Jennifer solomon v. brian solomon

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

Jennifer solomon, n/k/a

JENNIFER rosenzweig,

Plaintiff-Respondent,

v.

brian solomon,

Defendant-Appellant.

June 12, 2015

Submitted January 7, 2015 - Decided

Before Judges Maven and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1386-05.

Brian Solomon, appellant pro se.

Jennifer Solomon, n/k/a Jennifer Rosenzweig, respondent pro se.

PER CURIAM

Defendant Brian Solomon appeals from an August 26, 2013 Family Part post-judgment order. Among other things, it granted a reconsideration motion filed by plaintiff Jennifer Solomon, now known as Rosenzweig, to compel defendant to pay substantial child support arrears from his fifty percent share of (1) his 401(k) or Individual Retirement Account (IRA), and (2) the proceeds from the sale of a timeshare property. The August 26 order also reduced defendant's child support obligation to $66 per week, retroactive to the court's previous July 10 order, and required defendant to pay his arrears at the weekly rate of $100. For the reasons that follow, we affirm.

The record reflects that the parties married in November 1996 and had three children, born in 2000, 2002, and 2004. The parties entered into a Property Settlement Agreement (PSA) on May 4, 2006, which was incorporated into the dual judgment of divorce entered that same day.

In relevant part, the PSA: (1) required defendant to pay plaintiff $300 per week in child support, and $325 per week in alimony for five years; (2) divided defendant's 401(k) equally between the parties; and (3) divided the parties' ownership and usage of their timeshare property equally, with plaintiff using it in even years, and defendant using it in odd years. The PSA further recites that, at the time of their divorce, defendant earned $82,000 a year while plaintiff earned $34,000.

On February 8, 2007, the court assigned to plaintiff an amount equal to fifty percent of the value of defendant's IRA as of April 1, 2005. On December 7, 2007, the court found that defendant violated plaintiff's rights by willfully failing to turn over to her half of his 401(k) account in accordance with the PSA. The court ordered defendant to comply within ten days.

On October 2, 2009, defendant was sentenced to a seven-year prison term with a three-year period of parole ineligibility. Subsequent to entering into the PSA but before his incarceration, he was required to pay $35 per week toward support arrears. While incarcerated, defendant moved to decrease child support payments (which were then $320 per week) to $5 per week, to terminate alimony, and to terminate payment toward arrearages.1 In substance, he argued that his incarceration constituted a change of circumstances and that his mounting arrearages could lead to recidivism upon his release.

Plaintiff opposed the motion, maintaining that defendant never complied with his support obligations and had accumulated significant arrears. Plaintiff also cross-moved to reallocate the entire 401(k) and timeshare to her.

On February 4, 2011, Judge Michael A. Guadagno denied defendant's motion to decrease his child support payments. However, the court suspended enforcement of defendant's support obligation pending his release. By consent, defendant's alimony obligation was terminated retroactive to June 19, 2008. Plaintiff's application to reallocate defendant's entire 401(k) was denied without prejudice due to confusion arising from conflicting references to a 401(k) and an IRA in the PSA and subsequent orders. Finally, although the judge denied plaintiff's request to transfer sole ownership of the timeshare property to her, in his attached statement of reasons he added

Plaintiff maintains [] defendant has significant arrears . . . . Plaintiff may convert her arrears to a judgment and secure that judgment with defendant's interest in the timeshare. The value of the timeshare is unknown. Plaintiff is free to appraise the timeshare.

Defendant appealed a June 9, 2011 order that denied reconsideration of the February 4 order. In an unpublished decision, we determined

[Defendant] contends the trial court erred by failing to address arrears going back to 2007. N.J.S.A. 2A:17-56.23a, however, prohibits judges from vacating child support arrears which accrue prior to the filing of a motion to modify the support obligation. In other words, the statute bars retroactive modification: "[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification . . . ." Hence, if for no other reason than this, the court's refusal to consider child support going back to 2007 was not error.

[Solomon v. Solomon, No. A-5540-10 (App. Div. Oct. 2, 2012) (slip op. at 2-3).]

Additionally, we concluded that "the motion judge properly transferred [defendant's] application to modify ongoing child support to the inactive list, as he was implementing the procedure delineated in Halliwell v. Halliwell, 326 N.J. Super. 442, [457] (App. Div. 1999)." Solomon, supra, slip op. at 3.

Defendant was released in August 2011 to a work house. Thereafter, he worked for $10 hourly at Bobby's Burgers as a line cook while also applying for salaried positions in the industrial sector. Subsequently, while on parole he began working thirty hours a week for his family's business, earning $12 per hour.

The record reveals that on April 16, 2013, the Family Part entered an order pertaining to defendant's child support obligation, although the order itself is not included in defendant's appendix. In any event, defendant moved for reconsideration of that order on May 13, 2013. On July 10, Judge John R. Tassini granted defendant's motion for reconsideration, and ordered that: (1) defendant maintain his fifty percent interest in the 401(k); (2) the parties continue to share ownership of the timeshare; and (3) the parties submit current case information statements within thirty days, following which the court would recalculate defendant's child support obligation. However, Judge Tassini denied defendant's request to stay his existing child support obligation.

In the interim, on May 23, 2013, a cost-of-living adjustment was applied, thereby increasing defendant's child support payment to $366 per week. Also, on June 3, Judge Kathleen A. Sheedy ordered defendant to pay $35 per week toward his arrears, which at that point totaled $90,358.64.

Plaintiff subsequently moved for reconsideration of the July 10, 2013 order, indicating that she had not received a copy of defendant's motion that had resulted in that order. On August 26, Judge Tassini granted plaintiff's motion and ordered that defendant (1) pay his half of the funds in the 401(k) or IRA toward his child support arrears; and (2) convey his interest in the timeshare property to plaintiff, with directions that plaintiff sell the timeshare and apply defendant's share of the proceeds toward the arrears. The order also reduced defendant's child support obligation from $366 to $66 per week, and increased his arrearage payment to $100 per week, effective July 10.

In a detailed fourteen-page statement of reasons, Judge Tassini noted plaintiff's contention that defendant's failure to meet his support obligation caused her financial hardship and that her home was in pre-foreclosure. Defendant's documentation included an Oppenheimer Funds IRA or 401(k) account statement that showed an approximate $24,000 balance. Plaintiff also cited advertisements for comparable properties that supported a value of $10,000 for the timeshare. The judge concluded that reconsideration was warranted "given the above-described circumstances and in the best interests of the children."

Defendant appeals, arguing that his 401(k)/IRA and the timeshare should be divided equally between the parties in accordance with the PSA, and that the court erred in applying his fifty percent share of these assets toward his support arrears. Defendant also argues that his arrears should be reduced retroactively to when he first sought modification of his support obligation upon his incarceration.

We begin by stating the well-known principles that inform our review. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). And, while we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we "'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We "reverse only to 'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

We first consider defendant's contention that the court erred in departing from the PSA when it awarded his fifty percent interest in the 401(k)/IRA and the timeshare to plaintiff. Defendant notes, correctly, that ordinarily the parties' PSA governs their post-divorce relationship. See, e.g., Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).

Certainly, "[t]he basic contractual nature of matrimonial agreements has long been recognized." Id. at 265. "Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Trial courts should enforce a marital agreement as the parties intended. Pacifico, supra, 190 N.J. at 266. Nonetheless, "[c]ourts have continuing power to oversee divorce agreements and the discretion to modify them on a showing of changed circumstances that render their continued enforcement unfair, unjust, and inequitable." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999) (citations and internal quotation marks omitted).

Defendant's argument misconstrues the nature of the relief granted by the trial court. The court did not simply "grant[] 100 percent [of the 401(k)/IRA and the timeshare] to plaintiff," as defendant contends. Rather the court ordered that "defendant's half of the net money [from the 401(k) or IRA] . . . be paid towards [his] child support obligation." Similarly, the judge ordered that the timeshare be sold and that "defendant's half of any proceeds received . . . be applied to [] defendant's child support arrears." In ordering this relief, the court acted "in the best interests of the children." Defendant owed substantial arrearages in child support. After our review of the record, we are satisfied that there was a sufficient basis for the court's determination.

We are guided by our long-standing view that "[t]he obligation to provide child support 'is engrained into our common law, statutory, and rule-based jurisprudence[,]'" Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)), and "'[t]he right to [receive] child support belongs to the child.'" J.B. v. W.B., 215 N.J. 305, 329 (2013) (first alteration in original) (quoting Pascale v. Pascale, 140 N.J. 583, 591 (1995)); see Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993); see also J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006) ("The purpose of child support is to benefit children, not to protect or support either parent."), certif. denied, 192 N.J. 295 (2007). "Child support is the right of the child and the responsibility of both parents, not a chip won or lost by the custodial parent from the non-custodial parent[.]" Pascale, supra, 140 N.J. at 593. For this reason, "enforcing the parental duty to support children is 'an inherent part of the "best interests of the child" rubric which underlies our family courts.'" Colca, supra, 413 N.J. Super. at 414 (quoting Monmouth Cnty. Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super. 83, 88 (Ch. Div. 1997)).

In the face of competing considerations, i.e., difficulty in meeting the support obligation by the obligated parent, the child's best interests are the "'greatest and overriding consideration.'" Colca, supra, 413 N.J. Super. at 414 (quoting G.D.M., supra, 308 N.J. Super. at 88). When considering both the guiding principles that inform child support decisions and our standard of review, we are satisfied that the judge merely enforced the PSA to the children's benefit. Accordingly, we find no error in the court's determination.

We next address defendant's argument that the court erred in failing to reduce his arrears retroactively to the date he first filed for such relief upon his incarceration. As noted, on February 4, 2011, the trial court denied defendant's application to modify his child support obligation, but suspended enforcement pending defendant's release. On appeal, we affirmed that portion of the court's order. Solomon, supra, (slip op. at 2-3). Relying on Halliwell, supra, 326 N.J. Super. at 457, we noted that "the better practice" is to defer decision on the motion and "transfer the matter to the inactive calendar pending the obligor's release from the custodial sentence."

Upon defendant's release, Judge Tassini properly required him to file an updated case information statement. See ibid. Noting the existence of the 401(k) and timeshare, the judge correctly ordered defendant to utilize those assets to satisfy a portion of the accrued arrears. The judge then modified defendant's ongoing support obligation and ordered periodic payments toward the remaining arrears balance based on defendant's current income. On this record, we discern no error in the judge's exercise of his broad equitable power in modifying his child support obligation and directing payment of his support arrears in a reasonable manner.

Affirmed.

1 The filing date of defendant's motion is unclear from the record.