BARBARA J. MICHAELS v. KEVIN G. MICHAELS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1670-11T4

BARBARA J. MICHAELS,

Plaintiff-Appellant,

v.

KEVIN G. MICHAELS,

Defendant-Respondent.

________________________________________________________________

February 22, 2013

Submitted December 5, 2012 - Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0348-07.

Barbara J. Michaels, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Barbara J. Michaels appeals from a November 3, 2011 order placing her on a two-week missed-payment warrant status. This determination was made in connection with a child support enforcement hearing before a Child Support Hearing Officer (CSHO). We affirm.

After marrying in 1991 and having three children, the parties were divorced on April 14, 2009. They agreed to equitable distribution and that neither party would pay alimony to the other. The issues of custody and child support were tried by the judge. She awarded residential custody of the children to defendant Kevin G. Michaels. The judge determined that if the parties could not agree to child support within thirty days, the matter would be scheduled before a hearing officer.1 R. 5:25-3(b)(2). On August 14, 2009, both parties appeared with counsel before the hearing officer. The hearing officer awarded support based on plaintiff's prior annual earnings of $60,000, which she earned working as an engineer, although she was receiving only unemployment benefits at the time of the hearing. Defendant earned $80,000 annually.

In November 2011, plaintiff appeared before the same hearing officer for an enforcement hearing. R. 5:25-3(b)(5). Plaintiff was ordered to pay $104 weekly plus an additional $30 weekly towards arrears. At the beginning of the hearing, the officer informed plaintiff, "If you disagree with the decision I make, you have the right to appeal. Do you understand what I've said?" Plaintiff indicated she understood.

The arrears balance was $2,282. Plaintiff testified that she was working part-time for a film production company earning approximately $250 weekly. She stated that she had filed a motion to reduce support, which had been denied. The hearing officer instructed her to file another motion if she was unable to keep up with the court-ordered payments. He also placed her on a two-week missed-payment warrant status, so that if she missed any two payments after January 1, 2012, a warrant would issue for her arrest. Plaintiff signed the order prepared by the hearing officer below the preprinted statement, "I hereby declare that I understand all provisions of the ORDER recommended by a Hearing Officer and I waive my right to an immediate appeal to a Superior Court Judge[.]"2 See Pasqua v. Council, 186 N.J. 127, 141 n.2 (2006).

Plaintiff did not thereafter file a motion with the court for reconsideration, R. 4:49-2 and R. 5:25-3(d)(2), or a motion for relief pursuant to Rules 4:50-1 and 5:25-3(d)(2). Instead, plaintiff filed an appeal directly to us, and subsequently moved for the stay of an arrest warrant, which we denied by order on July 10, 2012.

On appeal, plaintiff argues that she cannot afford to pay the court-ordered support and that the "order simply is not fair." She seeks a decrease in support and a vacation of the warrant status. Because we are not considering an appeal of the order setting the amount of child support, or of an order denying her application to reduce support, the issue of the amount of child support plaintiff is ordered to pay is not before us.

Although plaintiff did not immediately appeal to a Superior Court Judge, nor did she file a motion seeking to modify the CSHO order, Rule 5:25-3(d)(3) states that:

Orders of the Family Part entered as a result of a Child Support Hearing Officer's recommendation shall be recognized as a final order of the Superior Court. Copies of the orders shall be provided to the parties or their attorneys. Orders may be appealed to the Appellate Division of the Superior Court within the time and according to the procedures prescribed by the Rules for appeals to the Appellate Division. The time for appeal shall run from the date of the signing of the order by a Judge of the Superior Court.

Moreover, the CSHO Program Operations Manual, prepared to guide the New Jersey Judiciary staff, indicates:

1214 Appeal to the Appellate Division
The record of some CSHO determinations, once ratified, may be the only proceeding
subject to review, if a party files a direct appeal with the Appellate Division from the
Family Part order. R. 2:2-3(a)(1). The party must file a Notice of Appeal within 45 days from the date the judge signs the Uniform Summary Support Order. R. 2:4-1(a). Therefore, it is the responsibility of the CSHO to ensure the integrity of that record.

We therefore consider this appeal on its merits. As explained to her by the hearing officer, plaintiff was ordered to make timely child support payments. If the support was too high, her remedy was to seek a reduction of support and not engage in self-help by failing to pay. The two-week missed-payment warrant status is a method to enforce court-ordered payments, and is properly placed on an individual with a history of nonpayment. R. 5:3-7(b)(7). If plaintiff is arrested pursuant to a warrant, she will then be entitled to counsel and will not be incarcerated more than seventy-two hours unless the court finds she willfully did not pay her court-ordered obligation. Pasqua, supra, 186 N.J. at 141 n.2, 149.

1 We note that bifurcating the issues of divorce, equitable dissolution and custody from the issue of support should not occur absent "extraordinary circumstances." R. 5:7-8; see Lehr v. Afflitto, 382 N.J. Super. 376, 398 (App. Div. 2006).

2 Plaintiff provided us with a copy of this order signed by the CSHO beneath the language "So Recommended to the Court by the Hearing Officer[,]" but not ratified by the signature of a judge. We obtained a copy signed by the judge, which pursuant to normal protocol would have been sent to plaintiff. R. 5:25-3(d)(3); CSHO Program Operations Manual, 1314.1. This manual was approved on March 26, 2009 and is available at http://www.judiciary.state.nj.us/family/CSHOP_Ops_Man_20090326_with_attach.pdf.