JOANN NEMES v. JEFFREY NEMES

(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NOT FOR PUBLICATION WITHOUT THE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-3541-07T33541-07T3

JOANN NEMES,

Plaintiff-Respondent,

v.

JEFFREY NEMES,

Defendant-Appellant.

_____________________________

 

Submitted February 24, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-1071-04.

Jeffrey Nemes, appellant pro se.

Teich Groh, attorneys for respondent (Carol Oswald, on the brief).

PER CURIAM

Defendant Jeffrey Nemes appeals from those parts of the February 4, 2008 order that: 1) granted plaintiff Joann Nemes's request to fix alimony and child support arrearages in the amounts of $9,930 and $7,635, respectively; 2) directed that all child support and alimony payments be made through probation via wage garnishment, retroactive to December 1, 2007; and 3) denied his request for biweekly visitation with the parties' children. We affirm in part; reverse in part; and remand for further proceedings consistent with this opinion.

The parties were married on June 30, 1991, and divorced on April 18, 2006. Two daughters were born of the marriage in December 1992 and May 1995. During the marriage, defendant was employed by Hamilton Township as a police officer. He also operated a home improvement business under the name of Nemes Enterprises, Inc.

In January of 2000, the Office of the Attorney General commenced an investigation into defendant's activities concerning Nemes Enterprises. As a result of the investigation, the State charged defendant with failure to make lawful disposition of entrusted property. In May 2003, defendant was convicted of that charge and incarcerated. As a result of his conviction, Hamilton Township terminated defendant from employment. That conviction, however, was reversed in 2004.

Shortly after the reversal of the conviction, plaintiff filed her complaint for divorce. While the divorce proceedings were pending, defendant was indicted two additional times for matters arising from unlawful conduct of his home improvement business. On February 28, 2006, the parties entered into a Marital Settlement Agreement (MSA) addressing the issues of alimony, custody, child support, parenting time, and equitable distribution of property.

As to alimony and child support, the MSA provided that defendant pay plaintiff $1,986 per month in alimony, and $1,827 per month in child support. The MSA did not include any provisions for modification of the agreement in the event defendant was convicted and incarcerated on the two pending charges.

On April 18, 2006, the court entered a final judgment of divorce (FJOD) incorporating the MSA. In June 2007, defendant was convicted on the pending charges of conspiracy to commit bribery and bribery. Defendant was sentenced to an eight-year term of imprisonment and remained incarcerated through the proceedings leading to this appeal.

On November 15, 2007, plaintiff filed a motion for an order "[e]ntering the Qualified Domestic Relations Order" (QDRO) prepared by her counsel; seeking judgments against defendant for alimony and child support arrearages in the amounts of $9,930 and $7,635, respectively; "[p]lacing a lien on defendant's pension accounts to satisfy said [j]udgments and for future support accruing after the date of the [j]udgment"; and "[directing that] all child support and alimony payments . . . be made through the appropriate Probation Department via wage garnishment pursuant to the terms of the [MSA]". Defendant opposed plaintiff's motion and cross-moved for an order "[s]taying all support related to [plaintiff's] motion until [he] is released from incarceration"; and directing that plaintiff "allow supervised visits by [his] children [biweekly] or as the children's schedule allows".

On February 4, 2008, the court entered an order, supported by a statement of reasons, that: denied plaintiff's request for a QDRO; granted plaintiff's request fixing alimony arrearages in the amount of $9,930 and child support arrearages in the amount of $7,635; reduced the amounts of alimony and child support arrearages to a judgment; and granted plaintiff's request that all child support and alimony payments be made payable through Probation via a wage garnishment, effective December 1, 2007. The order also denied defendant's request for biweekly visitation with his children.

In reaching its decision, denying defendant's application for a suspension of his support obligations, the trial court reasoned:

[T]he [c]ourt has applied the factual and equitable circumstances here. First, it must be noted that defendant did not move to suspend his obligation until faced with plaintiff's request for a judgment in the amount of existing arrears and to have his obligation paid through [p]robation. Second, the [c]ourt agrees with the [p]laintiff's argument that to suspend the incarcerated parent's support obligation unjustly favors the interest of the incarcerated parent to the detriment of the child. Third, the [c]ourt further agrees that another factor that weighs against modification here is the two-prong analysis suggested by the decision in [Bergen County Bd. of Servs.] v. Steinhauer, 294 N.J. Super. 507, 518 (Ch. Div. 1996). There, the court stated a two-prong inquiry was necessary in determining whether an incarcerated obligor was entitled to a modification or suspension of his support obligation - (1) the length of the sentence[;] and (2) the extent of the obligor's assets. Here, although defendant is serving an 8-year sentence, his pension serves as an asset that can be used to satisfy his support obligation and thus, the [c]ourt declines to reward him by suspending his support obligation.

On appeal, defendant argues that the trial court erred: 1) in denying his motion to suspend alimony and child support payments during the term of incarceration; 2) in denying his request for supervised visitation with his children; and 3) in granting plaintiff a QDRO and a judgment for support arrearages without first determining his ability to pay.

At the outset, we note that "Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). As a result, we accord the factfinding of a family court judge deference. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Nevertheless, we may disagree and disturb a trial judge's findings and legal conclusions when "'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 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

The use of negotiated agreements to resolve marital controversies is favored by the courts, "and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Consensual marital agreements "'should not be unnecessarily or lightly disturbed.'" Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). When there is "'no showing of unfairness, the trial court should not supply terms which the parties obviously considered and yet did not adopt.'" Rolnick v. Rolnick, 262 N.J. Super. 343, 352 (App. Div. 1993) (quoting Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)).

Nevertheless, consensual "divorce agreements are necessarily infused with equitable considerations and are construed in light of salient legal and policy concerns." Konzelman, supra, 158 N.J. at 194. Such agreements "are not governed solely by contract law." Ibid. A marital settlement agreement will be enforced if found "fair and just." Ibid. Accordingly, "[c]ourts have continuing power to oversee divorce agreements, [and] . . . to modify them on a showing of 'changed circumstances,' . . . that render their continued enforcement unfair, unjust, and inequitable." Ibid. (citation omitted).

Applications for modification of established support obligations are informed in part by the payors "'ability to pay' the amount set, or agreed to." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). "The party moving for modification 'bears the burden of making a prima facie showing of changed circumstances.'" Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (quoting Miller v. Miller, 160 N.J. 408, 420 (1999)), certif. denied, 180 N.J. 354 (2004).

Defendant argues that the trial court erred in denying his motion to suspend alimony and child support payments while incarcerated. Defendant contends that his incarceration not only constitutes changed circumstances, warranting a suspension of those support obligations to prevent the accruing of arrearages, but also a suspension of payments against those obligations pending his release from prison.

A payor's incarceration does not per se preclude a modification for support based on changed circumstances. Kuron v. Hamilton, 331 N.J. Super. 561, 570 (App. Div. 2000). Nor does incarceration per se constitute changed circumstances warranting a modification or suspension of support obligations because "[c]urrent earnings are not the sole criterion to establish a party's obligation for support." Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999). Rather, a payor's incarceration is but one factor among others to be weighed by the trial court in determining whether to grant a payor's request for relief from payment from support obligations while imprisoned.

The issue of whether a payor is entitled to modification or suspension of his or her support obligation is fact sensitive. Kuron, supra, 331 N.J. Super. at 572. Among factors to be considered by a court on an application to reduce or suspend support obligations because of imprisonment are: "the motives of the payor, the timing of the conduct that brought about the reduction in income, the payor's ability to meet the mandated support obligations even after the reduction in income, and the ability of the payee to provide for himself or herself." Id. at 571. Additionally, the court should also consider the length of the incarcerated obligor's sentence, calculated by the earliest possible release date. Id. at 575. It is against these principles that we consider defendant's arguments.

We first address defendant's challenge to that part of the order fixing child support arrearages in the amount of $7,635 and reducing the arrearages to judgment. Defendant's cross-motion seeking modification of his alimony and child support obligations was filed on December 2, 2007. Although a trial court may modify a child support obligation where warranted, based on changed circumstances, the court is prohibited from retroactively granting such modification "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." N.J.S.A. 2A:17-56.23a. Thus, the trial court correctly fixed the amount of defendant's child support arrearages and entered judgment accordingly. We discuss defendant's challenge to the court's denial of suspension of his child support obligations post-filing of his cross-motion on December 2, 2007, infra.

We next turn to defendant's challenge to that part of the order fixing alimony arrearages in the amount of $9,930 and reducing the arrearages to judgment. Unlike child support obligations, there is no analogous statutory provision prohibiting retroactive modification of alimony. Whether to grant a retroactive suspension in alimony payments is discretionary with the court. Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996). We consider the issue of whether to suspend defendant's alimony arrearages that accrued prior to December 2, 2007, through the same lens that we consider his argument that the court erred in not suspending all future support obligations. Each issue depends on whether defendant proved changed circumstances based on his incarceration.

Here, we are satisfied that the trial court did not properly consider the Kuron factors. Initially, one reason expressed by the trial court in denying defendant's motion was "that to suspend the incarcerated parent's support obligation unjustly favors the interest of the incarcerated parent to the detriment of the child." We cannot foresee a circumstance when this factor would not be true on a motion to suspend child support obligations by an incarcerated parent. Thus, we consider the court's denial of the motion equivalent to a denial based on incarceration per se, which we previously disapproved of in Kuron, supra, 331 N.J. Super. at 570.

In addition, although the court properly considered the two-prong test of Steinhauer, as cited by the Kuron court, supra, 331 N.J. Super. at 575, we are satisfied that the court incorrectly determined the second factor, i.e., the extent of defendant's assets. In denying defendant's motion, the court determined that "although defendant is serving an [eight]-year sentence, his pension serves as an asset that can be used to satisfy his support obligation." We conclude that the record does not support that finding and is inconsistent with the trial court's denial of plaintiff's application for a QDRO.

The parties acknowledged in the MSA that defendant had participated in a pension with the State of New Jersey through his employment with Hamilton Township. Defendant's contribution to the pension plan at the time the MSA was entered into was $27,000. However, as a result of the criminal convictions, defendant's right to receive pension benefits was questionable. In the MSA, the parties provided:

that [defendant's] pension may not be restored to him and that [plaintiff's] right to receive one-half of the marital coverture portion less the balance of pension loans obtained to maintain the marital lifestyle during the marriage and is dependent on said pension being restored as a result of litigation. If [defendant] is refunded his contributions, or the [Police and Firemen's Retirement System] or his employer "buys out" his pension rights, [plaintiff] is entitled to one half of said amount.

In denying plaintiff's application for a QDRO, the court recognized that defendant's right to receive pension benefits or buyout had not yet been determined. "Therefore, the [c]ourt must deny [p]laintiff's request as she recognized in the FJOD that she may not be entitled to half. Further, the FJOD only calls for a QDRO if [d]efendant's pension goes into pay status, which it has not." Accordingly, denying defendant's application to suspend support payments based on his ability to use his pension to satisfy the obligations was incorrect.

Defendant argues next that the trial court erred in denying his motion seeking an order compelling plaintiff to require the parties' children to visit him while he is incarcerated. We reverse and remand for a plenary hearing on the issue.

We have previously "opined on the impermissibility of deciding contested issues of fact on the basis of conflicting affidavits or certifications alone." State v. Pyatt, 316 N.J. Super. 46, 50 (App. Div. 1998) (citations omitted), certif. denied, 158 N.J. 72 (1999). Where the papers filed raise genuine and material issues of fact or require credibility determinations, relief cannot be granted or denied absent a plenary hearing. This is particularly so where child custody or visitation is an issue. Whitfield v. Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998); Fusco v. Fusco, 186 N.J. Super. 321, 327-28 (App. Div. 1982).

Here, the children are thirteen and fifteen and one-half years old. They speak with defendant via telephone several times a week. Defendant certified that he inquired of both children whether they would care to visit him on weekends and both of them replied in the affirmative, but plaintiff refuses to allow the visits. Plaintiff, however, certified to the contrary. Plaintiff countered that one daughter visited defendant in August 2007, and became unnerved by the situation; and the second daughter told her that she does not "want to see her father in prison."

Because there is a conflict concerning the children's desires to visit with their father, we conclude that the trial judge mistakenly determined the issue on the papers. Therefore, we reverse and remand for the trial court to conduct a hearing on the issue, including interviewing the children. Fusco, supra, 186 N.J. Super. at 327.

Lastly, defendant argues that the trial court erred in granting plaintiff's request for QDRO pertaining to his pension through his employer Hamilton Township. Contrary to defendant's argument, the court denied plaintiff's application for a QDRO.

We affirm that part of the order fixing defendant's child support arrearages in the amount of $7,635 and reducing the arrearages to judgment; we reverse those parts of the order that: 1) fixed defendant's alimony arrearages in the amount of $9,930 and reduced the arrearages to judgment; and 2) denied defendant's application to suspend all future support payments while incarcerated. We remand to the trial court to reconsider defendant's application to suspend his alimony obligation from the time of his incarceration in June 2007, to the date he filed his cross-motion on December 2, 2007, and to reconsider defendant's application to suspend all support obligations from the date he filed his motion until released from prison.

On remand, the court shall require the parties to file updated CIS statements setting forth their current financial circumstances, including updated information concerning defendant's applications to reinstate his pension. Such information will assist the court in determining defendant's ability to pay his support obligations while he is incarcerated. "Underpinning the basis of every support order is the proposition the payor has the 'ability to pay' the amount set, or agreed to." Dorfman, supra, 315 N.J. Super. at 516; see also Kuron, supra, 331 N.J. Super. at 576 (holding that a reduction in a payor's income may, "if appropriate circumstances are established, warrant the entry of an order allowing for a temporary reduction or suspension of support payments. Such a provision may be with or without a concomitant accrual of arrears, depending on the particular qualities of the case and the situations of the parties.").

We also reverse that part of the order denying defendant's request for an order compelling plaintiff to allow the parties' children to visit him while he is incarcerated. On remand, the court shall conduct a plenary hearing to determine whether visitation is in the children's best interests and shall conduct an interview of the children to ascertain their desires on the issue.

Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.

 

Plaintiff contends in her appellate brief that defendant's earliest release date from prison is May 29, 2009. We do not find support for that statement in the record. It is a factor, however, that the court should address on remand.

Plaintiff argues in her brief that the trial court erred in denying her request for a QDRO pertaining to defendant's pension. Because plaintiff did not cross-appeal from the denial of her application, we do not address the issue.

(continued)

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A-3541-07T3

June 17, 2009