KENNETH MULLARNEY v. KRISTEN MULLARNEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5706-10T1

KENNETH MULLARNEY,

Plaintiff-Respondent,

v.

KRISTEN MULLARNEY (n/k/a

Williams).

Defendant-Appellant.

_______________________________________

October 24, 2012

Submitted May 29, 2012 - Decided

Before Judges A. A. Rodr guez and Ashrafi.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth

County, Docket No. FM-13-1952-98.

Kristen Williams, appellant pro se.

Law Office of Ira M. Senoff, L.L.C., attorney for respondent (Mr. Senoff, of counsel; Krysta Berquist, on the brief).

PER CURIAM

In this appeal from an order on post-divorce motions, we follow up on issues we discussed in a prior decision addressing child support obligations when the parties' teenage daughter moved from one parent's house to the other's. Mullarney v. Mullarney, Docket No. A-0980-09 (App. Div. Nov. 30, 2010). Defendant-mother, Kristen Williams, appeals from an order requiring that she reimburse plaintiff-father, Kenneth Mullarney, a total of $2,713.14, and also to pay $500 toward his attorney's fees. We affirm.

The marriage was of short duration, the parties separating one year after their only child's birth in 1994. They divorced in 1999, a marital settlement agreement being incorporated into the judgment of divorce. Their daughter lived with mother until May 2009, at which time the parties agreed that she would move to father's house with the intent to improve her school grades. Several months later, mother agreed to reimburse father for any of his child support payments collected by the Probation Department and paid to her after August 1, 2009.

When mother failed to keep her promise, father filed a motion on September 8, 2009, for change of custody, termination of his child support obligation as of the date of the daughter's move in May, and child support to be paid by mother. On September 25, 2009, the Family Part heard argument and entered an order granting temporary custody of the daughter to father for one school year, suspending his child support obligation as of the September 25 date of the order, and obligating mother to pay three dollars per week child support. Id. slip op. at 4-5. Father appealed, arguing primarily that he should receive reimbursement of child support dating to May 2009 when the parties agreed that the child would live with him.

In our prior opinion, we affirmed the Family Part's rulings in part but reversed and remanded to fix a date for termination of father's child support obligation of either August 1, 2009, when both parties had allegedly agreed to the change in child support, or September 8, 2009, the date on which father's motion had been filed. Id. slip op. at 11-12.

After the remand, neither party immediately sought relief from the Family Part. In May 2011, the daughter's last year of high school, father and daughter had a serious argument about her school grades. Because of her poor performance, father took away her Blackberry. Daughter's intransigence led father and his wife to ask her to leave their house. Daughter left and stayed at a friend's house for one night. She communicated with her mother by text message and phone calls, stating that she could not live with her father. Mother was in agreement with daughter's wishes to drop out of high school. Eventually, mother, father, and father's wife all agreed that daughter would no longer live at father's house but instead would move back to mother's house.

When mother came to pick up the daughter, father presented her with a form consent order prepared by his attorney. The order stated the parties had agreed that daughter would be emancipated immediately and that child support obligations would be terminated. The recitations of the order indicated the parties' understanding of their rights to ask the court to consider issues pertaining to their daughter and their voluntary agreement to the terms of the order. According to mother, however, father compelled her to sign the form consent order as a condition of taking daughter and her belongings back to her home. On May 17, 2011, a Family Part judge executed the consent order emancipating the daughter and terminating child support.

Before she received a copy of the executed consent order, mother filed a pro se handwritten motion on May 31, 2011. On the notice of motion, she checked off four items of relief that she was seeking: (1) decreasing child support payments, (2) change of custody arrangements, (3) change of visitation arrangements, and (4) emancipation of the child. In the body of the motion, mother wrote that she wanted to "emancipate [daughter] from father." She also stated she was seeking "custody until she turns the age of 18 . . . [and daughter] wishes not to ever see Mr. Mullarney again . . . ."

Father filed a cross-motion seeking to compel mother to reimburse him $2,180 for overpayment of child support and $533.14 for her share of unreimbursed medical expenses of the child. Father also asked that the court deny mother's motion and charge her with his attorney's fees for having to file the motion to enforce his monetary entitlements. In response to the cross-motion, mother filed an unsworn document on June 16, 2011, stating her version of events leading up to the motions. She stated further that she viewed matters to have been resolved between the parties by the filing of the consent order, a copy of which she received after filing her motion, and that she wished to withdraw her motion. Father's attorney wrote to the court that father did not agree to withdraw his cross-motion for reimbursements and attorney's fees.

On June 24, 2011, the Family Part entered an order requiring that mother pay father within thirty days $533.14 for unreimbursed medical expenses, $2,180 for overpaid child support, and $500 in attorney's fees. The order stated that father could apply for a bench warrant for her arrest if she failed to comply. In a statement of reasons attached to the June 24th order, the Family Part judge indicated that he relied on a provision of the parties' marital settlement agreement requiring equal sharing of unreimbursed medical expenses and that he had fixed August 1, 2009, as the date which terminated father's child support obligation in compliance with our prior decision and remand.

Mother filed a timely notice of appeal from the June 24, 2011 order. In her pro se brief on appeal, mother argues:

POINT I

The lower court erred as a matter of law by failing to not look at whether the medical bills were paid by the plaintiff of the child's health benefits. There were no canceled checks shown or an EOB given. (Explanations of benefits) The court Erred by not looking into this matter as to who paid these medical bills.

POINT II

The court Erred as to the effective and proper date of the modification [of father's child support obligation]. The proper date should be September 8th as to when the modification was filed.

POINT III

The court Erred as to placing a strict allotment time to reimburse any money awarded to the plaintiff as a 30 day window of time is unreasonable.

POINT IV

The court Erred to look at the defendant's financial case information statement and find that any legal bills that the plaintiff acquired.

POINT V

The court Erred in allowing a minor child to be emancipated when not requesting such and while still in college.

We will briefly address each of these arguments.

With respect to the child's medical expenses, father provided cash register receipts or billing statements indicating numerous payments of relatively modest medical charges. He also sought reimbursement of half the dental insurance premiums he was paying for the daughter. The Family Part judge reviewed the documents and found that father incurred the expenses for which he sought one half reimbursement. We have also reviewed the documents supporting father's claim, and we find no error in the Family Part's order requiring mother to comply with the terms of the marital settlement agreement and to reimburse father for her share of medical expenses he incurred.

As to reimbursement of overpaid child support, mother cites N.J.S.A.2A:17-56.23a as prohibiting retroactive modification of child support. We fully addressed that issue in our prior opinion and explained why under circumstances where parties voluntarily agree to an earlier modification of child support, their agreement can be enforced. Mullarney, supra, slip op. at 7-8. The Family Part judge did not err in following our previous direction and choosing August 1, 2009, as the date of the parties' agreement and, therefore, the date that terminated father's child support obligation.1

Next, we find no abuse of discretion in the Family Part requiring mother to make the payments within thirty days. Mother claims that she cannot afford to pay the sums ordered because she earns only $250 per week. Father responds that her earnings as a hairdresser are significantly more than the amount she has declared, as evidenced by her personal spending habits and travel. We make no determination of either party's financial circumstances on this record. We note that almost two years had elapsed from the time that mother received child support payments to which she was not entitled and that she had agreed to pay back to father. Mother should not have kept the overpayments of child support, and she had time to plan for repayment. In the event that father attempts to enforce the thirty-day provision, mother may yet seek relief from the Family Part. The court may be more inclined in that regard if she has made good faith efforts to make periodic payments to father.

Mother's fourth argument is apparently directed at the requirement that she reimburse father $500 of his attorney's fees for the 2011 motions. She contends she originally filed her pro se motion because she had not received a copy of the consent order and she was seeking to obtain court approval of the 2011 change in the daughter's custody status. In response, father argues that he was compelled to file a cross-motion in aid of litigant's rights for reimbursement of his overpaid child support because mother had made no effort since our prior opinion in November 2010 to reimburse him for overpaid child support. In fact, even her checks for payment of three dollars per week in child support owed by her were periodically being rejected because of insufficient funds, causing father to incur bank charges.

The Family Part judge recited mother's failure to communicate with father as responsible for his having to incur attorney's fees in post-judgment litigation. The judge also viewed the mother's pro se motion, later withdrawn, as unnecessary litigation that could have been avoided. We find no abuse of the Family Part's discretionary authority under Rule 5:3-5(c) to make a modest award of attorney's fees to father. See Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).

Finally, mother challenges the Family Part's May 17, 2011 consent order that emancipated the daughter. However, neither her notice of appeal nor her case information statement made reference to that order. We do not consider orders from which an appeal was not properly taken. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001).

In addition, mother had the opportunity to argue to the Family Part that she did not sign the consent order voluntarily. Instead, she chose not to pursue that claim, and she withdrew her motion. In fact, her pro se motion confirmed that she was seeking emancipation of the child. We have an insufficient appellate record by which to assess the validity of mother's claims that the emancipation order was improperly executed or father's response that mother was seeking child support in bad faith despite the daughter's emancipation.2

1 In his statement of reasons, the judge mistakenly adopted father's figures stating that mother "should reimburse him in the amount of $2,180 which represents four (4) support payments of $436.00 each." The records from the Probation Department indicate that from August through October 2009 father made five payments of $436, which totals $2,180.

2 We suspect that mother's pro se motion may have mistakenly stated it sought emancipation of daughter when mother was actually seeking a change of custody and no parenting time with father. At the same time, we are cognizant of father's allegations that mother falsely claimed daughter graduated from high school and was attending a community college because the copy of a high school diploma mother presented is from an unaccredited internet service that promises a diploma within fifteen days.