ELIZABETH RESCINITO v. DOMINICK PANETTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1030-08T21030-08T2

ELIZABETH RESCINITO,

Plaintiff-Respondent,

v.

DOMINICK PANETTA,

Defendant-Appellant.

_______________________________

 

Submitted August 11, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FM-17-154-99.

Dominick Panetta, appellant pro se.

Law Offices of Scott T. Schweiger, attorneys for respondent (Scott T. Schweiger, on the brief).

PER CURIAM

Defendant Dominick Panetta appeals from two provisions contained in an August 8, 2008 post-judgment Family Part order. The first amended the amount of his child support obligation, following the emancipation of the parties' oldest child, effective on the date defendant filed his motion rather than the asserted date of emancipation. The second granted the request to pay spousal support submitted in the cross-motion of plaintiff Elizabeth Rescinito. Defendant also appeals from an order denying his motion for reconsideration of the two determinations. On appeal, defendant persuasively argues the motion judge erred in fixing the date of emancipation and continuing alimony after the limited period for payment ended, as stated in the final judgment of divorce (FJOD). We reverse.

The parties were divorced on December 17, 1999. The FJOD required defendant to pay $190 per week as support for the parties' three children and $200 per week to plaintiff as "term alimony" for the period November 1, 1999 to October 31, 2004.

From August 29, 2000 to April 20, 2008, defendant was incarcerated. His obligations for alimony and child support went unpaid, accruing $133,757 in arrearages. Since his parole, defendant has not been able to secure employment. At the time the motion was reviewed, he certified each month he received $140 in general assistance and $140 in food stamps.

Defendant filed a motion to emancipate the two oldest children, effective upon reaching age eighteen. He also asked the court to modify child support for the youngest unemancipated child and fix an arrearage payment. Plaintiff filed a cross- motion to require payment of "outstanding spousal support."

The motion judge granted defendant's request to emancipate the oldest child effective June 10, 2008. The court denied the emancipation request with respect to the middle child, a full-time college student. Imputing minimum wage earnings to defendant, the motion judge then set child support for the two unemancipated children at $20 per week, and ordered an additional $20 per week paid toward the accumulated arrearages. Finally, defendant was ordered to commence payment of the "[c]ourt ordered spousal obligation" beginning October 1, 2008 and to "pay an additional $15 per week toward arrearages." Reconsideration of the order was denied as untimely and this appeal ensued.

Our review of a trial court's factual findings is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We do "not disturb the 'factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant sought to emancipate his oldest child upon reaching the age of majority. In fixing the date of emancipation as June 10, 2008, the motion judge chose the filing date of defendant's motion. On reconsideration, notwithstanding the determination to deny relief because the motion was untimely, the judge added this comment:

No arguments were advanced by [d]efendant at the original motion to suggest facts . . . that [the child] should be emancipated prior to the filing date of the original motion. The only argument advanced by [d]efendant was limited to age [], which is only one factor the [c]ourt would consider in determining whether to emancipate. To the contrary, [p]laintiff asserted . . . the child continued to reside with her and was somewhat depend[e]nt upon her. Based upon these facts alone, the [c]ourt did not find even a disputed fact as to whether an earlier emancipation date should occur, which would in turn warrant a plenary hearing on that issue.

Our review of the record, in light of the applicable law, determines there was support for defendant's request, which was not properly considered by the motion judge. Plaintiff expressly stated defendant has had no contact with the family since 1998 due to his arrest, conviction, and conditions of parole. The only fact he can proffer is the child's age. All other information, including when the child ceased school attendance, the date employment commenced, and the child's assets and earnings, rested solely with plaintiff.

The obligation to provide payment of child support terminates with the child's emancipation. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). "The facts of each case will control when a child is emancipated. Although there is no fixed age when emancipation occurs, N.J.S.A. 9:17B-3 provides that when a person reaches eighteen years of age, he or she shall be deemed to be an adult." Gac v. Gac, 186 N.J. 535, 542 (2006). Thus, contrary to the motion judge's finding, defendant presented a prima facie case of emancipation causing the burden of proof to shift to plaintiff to demonstrate a need for parental financial contribution existed past the child's eighteenth birthday.

Also, we are satisfied plaintiff's comment that the child continued to reside with her after reaching age eighteen is not dispositive. Without ascribing any negative inference to defendant's vague response regarding the child's status, we determine her conclusory statement that "the child was depend[e]nt" is insufficient to deem it so.

Trial courts have an obligation to search for the truth. Brunson v. Affinity Fed. Credit Union, __ N.J. __ (2009) (slip op. at 30-31). This role is heightened in matrimonial matters where litigation is charged with emotion. When disputed, the issue of emancipation must be resolved by the court. Newburgh v. Arrigo, 88 N.J. 529, 543, (1982). Based upon the facts presented in this matter, the conclusion to fix emancipation as of the motion filing date must be vacated and the matter remanded for further proceedings to obtain facts supporting the oldest child's status as of his eighteenth birthday and the period thereafter.

During the reconsideration motion, defendant argued the emancipation of the oldest child was not precluded by N.J.S.A. 2A:17-56.23(a). The motion judge did not specifically address this question, based upon his acceptance of plaintiff's statement that the child remained dependent after reaching age eighteen. To be clear, N.J.S.A. 2A:17.56.23(a) does prohibit the retroactive modification of child support due to a change in financial circumstances when the duty to support continues. Ibid. The statute does not preclude termination of support "by virtue of a judicial declaration of emancipation." Mahoney, supra, 285 N.J. Super. at 643. Thus, "N.J.S.A. 17:56.23(a) does not bar the cancellation of child support arrearages, which accrued subsequent to the date of a [child's] emancipation as retroactively determined by the court." Ibid.

The second issue on appeal addresses the motion judge's "enforcement" of the alimony obligation set forth in the FJOD. Defendant argues the term alimony ended on October 31, 2004, and all payments, which accrued at $200 per week, were included in his total arrearage obligation stated as $133,757. Therefore, the motion judge had no basis to again award plaintiff payment of $200 per week plus a payment on arrears. Plaintiff's position rests on the provisions of the FJOD, which state the alimony obligation could not be modified by any change in circumstances experienced by either party. Because she did not receive the benefit of the alimony, due to defendant's incarceration, she remains entitled to its receipt. Defendant never denied he owed the past due payments to plaintiff. Rather, he challenges the court's apparent reactivation of the payments already included in the arrearages.

The record contains no account statement verifying the nature of the accumulated arrearages. The motion judge should have printed a statement of defendant's account to determine the nature of the account charges. If the alimony obligation was reflected in the arrearages, the order reactivating the limited duration alimony payment, despite the passage of their defined ending date, was unwarranted. N.J.S.A. 2A:34-23(c) allows the court to "modify the amount of such an award, but [prohibits] modif[ication of] the length of the term except in unusual circumstances." The existence of "unusual circumstances" was neither argued nor presented. Accordingly, if the court intended to extend the alimony award, the order must be reversed.

If we have misinterpreted the inartful language used and the court intended the payment as an aid to enforcement of the arrearage payments, we also are constrained to reverse. While we agree with plaintiff that her entitlement to the limited duration award was fixed by the terms of the FJOD, this is not the issue presented. What is requested by defendant's motion is the exercise of the Family Part's highly flexible remedial powers to enforce the terms of its orders and require a reasonable arrearage payment pending defendant's receipt of full-time employment.

In this case, the reality of defendant's incarceration requires recognition of his present financial ability. Defendant had not secured employment and qualified for receipt of general assistance. "General assistance, which is sometimes referred to as 'municipal welfare,' is a state-supervised, municipally administered public assistance program available to needy persons not otherwise" eligible for other welfare aid. Williams v. Dept. of Human Servs., 116 N.J. 102, 109 (1989) (internal citations omitted). Qualification for receipt is determined on the basis of a recipient's lack of income or resources. Ibid. A welfare client receiving $300 per month, living with his parents, is in no position to pay arrearages of $215 per week.

We note the motion judge made no findings to support the determination to impute minimum wage income to defendant, as required by Rule 1:7-4(a), which may warrant reversal. Even assuming the imputation was appropriate, defendant's pre-tax weekly income for a forty hour week would total $286, N.J.S.A. 34:11-56a4, from which this order required alimony and child support of $255. Such an order is unjust and unsupportable. A more equitable approach would require arrearage payments commensurate with defendant's ability to pay and include periodic monitoring of his employment progress. Thereafter, further proceedings, including, as necessary, a plenary hearing, could be scheduled to challenge the sincerity of defendant's employment efforts or to make findings supporting the appropriate level to be fixed as defendant's imputed income.

We make these final comments. Timely filings of motions for reconsideration are necessary to bring to a close litigation and assist the administration of the judicial process. A late filed motion seeking reconsideration of an articulated clerical error does not preclude a court's consideration. R. 1:13. Additionally, the court's correction of a legal error should not be ignored if recognized, as a trial judge has the discretion to amend its incorrect legal conclusions to avoid an injustice. R. 1:1-2. Thus, defendant's request to clarify the court's ruling with respect to the alimony award should have been heard.

Paragraphs 1 and 9 of the Family Part order dated August 8, 2008 are reversed in part. In paragraph 1, the effective date of emancipation is vacated, and the issue is remanded for further proceedings to determine the actual date the parties' oldest son was emancipated. The court is also instructed to revise defendant's arrearage account once the date for emancipation is fixed. Arrearages must be adjusted accordingly.

The provision of paragraph 9 ordering the commencement of payment of spousal support is vacated, and the matter is remanded to determine whether plaintiff's alimony obligation was included in the total outstanding arrearages, as listed on the records of the New Jersey Child Support Payment Center, and to determine an appropriate arrearage payment recognizing defendant's financial circumstances, and whether further conditions should be imposed to assure repayment of the outstanding obligation.

 
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

(continued)

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A-1030-08T2

 

August 20, 2009