DINA ENGLARD v. ALEX ENGLARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6066-04T36066-04T3

DINA ENGLARD,

Plaintiff-Appellant,

v.

ALEX ENGLARD,

Defendant-Respondent.

________________________________________________

 

Argued June 13, 2006 - Decided July 13, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Middlesex County, Docket No. FM-12-2509-00.

Daniel N. Epstein argued the cause for

appellant (Epstein Arlen & Raia, attorneys;

Mr. Epstein, of counsel and on the brief).

Laurie L. Newmark argued the cause for

respondent (Cutler, Simeone, Townsend, Tomaio

& Newmark, attorneys; Ms. Newmark, of counsel;

Ms. Newmark and Andrew J. Economos, on the

brief).

PER CURIAM

Plaintiff, Dina Englard, appeals from a post-judgment order entered on June 24, 2005, denying her motion to "adjudicate defendant in violation of litigant's rights for failure to pay the sum of $650.00 per month for child support," adjudicating that pursuant to paragraph 10 of the parties' Property Settlement Agreement ("PSA") of October 2000, defendant was "obligated to pay the sum of $300.00 per month in child support" and requiring arbitration of "any future adjustments . . . through arbitration before Rabbi Elazar M. T[ei]tz." Plaintiff further appeals from that portion of the June 24, 2005 order which denies her application "to adjudicate defendant in violation of litigant's rights for failure to pay the sum of $100.00 per month for medical insurance" for their son, Elliot, and "capp[ing]" his obligation at "$100.00 per month." Consistent therewith, plaintiff also appeals from paragraph 4 of an order of July 22, 2005 requiring her to "provide to defendant an accounting of the monthly medical insurance costs for Elliot since plaintiff's employment."

Plaintiff argues that the lower court erred by:

(1) refusing to enforce the parties' oral agreement to increase the child support from $300 per month to $650 per month,"

(2) "by refusing to enforce the parties' [PSA] as to the health insurance premiums," (3) "by refusing to find defendant in violation of litigant's rights for failing to pay $650 per month in support," (4) "by refusing to require defendant to pay attorney's fees and costs expended during the mother's motion to enforce litigant's rights," (5) "by refusing to accommodate the request of counsel to be heard telephonically and by refusing to accommodate counsel to hear the motion on the next available return date," (6) by "failing to order a plenary hearing on any issues contained in the parties' certifications determined by the court to be material and inconsistent," and (7) "requiring the mother to provide the father with an accounting of monthly medical costs for [Elliot] from the time of her employment, without making any findings that this accounting was relevant in light of the parties' oral agreement." We remand for further proceedings.

The parties were divorced on January 26, 2001. Their PSA was incorporated into the Judgment of Divorce. The relevant portions of the Agreement provide:

(10) The Husband agrees to pay to the Wife as and for child support for their Child the sum of Three Hundred Dollars ($300.00) per month on the first day of each month, effective immediately, until said Child reaches the age of 21 or is permanently not living with the Mother. Attendance at camp, boarding school or college shall not be considered not living with the Mother. In October 2003, the parties shall submit to the arbitration of Rabbi Elazar M. Teitz of Elizabeth, New Jersey, to determine what adjustment, if any, shall be made to the monthly amount, and to determine the date and procedure for future adjustment.

. . . .

(13) The Father shall pay the premium for the Child's health insurance under New Jersey Kids' Care. In the event that the Mother is employed and is able to add the Child to her health insurance for a fee, said fee shall be paid by the Father in an amount not to exceed $100 per month, provided that said insurance is superior to that of New Jersey Kids' Care. In the event that the parties cannot agree as to the superiority of the plan, said determination shall be made by Rabbi Elazar M. Teitz.

The Family Part denied plaintiff's application for the increased support of $650 per month, "without prejudice, for failure to provide a copy of the Order or Judgment to be enforced as required by R. 5:5-4(a)" and for health insurance payments because "[p]laintiff failed to present any information to support her claim to receipt of the $100.00 per month for health insurance for Elliot in accordance with Property Settlement Agreement." According to the judge's oral opinion of June 24, 2005:

In this particular case, there is no proof provided by plaintiff with respect to any agreement to pay $650 per month. There was no order or agreement that could be enforceable by the Court. Paragraph Ten of the property settlement agreement that was dated October 2000, obligated the defendant to pay $300 per month in child support, and the parties agreed that any future adjustments would be determined through arbitration before Rabbi [Teitz].

The parties did not participate in arbitration, and although plaintiff alleges the parties agreed to increase child support, plaintiff provided no evidence to support her claim of the alleged agreement. And, more importantly, the parties did not go to arbitration to substantiate the amount of child support.

Thus, defendant is obligated to pay the sum of $300 per month pursuant to the property settlement agreement. To the extent there are any arrears accruing as a result of the failure of the defendant to abide by Paragraph Ten of the property settlement agreement, defendant shall immediately bring current -- any child support arrears.

. . . [P]laintiff's motion to hold defendant in violation of her rights for failure to pay the $100 per month for medical insurance for the child is denied. Paragraph 13 of the property settlement agreement specifies the defendant's obligation to pay medical coverage for the child is capped at $100 per month, and is conditioned upon plaintiff's ability to provide insurance coverage superior to New Jersey Kid Care, now known as Family Care.

Plaintiff failed to present any information to support her claim to the receipt of the $100 per month for Elliot consistent with the property settlement agreement. Within 30 days of the date of this order, plaintiff shall provide to defendant proof of payment of health insurance for Elliot, and plaintiff shall provide to defendant a copy of the health insurance card.

Within 15 days of receipt of the information as identified in my previous ruling on the providing of proof of health insurance, defendant shall pay to plaintiff the sums due, if any, representing health insurance premiums consistent with the property settlement agreement. Any overpayment . . . by defendant for the health insurance premiums for the child will be applied as a credit toward defendant's future payment of health insurance premiums for the child.

Plaintiff never asserted that the PSA was amended in writing or that any amendment was embodied in a post-judgment order. But defendant did not deny his oral agreement to modify the PSA and to do so without arbitration. According to plaintiff's certification in support of the motion:

6. Instead of bringing this matter to Rabbi Teitz in October 2003, both parties agreed that he would increase the monthly child support to $650 per month and that the parties would increase the child support amount in three years.

7. As indicated in paragraph No. 13, it was explicitly agreed that the Father shall contribute $100 per month towards the child's health care.

8. Defendant has unilaterally stopped paying the proper agreed upon child support amount and has not paid the insurance premium payment for two months. He has provided me with two checks for $300. I am afraid to cash these checks because I do not want the defendant to be able to argue that I have somehow agreed to this reduction.

Defendant's "reply certification" did not deny the modification:

(5) At the time of our divorce, the plaintiff and I agreed to review my child support award in three years to see whether or not an adjustment would be made. In 2003, the plaintiff and I agreed to an increase in child support, to $650.00 per month. As stated by the plaintiff, we did not seek the assistance of Rabbi Teitz, as the plaintiff and I simply reached this agreement on our own. I had just come off a good year, earning in the $60,000.00 range, and was embarking upon opening my own company, negotiating debt for troubled companies. It was my hope to do at least as well as I had done the previous year, if not better.

During these discussions, the plaintiff routinely threatened me with litigation, if I did not agree with her demands. Plaintiff repeatedly threatened that I would "never see my child again"[] if I did not agree to her terms. This has been plaintiff's tactic since the inception of this matter, and, as previously certified, I have lost out on seeing my son on numerous occasions, due to the plaintiff's refusal to comply with our Judgment of Divorce. I therefore knew that the plaintiff would follow through on her threats to keep Elliot away from me. As the Court may recall, just this year, I was forced to file a motion for enforcement of my parenting time rights with Elliot, due to plaintiff's repeated interference with the same. Once my motion was filed, the plaintiff became uncharacteristically cooperative, and entered into a Consent Order restoring my parenting time with Elliot.

. . . .

The Court should also take note that, pursuant to our agreement, in addition to child support, I am also responsible for one-half of the cost of Elliot's private school tuition as well as summer camp and health insurance costs. Most importantly, the Court should note that the increased child support payment was made on a voluntary basis as the plaintiff and I never entered into a formal order and/or agreement reflecting the increase. I have always made the agreed upon payment diligently and timely.

. . . .

(8) On April 20[th] of this year, I wrote to the plaintiff explaining my dire financial straits. I explained to the plaintiff that I cannot afford the voluntary child support payments I had previously been making, in light of my low income and substantial debt. I advised the plaintiff that as of May 1, 2005, I plan to reduce the child support back to that which was ordered in our divorce agreement. I attach hereto as Exhibit C a copy of said letter dated April 20, 2005.

(9) As the Court can see, it is absolutely impossible for me to continue paying that which I voluntarily agreed to back in 2003. I have no opposition to the Court determining what is fair and reasonable child support, utilizing the New Jersey Child Support Guidelines, once the plaintiff provides the Court with her Case Information Statement, income verification, etc.

[Emphasis added.]

Regarding the health insurance costs, defendant also stated that plaintiff refused to provide proof that she "procured health insurance through her employment," or "proof of the cost," while "demand[ing]" the $100 contribution.

It is apparent that defendant, for whatever reason, agreed to a modification of the PSA in October 2003 and adhered to the modification for about a year and one-half. Accordingly, we reverse the judge's order premised on the absence of proof of an amendment to the PSA, and remand for further proceedings relating to Elliot's support, as of the date defendant stopped paying the $650 monthly payment.

The PSA expressly provides that "both parties have agreed to rabbinic mediation in reaching [the] agreement." The role of the rabbinate is also clear from other provisions relating to religious holidays and religious education with respect to Elliot. In fact, the Agreement concludes by providing that "[s]hould any question arise as to the meaning and/or interpretation of any aspect of this agreement, the decision of Rabbi Elazar M. Teitz shall be binding." Accordingly, on remand, the trial judge will have to decide whether she is to determine the contested issues concerning child support, including the parties' respective employment and income, or if that subject is to be arbitrated before Rabbi Teitz, notwithstanding the fact that there was no arbitration in October 2003, and that date has long passed. We do not preclude an evidentiary hearing concerning the dispute regarding the intent of the parties on that subject.

In light of our disposition, we do not feel it necessary or appropriate to consider the other issues raised by plaintiff, including the counsel fee issue which should abide the ultimate disposition on remand.

The order under review is reversed, and the matter is remanded for further proceedings consistent with this opinion.

 

The April 20, 2005 letter supports the fact that the parties voluntarily amended the PSA at least for some period of time:

I am writing to you regarding the child support and expenses that I have paid on a monthly basis for Eli. At this time, I am heavily in debt and had to take a job. Due to these circumstances I'm no longer able to send you $650/month. When I voluntarily agreed to this amount, I had hopes for my business prospering but at this time I am forced to take a job elsewhere and can no longer meet the amount I voluntarily agreed to. As such, I am decreasing the child support to the original amount of $300/month.

(continued)

(continued)

10

A-6066-04T3

July 13, 2006