MARIBEL ALVAREZ v. LUIS ALVAREZ

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3452-07T13452-07T1

MARIBEL ALVAREZ,

Plaintiff-Respondent,

v.

LUIS ALVAREZ,

Defendant-Appellant.

__________________________________

 

Submitted March 18, 2009 - Decided

Before Judges Lyons and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket FM-09-108-03.

Thomas J. Wall, attorney for appellant.

Law Offices of Kelly Berton Rocco, attorneys for respondent (Ms. Rocco, of counsel and on the brief).

PER CURIAM

Defendant Luis Alvarez appeals from the February 8, 2008, post-judgment order of the Family Part imposing sanctions for his failure to comply with certain prior orders concerning his support obligations. We vacate Paragraphs 4, 6, 7, and 8 of the order and remand to the Family Part for further proceedings consistent with this opinion.

I

The following facts inform our decision on this appeal. The parties were married in 1994, separated in 2001, and divorced in 2003. They have two children, a son born in 1994 and a daughter born in 1996. Pursuant to the judgment of divorce, Alvarez was required to pay child support and term alimony, plus a percentage of other child-related expenses.

In a post-judgment order entered in May 2005, Alvarez was ordered to pay $1,622.85 toward parochial school expenses and $713 toward summer activities, each amount representing sixty-two percent of the expenses involved. When he failed to make the required payments, his former wife, acting pro se, made a motion to enforce those obligations. In an order entered on August 12, 2005, the Family Part enforced both requirements.

In addition to enforcing the payment obligations, the August 12, 2005, order provided, separately as to each obligation, that if Alvarez failed to make the required payment, "a sanction of $25.00 per day [would] be assessed for each day he fail[ed] to comply." Alvarez has certified that he never received that order, and no proof of service is contained in the record before us.

In 2007, Alvarez filed a motion to reduce his support payments, based upon his claimed loss of employment. His former wife cross-moved to enforce the August 12, 2005, order. Alvarez's motion was heard on January 4, 2008. He was ordered to supply certain information not relevant to this appeal by February 8, 2008, which was designated as the return date of his former wife's cross-motion.

On February 8, 2008, following oral argument, the motion judge entered an order that, in addition to other relief, added the outstanding school tuition and summer activity obligations to Alvarez's child support arrears. She also added $19,450 for each of the two unpaid obligations to the arrears, representing the accumulated $25 per day for each day of non-payment. Consequently, a total sanction of $38,900 was imposed for Alvarez's continuing failure to pay a total of $2,335.85 in extra support obligations. The motion judge also imposed an unspecified amount of community service through the Hudson County Sheriff's office and $1,830 in counsel fees. This appeal followed.

II

On appeal, Alvarez argues that the motion judge should have conducted a hearing to determine whether he actually received the order imposing the $25 per day sanction. He also argues that the motion judge's imposition of a total sanction of $38,900, plus community service and counsel fees, for his failure to pay $2,335.85 in extra support obligations was unduly punitive.

A

We ordinarily accord great deference to the discretionary decisions of the Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of the Family Part judges. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

In this case, however, there were no findings of fact based upon an evidentiary hearing. Despite Alvarez's certification that he never received the August 12, 2005, order, the motion judge simply assumed that he must have received it, or had knowledge of its contents, on the basis of the motion judge's knowledge of the skill of Alvarez's then attorney. This is not a sufficient basis to reach such a conclusion, especially in light of the significant sanctions imposed on Alvarez.

Consequently, we vacate those portions of the order under appeal, specifically Paragraphs 4, 6, 7, and 8, and remand to the Family Part for a hearing to determine whether he received the order or had notice of the sanctions imposed for his continuing non-payment of the obligations at issue.

B

Because there will be a remand hearing, we only address Alvarez's remaining issue briefly. As noted, we accord great deference to the discretionary decisions of the Family Part. That deference includes the reasonable exercise of discretion in the imposition of sanctions. Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998).

Rule 1:10-3 accords the trial courts considerable discretion in enforcing litigants' rights. For Family Part judges, that discretion is enhanced by the provisions of Rule 5:3-7(b)(emphasis added), which provides that:

On finding that a party has violated an alimony or child support order the court may, in addition to remedies provided by R. 1:10-3, grant any of the following remedies, either singly or in combination: (1) fixing the amount of arrearages and entering a judgment upon which interest accrues; (2) requiring payment of arrearages on a periodic basis; (3) suspension of an occupational license or driver's license consistent with law; (4) economic sanctions; (5) participation by the party in violation of the order in an approved community service program; (6) incarceration, with or without work release; (7) issuance of a warrant to be executed upon the further violation of the judgment or order; and (8) any other appropriate equitable remedy.

The sanctions imposed on Alvarez were clearly of the type permitted by Rule 5:3-7(b)(4) and (5), as highlighted above, and by Rule 1:10-3 ("The court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule.").

The $25 per day sanction was imposed in August 2005 to compel Alvarez's immediate compliance with the court's prior order. It was, therefore, a coercive measure of the type permitted by Rule 5:3-7(b)(4) and approved in Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997) ("Relief under Rule 1:10-3, whether it be the imposition of incarceration or a sanction, is not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of the court order.").

Assuming that Alvarez received the August 12, 2005, order or had actual notice of its provisions for sanctions, the question of whether to apply the sanction for each obligation and for the full period between the date of the 2005 order and the order under appeal, together with community service and an award of counsel fees, called for an exercise of discretion by the motion judge. The judge must articulate with specificity her reasons for concluding that the sanctions imposed are an appropriate exercise of her discretion under Rule 5:3-7(b) and not excessively punitive. We do not consider that obligation to have been fulfilled in the record below, but anticipate that the decision on the remand will meet those requirements. We can only review such an exercise of discretion in light of a clear articulation of the underlying facts and the reasons for imposing the chosen sanctions.

III

 
In summary, we vacate those portions of the order under appeal that impose the sanctions discussed above, specifically Paragraphs 4, 6, 7, and 8, and remand to the Family Part for: (1) a hearing to determine whether the August 12, 2005, order was served on Alvarez, or whether the sanction provisions of that order were known to him; and (2) a specific articulation of the motion judge's reasons for imposing any sanctions following the remand hearing.

Vacated and remanded.

Because this appeal concerns only issues raised by Luis Alvarez, we refer to him as "Alvarez" throughout this opinion.

The record does not include a transcript of any oral argument or statement of reasons with respect to that order, so we are unable to determine whether it was decided on the papers or after oral argument.

Although the issue was not raised on appeal, we note a discrepancy with respect to the amount of the parochial school tuition. The May 2005 order requires Alvarez to pay $1,622.85, which represents his sixty-two percent share of $2,617.50 in tuition. In paragraph 3 of the August 12, 2005, order, the amount added to arrears is the full $2,617.50. On remand, Alvarez may seek to determine whether the amount indicated was in error.

Ridley, which was decided prior to the adoption of Rule 5:3-7, was based solely on the provisions of Rule 1:10-3.

(continued)

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A-3452-07T1

May 18, 2009