten days, it would have so stated.
Finally, in Point II, defendant urges that the portion of the May 24, 2011 order directing that "$250, 000 shall be held in trust to secure the [d]efendant's support obligations" "is so manifestly unsupported by the competent evidence that it offends the interests of justice . . . and must be set aside." We first look to the procedural posture of this claim.
In the Notice of Appeal, defendant states that he is appealing "Paragraph three (3) requiring Pershing LLC to release the total amount of $410, 097.54." Defendant failed to subsequently file an amended Notice of Appeal. "The general rule has been stated to be that on appeal from only part of a judgment the scope of appellate review is ordinarily limited to that part and does not extend to the part not appealed from." Kerney v. Kerney, 81 N.J.Super. 278, 281 (App. Div. 1963) (citing 5 Am. Jur.2d, § 724, p. 167 (1962), and cases therein). Nonetheless, we briefly address the merits of this contention.
In the Statement of Reasons appended to the court's January 18, 2011 order, which thereafter resulted in the issuance of the May 24, 2011 order under appeal, Judge Escandon stated:
The court is most compelled by the fact that notwithstanding any interest or other judgments, the Probation Department calculated an arrearage amount of approximately $285, 000. As such, the Court is not convinced that absent a trust device, Defendant will make timely payments of his support obligation, as he has clearly failed to do so in the past, and continues to do so to date. Defendant has not made any payments to Plaintiff since the Probation audit was completed. In September, this Court did not freeze the entirety of Defendant's assets, but froze a significant amount of assets, based on the following: the results of the Probation audit were unknown, Defendant has a history of failing to pay his support, and the Court was not entirely clear on the amounts claimed to be owed to Plaintiff. At the present time, it is clear that Defendant does not intend to make timely payments, and that Defendant owes Plaintiff at least $400, 000, inclusive of interest.
Because of their expertise, we generally defer to a Family Part judge's factual findings and conclusions of law, which will only be disturbed if they are manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence. Cesare v. Cesare, 154 N.J. 394, 411–13 (1998); Crespo v. Crespo, 395 N.J.Super. 190, 193–94 (App. Div. 2007). The record completely supports Judge Escandon's findings that defendant has demonstrated no intent to make timely support payments. In its 1991 oral decision granting plaintiff a default FJOD, the court, at the outset states: "The defendant Mr. Haber for months has not been responding to orders of the [court], has been in California, [and] has not been paying support as ordered." Subsequent orders continued to reflect defendant's failure to comply with his support obligations. Thus, based upon his more than twenty-year record of attempting to avoid support obligations, it would have been manifestly unjust not to have imposed the trust. Therefore, Judge Escandon did not abuse his discretion in doing so.