JOANNIS ARGYRIOU v. LAURA M. ARGYRIOU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2974-08T12974-08T1

JOANNIS ARGYRIOU,

Plaintiff-Appellant,

v.

LAURA M. ARGYRIOU, n/k/a

LAURA M. CARBONE,

Defendant-Respondent.

______________________________

KOSTAS and ARISTEA ARGYRIOU,

Intervenors,

v.

JOANNIS and LAURA M. ARGYRIOU,

n/k/a LAURA M. CARBONE,

Defendants.

______________________________

 

Argued February 24, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1862-02.

Anthony A. Boyadjis argued the cause for appellant.

Lisa C. Krenkel argued the cause for respondent (Krenkel & Krenkel, L.L.C., attorneys; Ms. Krenkel, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff appeals from two orders entered by the Family Part: a June 20, 2008 order fixing his share of the medical insurance obligation for the minor children born of the marriage at $155 per month, and a November 28, 2008 order increasing plaintiff's child support obligation without first conducting a plenary hearing, refusing to adjust his portion of the monthly health insurance premium from $155 per month to $67 per month, and also refusing to amend the June 20 order to conform to the court's statement of reasons relative to reimbursing plaintiff $683.98. We affirm in part and reverse in part.

The parties were divorced pursuant to a Final Judgment of Divorce (FJOD) dated March 30, 2004. The FJOD incorporated a Matrimonial Settlement Agreement (MSA) the parties also executed on March 30, 2004. Two children were born of the marriage, and under the MSA, defendant would "continue to maintain residential custody of the minor children." The MSA also included a provision entitling defendant to seek "re[-]computation of Husband's child support level, with the understanding that Husband's child support obligation shall always remain at a minimum level of $1,000 per month," in the event plaintiff became more than thirty days delinquent in his monthly child support obligation.

On April 9, 2008, defendant filed a motion seeking, in addition to other relief, an increase in child support and reimbursement for fifty percent of the medical insurance premiums deducted from her salary, which, according to defendant, totaled $5,885.46. In support of the application, defendant submitted a certification in which she stated that plaintiff had failed to pay his share of the medical insurance premiums since 2004. Among the supporting documents provided was a pay stub confirming that she paid $155 every two weeks for family medical, vision and dental care. On June 12, plaintiff filed a cross-motion seeking $7,000 in un-reimbursed medical expenses, educational costs and other funds expended on behalf of the minor children for which plaintiff alleged defendant should be required to contribute financially. In support of his cross-motion, plaintiff submitted a certification in which he acknowledged that he had not paid his share of the children's health insurance premiums but attributed his failure to the fact that defendant never provided him with the necessary documentation.

The court conducted oral argument on June 20 and, on that same date, entered an order: (1) compelling plaintiff, within thirty days of the date of the order, to provide to defendant a completed Case Information Statement; (2) directing plaintiff to provide statements of his annual income for the years 2002 to 2004 to defendant; (3) directing payment to defendant of $155 per month, representing one-half of the monthly health insurance premium; and (4) permitting defendant the opportunity to file an application for the calculation of support based upon the documents presented. The court denied defendant's motion to modify the allocation of the medical expenses. The court also denied plaintiff's cross-motion in its entirety.

On August 29, defendant filed a second motion seeking an increase in child support, reimbursement for medial insurance premiums in the amount of $5,885.44, enforcement of the June 20 order requiring plaintiff to reimburse defendant in the amount of $155 per month for plaintiff's share of the children's medical insurance premiums, reimbursement of college expenses defendant had paid on behalf the parties' eldest child, and setting a "pro rate [sic] of college contribution." Plaintiff opposed the motion and, among the arguments advanced in opposition to defendant's motions, was plaintiff's contention that defendant had not provided information regarding her assets and liabilities, he had not received income from employment throughout 2008, his company had been in severe financial distress as a result of its delisting from the Irish Stock Exchange, and that given his employment situation, namely, that he had not received a salary for seven years, defendant was not entitled to an increase in child support. Plaintiff argued further that once he received the court's June 20 order, he started paying $77, representing one-half of $155, as he believed the court's order required him to do. Additionally, plaintiff requested that the court amend the June 20 order to reflect that he was entitled to reimbursement for uncovered medical expenses totaling $683.98. Plaintiff also sought counsel fees for defense of the motion.

The court conducted oral argument on November 21 and orally rendered its decision on November 28. Addressing plaintiff's argument relative to his obligation under the June 20 order to pay $155 per month towards the minor children's medical premiums the court stated:

As far as I am concerned, the language of the June 20th, 200[8] order is clear. It reads, "Mr. Argyriou shall be responsible for one-half of the monthly insurance premiums at $155 per month."

Plaintiff has a copy of the [c]ourt's transcripts, which reads, "He should pay for one-half of the monthly insurance premium or $155 per month." See the transcript on Page 31, Lines 13 through 14. There is no basis as to why the plaintiff is only paying $77.50 or continues to do so even after a review of the transcript in question.

The court next turned its attention to plaintiff's objection to the increased child support award:

In terms of the child support review, the order of June 20th, 2008 required plaintiff to submit a completed case information statement with a balance sheet of family assets and statements of his annual earned income for the years 2002 through 2004, as well as the value of the loan he made to [Bellerophon] Investment Management [Limited].

Plaintiff provides a balance sheet of family assets, but to me it is incomplete. He provides a chart that shows he loaned [Bellerophon] Investment Management [Limited] a total of $49,948 from 2003 through 2006 and the company loaned him a total of $16,528 in 2002.

There are no other documents exchanged between the parties which would prove plaintiff's claim. Plaintiff also has failed to provide his annual earned income for those years when he was earning a salary. Based upon the [c]ourt's transcript[,] the plaintiff had not earned a salary since 2005. But in this current motion[,] plaintiff asserts he has not earned a salary since 2001. See the transcript at Page 29 at Line 29.

It does not appear to me that plaintiff has provided this [c]ourt with any information regarding his finances. He provided the defendant [with] a copy of the [Bellerophon] Investment Management report and financial statement. But there is no proof of his actual income on any of the years listed in the report.

Finally, with respect to plaintiff's contention that he should have been awarded $683.98 for medical expenses he incurred on behalf of the children, as requested in his earlier cross-motion, the court determined that its statement on Page 36, Line 22 of the transcript from the June 20 oral argument granting this relief was a typographical error because the signed order denying the relief was what the court believed to be correct.

On appeal, plaintiff claims the trial court erred when it increased his child support fifty percent without conducting a hearing and also erred when it failed to amend the June 20, 2008 order to conform to the transcript of the proceeding granting his request for reimbursement of medical bills. Additionally, plaintiff claims that because defense counsel represented on the record that the $67 was the correct figure, the trial court erred in imposing $155 as plaintiff's monthly contribution to the minor children's health insurance premiums. Plaintiff also contends that the trial court's conclusion that there was a typographical error in the transcript, as its explanation for why the June 20 order denied reimbursement to plaintiff for uncovered medical expenses in the amount of $683.98, was not reasonable. Finally, plaintiff argues that he is entitled to a remand for a trial on all issues before a different judge.

Other than plaintiff's claim regarding the $683.98 in uncovered medical expenses, we reject all of plaintiff's contentions. We affirm substantially for the reasons expressed by the court in its oral decisions placed on the record on June 20 and November 28, 2008.

Ordinarily, the scope of our review of a trial court's findings of fact 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). As a reviewing court, we will not disturb a trial judge's factual findings and legal conclusions unless 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. Additionally, family courts are given greater deference since they have special jurisdiction and expertise in family matters. Ibid. Defendant submitted documentation in the form of her pay stub, setting forth the monthly deduction for medical insurance premiums. Notwithstanding plaintiff's attorney's representation to the contrary, the court was entitled to accept the documentation submitted by defendant, which was not rebutted by competent evidence from plaintiff.

Next, addressing the increase in child support based upon imputed income to plaintiff without conducting an evidentiary hearing, plaintiff, in accordance with the MSA, agreed that if he were in default of his child support obligations for more than thirty days, his imputed income would be deemed to be $125,000. Although defendant sought to have the court impute $700,000 in income to plaintiff, the court was not persuaded by her proofs. What was, however, not in dispute was that defendant had been in default of his obligation to share in the medical premiums for four years and had failed to submit the appropriate financial information in accordance with the court's June 20 order. Additionally, it was undisputed that plaintiff had been paying $1000 in child support for four years without an adjustment based solely upon the cost of living. See R. 5:6B. The parties, however, negotiated the amount of income that would be imputed to him in their MSA, and plaintiff's conduct triggered enforcement of that provision. Under these circumstances, we cannot conclude that the court's determination to adjust child support upward based upon income imputed to plaintiff in the amount of $125,000 was so "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412.

Finally, regarding the $683.98 in uncovered medical expenses, the November 20 order denied plaintiff's request to conform the June 20 order to its findings. Ordinarily, where there is a conflict between a judge's oral opinion and a subsequent written order, the former controls. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956); see also State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Although the June 20 order denied reimbursement to plaintiff for uncovered medical costs, it is clear from the transcript of the judge's oral opinion that the judge granted this relief:

In his cross[-]motion, plaintiff asks for reimbursement from the defendant for . . . medical care . . . . His medical expenses total $1,672.96 as demonstrated by canceled checks to the medical providers.

. . . .

Plaintiff's cross[-]motion seeks reimbursement from the defendant for her one[-]half share of uncovered medical expenses in the amount of $683.98. These expenses are clearly documented in the plaintiff's certification. . . .

. . . .

The cross[-]motion of plaintiff as it relates to the $683.98 of medical expenses to be paid by him by the defendant [sic] is granted.

From this language, it is evident that the error was substantive not typographical. The court's reasoning in the June 20 transcript supports no other conclusion. Therefore, the court's denial of plaintiff's request to conform the June 20 order to the transcript of the proceedings from the same date was clearly erroneous and warrants reversal.

 
Remanded for the entry of an amended judgment ordering defendant to reimburse plaintiff $683.98 for uncovered medical expenses. The orders of June 20 and November 28, 2008 are otherwise affirmed. We do not retain jurisdiction.

(continued)

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11

A-2974-08T1

July 2, 2010