JOYCE C. GOORE v. HAMLET E. GOORE, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3788-10T4

JOYCE C. GOORE,

Plaintiff-Respondent,

v.

HAMLET E. GOORE, JR.,

Defendant-Appellant.

________________________________________________________________

October 21, 2011

Argued September 27, 2011 - Decided

Before Judges Carchman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-9473-83.

Andrew M. Epstein argued the cause for appellant (Lampf, Lipkind, Prupis & Petigrow, P.A., attorneys; Mr. Epstein, on the briefs).

Joyce C. Goore, respondent, argued the cause pro se.

PER CURIAM

Defendant Hamlet E. Goore appeals from a series of post-judgment matrimonial orders that set his child support and alimony arrears at $102,350, required him to pay $500 per month to satisfy the arrearage, and denied his motion to reduce or eliminate his child support obligation for the parties' developmentally disabled adult daughter, H.G., in light of the considerable Social Security Disability (SSD) benefits that H.G. receives monthly.1 Having thoroughly reviewed the record and the parties' arguments, we agree with defendant's contention that the judge: wrongly accepted the Hudson County Probation Department's (Probation) calculation of the arrearage without making an independent determination of whether the Probation audit was correct; and failed to make any findings of fact or conclusions of law on whether the SSD benefits received by the parties' daughter should have an impact on defendant's child support obligation. We reverse the orders under review and remand for further proceedings.

I.

Although defendant was divorced from plaintiff Joyce Goore by a decree issued on August 2, 1985, the judgment of divorce (JOD) did not make any provision for the payment of alimony or child support. An amended JOD was issued on February 20, 1986, which incorporated a property settlement agreement reached by the parties. The February 20, 1986 judgment required defendant to pay to plaintiff the aggregate sum of $2000 per month, of which sixty percent ($1200/month or $277.14/week) was designated as alimony and forty percent ($800/month or $184.76/week) was designated as child support. The portion designated as child support was to be equally divided among the three children until their emancipation. The amended JOD provided that alimony was to continue for only thirteen years, until January 21, 1998. The judge ordered that all payments were to be made through the Probation Department in the county in which defendant resided.

On November 2, 1994, defendant moved before the Family Part for a reduction of his alimony obligation in light of a reduction in his income. On May 2, 1995, the judge granted defendant's motion in an order that provided:

1. The defendant is temporarily ordered to pay the plaintiff the sum of $150.00 without prejudice per week alimony effective November 4, 1994.

2. This matter is carried to May 2, 1995 for review of the emancipation status of the parties' three children and the parties' changed circumstances.

3. The parties shall answer the interrogatories previously served upon the other and may exchange and shall answer such additional interrogatories either party finds necessary dealing with the emancipation status of the parties' three children, ear[n]ings[.][2]

The "temporary" reduction in alimony ordered on May 2, 1995 was still in effect on May 31, 1996, when defendant moved to suspend his alimony obligation due to a $9000 federal income tax lien, as a result of which there was a garnishment of $421 from his wages every two weeks. Plaintiff cross-moved to compel defendant to pay the support arrearages in full, on penalty of arrest if he failed to do so. During the May 31, 1996 hearing, when denying plaintiff's motion, the judge stated:

I have had this case for probably five or six years. I know it used to be $2000 [in alimony and child support per month]. I know it's [now] $150 a week [for alimony]. I also know that I don't have the financial ability to pay the amount [sic]. You want me to reduce [it to] judgment and issue a warrant for his arrest[, but] the relief you've sought is just not there to be granted. And even though you made the appropriate . . . cross-motion for that, for you to suggest to me that I order him to pay a fixed amount in the thousands of dollars or put him in jail, I can't grant. The facts just don't allow it.

When plaintiff asked the judge during the May 31, 1996 motion hearing whether he would "ever . . . deal" with the arrearages, the judge stated he would not do so "until [defendant's] circumstances change. . . . I just don't see any way to deal with it at the moment." The judge entered a confirming order on August 20, 1996 continuing defendant's alimony obligation at $150 per week via a wage garnishment "until further order of the Court." Additionally, the judge ordered defendant to transfer ownership of a mutual fund, which defendant's mother had established for the joint benefit of defendant and H.G., "to the plaintiff . . . to satisfy past due arrears." The order provided that defendant would receive a credit for the value of the mutual fund being transferred to plaintiff.

According to the record, neither party sought to modify the alimony payment or enforce the collection of arrearages for fourteen years. In May 2010, defendant moved to: terminate his alimony and child support obligation; discontinue the collection of alimony and child support arrears; obtain a credit or a reimbursement for any overpayment of alimony and child support; and compel an audit by the Essex and Hudson County Probation Departments of all child support and alimony he had paid. The judge conducted five hearings, on June 11, September 15, and December 3, 2010 and January 21 and March 18, 2011.

At the hearing on June 11, 2010, the judge correctly recognized that, in accordance with the amended JOD, defendant's alimony obligation lasted for only thirteen years, from January 21, 1985 through January 21, 1998. However, the judge calculated defendant's alimony obligation during that thirteen-year span at the original figure of $277 per week, without taking into consideration the order of May 2, 1995, which reduced defendant's alimony obligation to the sum of $150 per week. The June 11, 2010 order stated that "[t]he amount of alimony for the 13 yr. duration is $187,200," based upon $277 per week for the thirteen years.

Additionally, the judge ordered each party to provide a statement showing all amounts paid for alimony, so as to deduct that figure from the $187,200 total alimony obligation. Using that method, the amount of any alimony arrears or any overpayment could be determined. The judge reminded the parties to deduct from defendant's total alimony obligation the value of the mutual fund that had been transferred to plaintiff. Finally, the judge ordered plaintiff to provide a statement detailing the SSD benefits and any other sources of income she received on behalf of H.G. so that defendant's possible entitlement to a modification of his child support obligation for H.G. could be determined.

At the September 15, 2010 hearing, the parties were unable to provide the information the judge had requested at the June 11, 2010 hearing. He ordered them to calculate defendant's alimony arrears, if any, using payment records from the Hudson County Probation Department.

In October 2010, the parties submitted their respective calculations of the amounts paid by defendant to plaintiff between January 1993 and July 2010. Although the previous proceedings had focused on defendant's alimony obligation, the judge appears at this juncture to have expanded the analysis to also include child support. By letter dated October 7, 2010, defendant maintained that he had paid $77,662 through the Essex County Probation Department, $85,054 through the Hudson County Probation Department, and $9000 through the transfer of the mutual fund to plaintiff. He claimed to have paid a total of $171,716.43, leaving him with an unpaid balance of $15,483.57. The latter figure was based upon the $187,200 total alimony obligation the judge calculated in his June 11, 2010 order. However, it is unclear from defendant's October 7, 2010 submission whether the $171,716.43 he claimed to have paid from 1993 through 2010 was strictly for alimony, or whether defendant's accounting of his total payments also included child support.

In a response filed with the court on October 12, 2010, plaintiff challenged defendant's accounting. Although her calculation of the total amount defendant paid between January 1993 and July 2010 was nearly identical to defendant's submission,3 her calculation of his alimony arrearage differed markedly because she claimed that, of the $161,274 defendant had paid between 1993 and 2010, $78,490 was attributable to child support. By plaintiff's accounting, defendant owed her the sum of $120,775 in arrears as of July 2010, while defendant claimed his arrears were limited to $15,483.

Having received vastly divergent calculations from the parties, the judge scheduled the matter for a hearing on December 3, 2010. By then, defendant maintained that he had overstated the amount of his arrears, contending that the balance was only $8493. At the conclusion of the December 3, 2010 hearing, the judge directed the parties to meet individually with Probation to review its official records.

By the time of the next hearing on January 21, 2011, the judge had received calculations from the parties that were $112,000 apart. Rather than afford the parties an opportunity to present their respective positions, the judge announced that he intended to accept Probation's calculations and to fix the arrears in the amount Probation had calculated in its audit report. As soon as the parties entered the courtroom, the judge announced his ruling as follows:

Okay. I want everybody to sit down and listen. Probation has done the report that we have asked them for from Hudson County and it has been extremely thorough and they did it from 1993 to the present. They have established by that audit what the arrears are for both child support and spousal support and the Court is going to fix those arrears under the order.

Although defendant had submitted a letter to the judge the day before the January 21, 2011 hearing disputing Probation's calculation of his arrears, the judge declined to consider the letter and instructed defendant to file a formal motion. Stating, "we've done this for months now," the judge ruled that the calculations made by Probation would be "the number we're going to use." The judge asked plaintiff to suggest a monthly arrears payment that defendant be ordered to make. When she answered "$500 a month," the judge accepted her suggestion, warning defendant that if he missed "a single payment," the entire amount would be accelerated.

In a January 21, 2011 confirming order, the judge fixed the actual amount of the arrears at $102,350.14. The order provided:

The court has established that the Hudson County Probation Audit Report is correct on both child support and alimony, and the arrears are fixed at $102,350.14 in accordance with the audit report.

The order did not specify how much of that sum was attributable to alimony and child support, respectively. The order also directed defendant to pay $500 per month toward the arrears.

Defendant moved for reconsideration on February 9, 2011, urging the court to: vacate the January 21, 2011 order; hold in abeyance all of the $500 payments made by him as a result of the January 21, 2011 order; allow him to engage in discovery concerning the needs of H.G., as well as any SSD or other governmental benefits she was receiving; and apply any alimony paid after January 21, 1998 as a credit against the child support for H.G.

At the March 18, 2011 hearing on defendant's motion for reconsideration, defendant argued: 1) "the court overlooked the fact that [H.G.], the disabled child of the[] marriage, has been getting Social Security income and also has assets" and therefore child support for H.G. should have been reduced; 2) the Probation Department audit had improperly continued to charge him $150 per week for alimony through June 2010, even though his alimony obligation had ended after thirteen years after the divorce, on January 21, 1998; 3) Probation's failure to halt his alimony obligation after January 1998 had caused Probation to arrive at a grossly inflated arrearage calculation; 4) the Probation Department audit, without any explanation, had improperly increased defendant's child support obligation from $62 per week, to $156 per week, on September 5, 2003; and 5) the court had never afforded him the opportunity to challenge the Probation calculations and therefore a plenary hearing should be held.

The judge rejected defendant's arguments in their entirety. He ruled that although defendant's monthly alimony obligation terminated on January 21, 1998, the May 2, 1995 order that reduced the monthly alimony payment to $150 per month did not extinguish defendant's obligation to pay the original amount of $277.14 per week; it merely held the $127.14 differential in abeyance. As a result, $127.14 monthly payments accrued from May 2, 1995 through January 21, 1998, and Probation was entitled to charge defendant at the rate of $150 per month until the entire $127.14 monthly differential was satisfied. Additionally, and for the first time, the judge ruled that, should plaintiff predecease defendant, any alimony arrears owed her would be payable to her estate.

When defendant's attorney attempted to persuade the judge that there were substantial errors in the audit report prepared by Probation, the judge rejected her argument, stating:

Well, I can't correct things from a decade ago, quite honestly. So, Probation has to be the final determiner as to what monies were paid and owed. They have to be that. I'm not the record-keeper.

The judge suggested that defendant attempt to convince Probation that its audit report was incorrect but "my order as entered remains intact. To have him pay $500 [in arrears]. And, that's what it is and that's unchanged."

On appeal, defendant argues:

I. THE LOWER COURT ERRED IN FIXING DEFENDANT-HUSBAND S ALIMONY ARREARS AND IN IMPOSING AN ALIMONY ARREARAGE PAYMENT OBLIGATION ON THE BASIS OF ALIMONY PAYMENTS DEFENDANT-HUSBAND WAS NOT OBLIGATED TO MAKE.

II. THE LOWER COURT ERRED BY CONTINUING DEFENDANT-HUSBAND S $180/WEEK CHILD SUPPORT OBLIGATION IN EFFECT WITHOUT HOLDING A HEARING AND MAKING FINDINGS AS TO THE EFFECT OF THE CHILD S INCOME AND ASSETS ON THE AMOUNT DEFENDANT SHOULD BE PAYING.

III. THE LOWER COURT ERRED IN DENYING DEFENDANT-HUSBAND S MOTION FOR RECONSIDERATION.

II.

The scope of appellate review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. "Furthermore, matrimonial courts possess special expertise in the field of domestic relations." Id. at 412. It stands to reason, however, that when a determination made by a Family Part judge is not based upon "adequate, substantial, credible evidence," ibid., no deference is owed.

In Point I, defendant maintains that the judge erred in the calculation of his alimony arrears because the judge wrongly accepted Probation's audit report at face value and overlooked a major error in Probation's findings. In particular, defendant notes that Probation continued to charge him $150 per week from January 21, 1998 through December 31, 2010, even though the parties' amended JOD specified that defendant's alimony obligation would come to an end on January 21, 1998. Defendant argues he was improperly assessed a total of $100,950, with a resulting alimony overpayment by $14,599, excluding the $500 per month arrears payments the judge ordered on January 21, 2011.

As we have noted, during the hearing on defendant's motion for reconsideration, the judge ruled that even though the May 2, 1995 order reduced defendant's alimony payment to $150 per month based upon a change of circumstances, that reduction did not extinguish defendant's obligation to pay the original amount of $277 per week, and the $127 difference continued to accumulate as an arrearage. We reject the judge's interpretation of the May 2, 1995 order for several reasons. First, neither the judge nor plaintiff cited anything in the record of the May 2, 1995 proceedings to justify the conclusion that the $127 differential would continue to accumulate. Although the order contains a reference to further discovery concerning "emancipation" and "earnings," nothing in the record supports the judge's finding that the $127 weekly differential would continue to exist. At most, the order can be interpreted as suggesting that defendant's alimony obligation might be reinstated to its prior level of $277 per week if circumstances so warranted. In the absence of any record support for the judge's finding, it cannot be accepted. Had the judge intended such a result, it stands to reason that the judge would have said so directly. He did not.

For these reasons, we reject the judge's determination that the May 2, 1995 order reducing defendant's alimony obligation to $150 per week resulted in the continuation of the accumulation of the $127 monthly differential. Because that assumption played a major role in the judge's acceptance of the Probation audit report, the judge's acceptance of that report was error. We vacate the portions of the January 21, and March 18, 2011 orders that found defendant $102,350 in arrears on his child support and alimony obligations.

III.

In Point II, defendant argues that the judge erred

by denying his motion to reduce or eliminate his child support obligation for H.G., in light of the considerable financial support she receives from the federal government in the form of SSD. Defendant argues it was error to require him to continue to pay $180 per week for H.G. without making specific findings as to H.G.'s financial situation and overall needs. If a dependent child for whom the non-custodial parent pays child support receives benefits from the State or federal government, the child support order must be reduced in an amount commensurate with the government benefits received. Herd v. Herd, 307 N.J. Super. 501, 503 (App. Div. 1998); see Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2503-04 (2012).

In light of our decision in Herd and the unambiguous instruction provided in Appendix IX-A to Rule 5:6A, we conclude defendant is correct that the judge was obligated to consider the SSD and other governmental benefits H.G. receives. Plaintiff conceded that H.G. receives $899 per month in SSD. The record suggests that H.G. may also be receiving additional benefits from the New Jersey Department of Human Services, Division of Developmental Disabilities, and may have a partial ownership interest in one or more properties. In view of Herd, we conclude the judge erred when he continued defendant's child support obligation for H.G. in the amount of $180 per week without making any findings or determinations as to H.G.'s overall financial need and whether such need was satisfied, in whole or in part, by the government benefits she was receiving. We vacate the portion of the March 18, 2011 order that denied his motion to reduce or eliminate his financial obligations to H.G. and continued defendant's child support obligation in its current amount.

In Point II, defendant further argues that the judge erred when he chose to accept the audit report's finding that defendant's child support obligation for H.G. should be increased by 150%, effective September 5, 2003. As we have noted, the Probation audit report reflects a child support obligation in the amount of $62 per week through September 4, 2003 and a child support obligation of $156 per week commencing September 5, 2003. Plaintiff urges us to accept that increase as a cost-of-living adjustment (COLA) authorized by Rule 5:6B(b). That Rule specifies that child support orders "entered, modified, or enforced on or before August 31, 1998 shall be prospectively subject to adjustment every two years to reflect the cost of living." R. 5.6B(b). The Rule also specifies that before a COLA is applied, the obligor shall be provided notice of the proposed adjustment and afforded an opportunity to contest the adjustment within thirty days of the mailing of the notice. R. 5:6B(d). The record is devoid of any evidence establishing that defendant was either notified of the proposed COLA or afforded an opportunity to challenge it. Of greater importance, the record is devoid of any judicial order approving such a COLA.

Even if we were prepared to overlook these two irregularities, which we are not, we are also unwilling to accept the proposition that the cost of living would have increased by an aggregate total of 150% ($62 per week versus $156 per week) between August 31, 1998 and September 4, 2003. We vacate the portion of the March 18, 2011 order that continued defendant's child support obligation at $180 per week4 and remand for further proceedings.

On remand, the judge shall calculate H.G.'s financial needs, see N.J.S.A. 2A:34-23(a)(7), and shall determine whether, and to what extent, defendant shall be required to pay any further child support in light of the SSD and other governmental benefits H.G. receives. To the extent that the $102,350.14 arrearage calculation includes the increase in child support that became effective on September 5, 2003, it is vacated. If the judge concludes that defendant's child support obligation should be eliminated or reduced, defendant shall be entitled to a credit for payments after May 7, 2010, the date he filed his motion. See N.J.S.A. 2A:17-56.23a (specifying that retroactive modification of child support shall be permitted only back to the date the motion was filed).

IV.

In Point III, defendant argues that the judge erred in denying his motion for reconsideration. Because we have already considered and accepted the claims defendant has advanced concerning the alimony and child support arrears, we need not consider defendant's reconsideration argument in any depth. We merely note that the motion for reconsideration should have been granted, as both the orders concerning alimony and child support arrearage and defendant's ongoing child support obligation for H.G. were improperly entered. See R. 4:49-2.

V.

We now summarize the scope of the remand proceedings. As to alimony, the judge shall make findings of fact on the following questions: 1) the total amount of alimony defendant was obliged to pay between January 21, 1985 and May 2, 1995, based upon the rate of $277.14 per week, as set forth in the amended JOD; 2) the total amount of alimony defendant was obliged to pay between May 2, 1995 and January 21, 1998, based upon the reduced rate of $150 per week that was established by the May 2, 1995 order, without treating the $127.14 weekly differential as an arrearage; and 3) the total amount of alimony defendant actually paid between January 21, 1985 and March 31, 2011, including the value of the mutual fund that was transferred to plaintiff.

As to child support, the judge shall make findings of fact on the following questions: 1) based upon the rate of $62 per week as specified in the JOD, the amount of child support defendant was required to pay for H.G. from January 21, 1985 through August 31, 1998, the date when the COLA provisions of Rule 5:6B(b) became effective; 2) using the base figure of $62 per week, the amount of child support defendant was obliged to pay for H.G. between August 31, 1998 and May 2010, when he filed his motion to eliminate child support, with an adjustment made to the base figure by applying the periodic COLA assessments required by Rule 5:6B(b); 3) for the period between May 2010, when defendant filed his motion to discontinue child support, and the present, the judge shall determine whether defendant should have any support obligation for H.G. in light of the governmental benefits she was receiving, and if so, in what amount; 4) the total amount of child support defendant was obliged to pay for H.G. between January 1985 and the present, based upon all of the factors we have identified in this paragraph; and 5) the amount of child support he actually paid for H.G. from January 1985 to the present.5

If there is any alimony or child support arrearage, the judge shall enter an appropriate order. However, before entering such order, the judge shall give defendant a credit for any alimony or child support overpayment if the judge finds there has been one. If there is no net arrearage, and if there has been instead a net overpayment, the judge shall determine whether plaintiff should be ordered to reimburse defendant, and if so, the judge shall establish an appropriate schedule for doing so.

Reversed and remanded for further proceedings consistent with this opinion.

1 The orders in question incorrectly reverse the designation of the parties as plaintiff and defendant. We utilize the designation as reflected in the judgment of divorce.

2 The words "and assets" follow the word "earnings," but are crossed out.

3 Plaintiff maintained that defendant had paid $161,274 between January 1993 and July 2010 while defendant, as we have noted, claimed to have paid a total of $162,716, exclusive of the value of the mutual fund.

4 Further cost of living adjustments were apparently applied after 2003, increasing the weekly child support order to $180.

5 The parties disagree on when their other two children were emancipated, in either 1994 or 1996. Defendant's child support obligation and his payment record for those two children should be considered as well.