JOANNE TERWILLIGER v. DAVID TERWILLIGER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1962-07T11962-07T1

JOANNE TERWILLIGER,

Plaintiff-Respondent,

v.

DAVID TERWILLIGER,

Defendant-Appellant.

___________________________

 

Submitted October 20, 2008 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1292-02C.

Donald E. Warren, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant David Terwilliger (David) appeals from an October 10, 2007 order that required his former wife, plaintiff Joanne Terwilliger (Joanne), to pay $170 per week in child support for the parties' two children retroactive to September 4, 2007. We reverse only as to the effective date of the order and remand for further proceedings as to the appropriate effective date for Joanne's child support obligation.

We begin with the tortured procedural history that leads us to this result. The parties divorced on January 31, 2003. At the time, Joanne had custody of the children. On January 30, 2006, David filed a pro se motion under the parties' matrimonial FM docket number to modify his child support obligation as the children, by mutual consent, had come to live with him. The divorce decree required him to pay $90 per week in child support. Despite Joanne's failure to file any response, David's FM application was dismissed on March 7, 2006, because he did not include a copy of the January 31, 2003 divorce decree, or any financial information, with his pro se application. The children have lived continuously with David since at least some time in January 2006, prior to his first pro se motion seeking to modify child support. Despite the children's residence with David, and the fact that Joanne was not paying child support, David was incarcerated twice for non-payment of child support between January 30, 2006, and June 18, 2006.

David next filed an application under a new and separate FD docket number, and on June 20, 2006, Joanne's parenting time was limited to supervised visitation. David's obligation to pay child support was suspended from June 18, 2006, "until further order of the court." A hearing date of July 5, 2006, was scheduled, presumably to address his request for child support, although no hearing took place on that date.

On September 1, 2006, under the same FD docket number, David filed a third motion seeking custody of the children and an order for child support. On December 22, 2006, the court continued custody in David, but did not decide the issue of child support. The December 22 order also stated that child support would be addressed at a plenary hearing, and scheduled a case management conference for January 30, 2007. It was anticipated that a date for the plenary hearing on child support would be set at the case management conference.

Following the case management conference on January 30, 2007, the court ordered Joanne to file a Case Information Statement (CIS) and other relevant economic information and directed that failure to file the CIS would result in dismissal of Joanne's pleadings. The order also consolidated the FD docket into the FM docket, set a schedule for discovery, and indicated that subsequent to Joanne filing her CIS, the parties were to "discuss fixing temporary child support under [the] guidelines without prejudice." The order states: "Failure to resolve by 2/23/07 shall be a basis for renewed motion for PL support."

No support hearing was ever conducted. We cannot discern from our review of the scant documents included in the appendix to David's brief any reason for the court's failure to award child support, even on an interim basis. Nor can we discern why the burden was shifted to David to file yet another application so as to obtain the relief he had been seeking for months. In any event, on March 19, 2007, citing Joanne's refusal to "discuss" temporary child support, David filed a motion to "enforce litigant's rights."

We do not know why on April 26, 2007, enforcement of litigant's rights was denied "without prejudice." No plenary child support hearing was scheduled. No child support was ordered.

A plenary hearing was finally scheduled for September 5, 2007, for reasons not clear from the record we have been provided, as at that time, there did not appear to be a motion pending. On August 24, 2007, however, Joanne's attorney was permitted to withdraw as her counsel.

On September 4, 2007, David filed another motion, possibly his fifth, again seeking child support retroactive to the initial January 30, 2006 filing date. The application sought additional relief not relevant to this appeal and included a request that David's child support obligation be vacated retroactive to the date that the children began to live with him.

On September 18, 2007, David was awarded sole custody of the children. A hearing on the financial issues, however, was postponed once more, this time to October 5, 2007. On October 10, 2007, when child support was at last awarded, it was made effective retroactive only to September 4, 2007. The court also denied David's request that he be reimbursed for any child support he paid after January 30, 2006.

The court denied David's subsequent application for reconsideration on December 14, 2007. It is that reconsideration order from which this appeal is taken. On January 17, 2008, pursuant to Rule 2:5-1(b), the motion judge expanded the record as to his reasons for denying David's request for retroactive child support and for reimbursement of payments David made after January 30, 2006.

The motion judge relied upon N.J.S.A. 2A:17-56.23a, which in pertinent part states:

No payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within forty-five days. In the event a motion is not filed within the forty-five-day period, modification shall be permitted only from the date the motion was filed with the court.

The judge interpreted the statute to mean that because David's January 30, 2006 application for modification was dismissed, it was "completed and disposed of" and was therefore no longer pending. The judge did not address the history of futile proceedings that David initiated in order to obtain an order of support. He may not have been completely aware of the number of prior motions. As a result, the judge considered David's application to have been "pending" only as of September 4, 2007. The judge further opined that the statute precluded David from obtaining an award of back child support because of the gaps in time during which no motion was pending.

We do not agree. In Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999), we concluded that the statute's reach is limited to "prevent[ing] retroactive modifications decreasing or vacating orders allocated for child support." Nothing in the statute, however, bars the retroactive entry of orders increasing child support where equitable. Id. at 294.

It is the duty of both parents to provide support for their children. In this case, David was the full-time custodial parent for the parties' children since at least January 30, 2006, and filed several applications seeking contribution from Joanne. Fixing the effective date of the child support award retroactive to a date prior to the filing date of David's most recent motion should have been considered by the motion judge.

Furthermore, the initial pro se motion for child support that David filed on January 30, 2006, was dismissed on March 7, 2006, for technical reasons. We cannot discern from this scant record if he was given the opportunity to produce the necessary paperwork prior to dismissal, or if he was notified that he had the right to immediately refile the application with the proper supporting documents. "Courts[] . . . are not unfamiliar with situations where enforcing a rule, in an exercise of their discretion and in the face of the litigant's . . . failing, may severely prejudice a litigant." Leitner v. Toms River Regional Schools, 392 N.J. Super. 80, 89 (App. Div. 2007). Had that first application resulted in a child support order, none of the subsequent fruitless motions, court appearances, or this appeal would have been necessary.

"[T]he real business of the courts . . . is to dispense substantial justice on the merits." Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982). As a result of David's failure to obtain relief despite his reasonable, good faith efforts, equity may require the effective date of Joanne's child support obligation to be other than the filing date of the most recent motion. Accordingly, the Family Part judge must review the facts, beginning with the initial change of custody on January 30, 2006, to determine the proper effective date of the child support order.

Even if the January 30, 2006 application was properly dismissed because of procedural shortcomings, the motion judge could have chosen June 20, 2006, as an alternative effective date. David's obligation to pay support was then vacated, and a plenary hearing was then scheduled for July 5, 2006. Because we have not been provided with any explanation for the court's failure to proceed on that date, we cannot determine if the use of this start date for support is fair to the children and their parents.

September 1, 2006, is a third possible effective date for child support. Understanding that Joanne's attorney withdrew from representation shortly before the scheduled hearing, it is still unclear why no interim support was ordered. No final hearing was scheduled as anticipated in the December 22, 2006 order. Instead, additional orders were entered denying David reimbursement of the support he paid after the children began to live with him and merely postponing his request for child support. It was not until October 10, 2007, that the matter was finally addressed and an order of support was entered, nearly two years after his first application.

David may not have been entitled to the immediate termination of his child support obligation. Koelble v. Koelble, 261 N.J. Super. 190, 196 (App. Div. 1992); Ohloff v. Ohloff, 246 N.J. Super. 1, 7 (App. Div. 1991) (A change in the residence of a child with respect to whom there is an outstanding support order does not automatically abrogate a support obligation.). Additionally, the anti-retroactivity statute prevents us from vacating David's obligation to pay child support for the initial five-month period. But, as noted in Keegan, the statute does not prohibit a retroactive increase where equitable. The public policy behind the anti-retroactivity statute is to "remedy the loopholes of interstate child support enforcement laws in order to benefit children." Keegan, supra, 326 N.J. Super. at 294. Nothing in the legislative history establishes a purpose to prevent a custodial parent from obtaining a retroactive order of child support where good faith efforts are stymied through no fault of the parent's. Ibid.

Because we simply have no explanations for the delays and postponements, nor can we discern the parties' financial status during the relevant time periods, we vacate the effective date of the order and remand for a plenary hearing just on those issues. On the remand, the Family Part shall schedule discovery to be completed within thirty days as to the parties' finances from January 30, 2006, to September 4, 2007. At the plenary hearing, evidence is to be presented both as to the reasons for the multiple delays as well as the parties' financial circumstances. The hearing shall be scheduled within forty-five days of this decision. Knowing that the imposition of a retroactive order of support is not barred by statute, the court shall determine an equitable effective date based on the record to be developed at the plenary hearing.

Vacated and remanded only as to the start date of the child support order, otherwise affirmed.
 

Rule 5:1-2(a) states that "[a]ll civil actions in which the principal claim is unique to and arises out of a family or family-type relationship shall be brought in the Family Part." A case that is opened by a complaint for divorce or separate maintenance is given a docket number starting with the designation "FM." A case that is opened by a complaint for custody, support, paternity, or parenting time is given an "FD" docket number.

Nothing in the record explains if enforcement proceedings resulted from arrears accumulated prior to January 30, 2006, or ongoing support payable to Joanne.

Rule 5:5-2(a) provides that a CIS is required in all contested family actions in which there is any issue as to custody, support, alimony or equitable distribution.

(continued)

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A-1962-07T1

March 25, 2009