JO-ANN MURRAY DIANA v. JAMES DIANA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3546-08T23546-08T2

JO-ANN MURRAY DIANA,

Plaintiff-Appellant,

v.

JAMES DIANA,

Defendant-Respondent.

___________________________

 

Argued December 8, 2009 - Decided

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-26302-88.

Mona F. Ressaissi argued the cause for appellant (Margolin & Neuner, attorneys; Ms. Ressaissi, on the brief).

Beverly A. Plutnick argued the cause for respondent.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff appeals from the provisions of the November 21, 2008 order of the Family Part modifying defendant's child support obligation for the parties' daughter and denying her request for counsel fees; she also appeals from the February 27, 2009 order denying her motion for reconsideration. We reverse and remand.

The child support issue relates to defendant's obligation during the daughter's college years which commenced in the Fall of 2004. At that time defendant's child support obligation was $180 per week. The parties' Property Settlement Agreement (PSA) incorporated into their October 26, 1988 judgment of divorce, provides that

while the child is enrolled in college, [plaintiff] will be entitled to full child support payments for the child for any week(s) that said child is on summer, winter or spring breaks. [Defendant] . . . agrees that while said child is in residence at college, he shall continue to pay to [plaintiff] a reduced amount of child support to cover her fixed incidental expenses for the child.

More than fifteen years later, the parties entered into a consent order providing in part, that: (1) defendant's child support obligation would be "reduced by $15.00 per day when [the daughter] is residing on campus at [college]"; (2) plaintiff "shall provide . . . defendant with a copy of the [college] academic calendar which can also be accessed on the [college] [w]ebsite"; (3) defendant "shall secure the attendance information from [the daughter] directly so as to be sure of its accuracy"; (4) defendant "agrees to make the necessary arrangements to pay his agreed share of their daughter's college educational expenses so as to avoid any late payment fees and potential credit problems"; (5) defendant "agrees to make his future child support payments through the appropriate Probation Department"; and (6) plaintiff "shall cooperate and provide all required information to the Probation Department as necessary so that . . . defendant may receive the appropriate reductions to his child support payments for those days when [the daughter] is residing on campus[.]"

Three years later, defendant filed a motion seeking to declare the parties' daughter emancipated and terminating his child support obligation. Defendant requested oral argument on his motion. Plaintiff filed a cross-motion seeking payment of the more than $6,000 in child support arrearages she alleged were due, as well as a cost of living adjustment (COLA) to defendant's child support obligation. She also asked for oral argument if her motion were opposed.

Plaintiff certified that the parties' daughter was currently student teaching as part of her course work as a full-time college student and, therefore, was not yet emancipated. According to plaintiff's papers, the records of the Probation Department were not accurate because of confusion with respect to the per diem reduction in child support provided in the parties' earlier consent order.

Plaintiff appended payment records from the Probation Department and included her calculations based upon those records. Those calculations led to an arrears amount of $6,325.01, rather then a credit as reflected in the Probation Department records.

Plaintiff further noted that she had recently received a COLA on the child support, but that adjustment was based on the $75 weekly amount rather than $180 amount; therefore, she requested proper application of the COLA.

Finally, plaintiff sought counsel fees, claiming that defendant knew that he was in arrears but had refused to make any effort to rectify the situation.

Defendant certified in opposition that he was "never notified that the amounts the Probation Department w[as] deducting from [his] pay were incorrect, as alleged by . . . plaintiff. . . . [P]laintiff did not provide [him] with [the daughter's] school schedule as it was represented in the Consent Order of October 5, 2005 that she would do." Therefore, defendant stated that he had "no idea whether [the daughter] was actually home or at school during any particular week unless [he] was informed of it by either . . . plaintiff or [the daughter]." Defendant claimed that this "is the first time that [he has] been notified by plaintiff, or anyone, that the child support which was deducted from [his] pay is allegedly incorrect."

In fact, defendant certified, it was his "impression . . . that [he] had actually over-paid on [his] child support, which is why [he] filed this [m]otion when [he] did so that [he] would not be further over-paying on [his] child support obligation."

The trial judge, despite the requests for oral argument, decided the motions on the papers and on November 21, 2008, issued an order denying defendant's motion to emancipate the parties' daughter and to terminate his child support obligation and further ordering:

Effective October 9, 2008, defendant shall pay child support in the amount of $180 (plus COLA on this amount) per week until the child is emancipated, which shall be deemed to be the date of the child's graduation from college.

Probation is directed to apply the overpayments in defendant's child support account towards the revised obligation. Thereafter, Probation is directed to resume collection of $180 per week (as modified by the COLA) until February 1, 2009 via wage garnishment.

Effective February 1, 2009, [the daughter] shall be deemed emancipated, and defendant's child support obligation shall be terminate[d] on that date.

In all other respects, defendant's motion and plaintiff's cross[-]motion are denied.

The judge gave the following reasons for her decision regarding child support:

Pursuant to the PSA the parties agreed that child support would be set at $180 per week while [the daughter] resided with plaintiff. It is undisputed that [the daughter] now resides with plaintiff. Therefore, effective October 9, 2008, when plaintiff filed her cross-motion, defendant shall pay child support in the amount of $180 plus a COLA on that amount. Plaintiff, however, cannot seek to recalculate child support retroactively to address the alleged issues with Probation. A party cannot delay enforcement of a known right to the prejudice of another. Therefore, defendant's overpayments shall be applied initially towards his outstanding obligation.

Plaintiff filed a motion for reconsideration on December 15, 2008, contending that the trial judge "overlooked that there was a child support order in this matter entered on October 5, 2005[,]" and that she "did not seek to recalculate child support," rather she was "simply enforcing said previous order." Plaintiff further asserted that defendant suffered no prejudice as he "was fully aware of his child support obligation." Once again, plaintiff requested oral argument only in "the event opposition is received . . . ."

On January 2, 2009, defendant filed a cross-motion seeking denial of plaintiff's motion for reconsideration and requesting an award of counsel fees. Defendant certified that it was plaintiff's burden to inform the Probation Department "regarding the amounts that were supposed to be paid by [him]." In a reply certification, plaintiff contended that defendant was not "entitled to have his child support obligation retroactively reduced to $75 per week" just because she "was unable to get Probation to correct their mistake . . . ." Plaintiff further asserted that she had "done everything in [her] power, short of filing a motion, to adjust the Probation account."

On February 27, 2009, the trial judge, again without oral argument, entered an order denying both motions. In her statement of reasons, the judge noted:

Plaintiff has failed to establish that the [c]ourt overlooked facts or controlling decisions. She simply disagrees with this [c]ourt's conclusions. . . .

. . . .

The [c]ourt decided this motion on the papers because the parties' submissions are clear about their disputes and oral argument would not have advanced the [c]ourt's understanding of these matters or provided an expeditious resolution of the parties' disputes. The parties' oral arguments would be limited to the matters set forth in their written submissions.

On appeal, plaintiff contends that the trial judge erred by (1) not enforcing the parties' consent order, (2) holding that "defendant would be prejudiced by the enforcement" of that consent order, (3) "retroactively modifying the . . . consent order . . . , reducing defendant's obligation to $75 per week . . . without a request from either party to do so," and (4) denying her counsel fee request.

We concur with plaintiff that her October 2008 cross-motion sought enforcement of the 2005 consent order and, therefore, the trial judge erroneously ruled that the doctrine of laches barred plaintiff from "recalculat[ing] child support retroactively . . . ." Laches is an equitable principle that may bar a party from relief where there has been a "delay for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." W. Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 153 (1958).

Defendant was at all times aware of the nature of his child support obligation pursuant to the consent order. Furthermore, that order obligated him to secure the college attendance information directly from his daughter "so as to be sure of its accuracy . . . ." The fact that the Probation Department may have erroneously implemented the terms of that consent order does not entitle him to invoke laches against proper enforcement of that order.

It is well established that child support "belongs to the child . . . ." Pascale v. Pascale, 140 N.J. 583, 591 (1995) (citing Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993)). "Since welfare of children is a paramount concern, a public policy conflict arises from the application of the equitable doctrine of laches to a demand for child support." L.V. v. R.S., 347 N.J. Super. 33, 40 (App. Div. 2002) (citing Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div. 1992)). "For this reason the application of laches to matters of" child support and custody has "been carefully circumscribed[,]" id. at 41, and applicable only in extraordinary circumstances none of which pertains here. See e.g., State v. Volk, 280 N.J. Super. 57, 60 (App. Div. 1995) (child support application of mother who moved to Virginia with the child and first filed for support in Virginia nine years after the child's birth barred on the ground of laches); Moore v. Hafeeza, 212 N.J. Super. 399, 405 (Ch. Div. 1986) (plaintiff's action for child support filed fifteen years after dismissal of the same claim filed by Board of Social Services "barred under the principles of res judicata[,] collateral estoppel" and laches.)

 
We therefore reverse and remand this matter for oral argument and a hearing, if necessary, to resolve the issue of the proper calculation of child support due. We do not retain jurisdiction.

Reversed.

(continued)

(continued)

2

A-3546-08T2

 

May 25, 2010