ANNE B. PESSIN v. L. STEVEN PESSIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANNE B. PESSIN,

Plaintiff-Respondent,

v.

L. STEVEN PESSIN,

Defendant-Appellant.

________________________________________

October 7, 2015

Submitted September 16, 2015 Decided

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-35418-91.

L. Steven Pessin, appellant pro se.

Keith, Winters & Wenning, attorneys for respondent (Brian D. Winters, on the brief).

PER CURIAM

Defendant, L. Steven Pessin, appeals from an order denying post-judgment relief relating to his alimony arrears obligation and an order denying reconsideration. We affirm.

The parties were married in November 1966 and divorced in August 1992. Pursuant to the Property Settlement Agreement (PSA), which was incorporated into the Judgment of Divorce (JOD), defendant was required to pay alimony to plaintiff in the amount of $1200 per month.

In June 2000, plaintiff remarried. On June 25, 2000, defendant's alimony obligation was terminated. At the time of termination, arrears were set at $93,165.11. From the date of termination until the entry of the order, defendant paid $11,882 toward the arrears.

Defendant filed a motion seeking to bar plaintiff from collecting the arrears, to direct plaintiff to repay alimony arrearages collected from November 1, 2013, or, in the alternative, to reduce the payment of arrears collected from defendant's social security. The motion appeared to have its impetus from the Social Security Administration notice that his benefits would be garnished to pay arrears. Defendant argued that since plaintiff did not seek enforcement of the arrears for over eleven years, she was barred by laches. Defendant also argued that he was entitled to a "reimbursement" (based upon the filing date of the motion) and that he was financially unable to meet his alimony obligation. Plaintiff opposed the motion.

The motion judge denied the relief by order of February 12, 2014, with an accompanying statement of reasons. The judge held in regard to the laches argument that

[P]laintiff is not barred by laches. Defendant clearly comes to court with unclean hands. Defendant knew of his alimony obligations as he agreed at the time of the divorce to pay alimony in the amount of $1200 per month and failed to pay. Plaintiff certified that she relied on [p]robation to collect alimony and updated [p]robation with [d]efendant's addresses as she learned of them. The court acknowledges [d]efendant's argument that he was not hiding from the [p]laintiff and the court does not base its decision on [] whether or not [d]efendant was hiding from the [p]laintiff to avoid paying alimony. . . . Probation issued a bench warrant for the [d]efendant's arrest in 2002, which is currently active. Defendant has not been arrested because he does not reside in New Jersey. Accordingly, the court finds it appropriate to deny [d]efendant's request to bar [p]laintiff from collecting alimony arrears on the basis of laches.

In regard to plaintiff's continuing obligation to pay arrears, the judge held

Defendant should continue to pay towards alimony arrears. Defendant blatantly disregarded his alimony obligation and now begs the court for relief. . . . Defendant's failure to pay alimony should not now be rewarded simply because [p]laintiff left the collection of alimony arrears for [p]robation to handle. Accordingly, the court finds it appropriate to continue to require [d]efendant to make payments towards his alimony arrears.

Finally, the judge addressed the issues of garnishment and modification of payment

Section 459 of the Social Security Act provides, in pertinent part, that Social Security benefits may be garnished to enforce an individual's legal obligation to provide child support or alimony.

. . . .

The law clearly permits the 50% garnishment from [d]efendant's social security benefits for the purpose of collecting alimony arrears. Accordingly, the court finds it appropriate to continue the garnishment as ordered by [p]robation.

It is noted, at the discretion of the court, the court can modify [d]efendant's obligation to pay alimony (i.e., lower [d]efendant's obligation). However, the court has not been presented with information such as would cause it to award a modification. The court has no idea what [d]efendant made at the time of the divorce and what his earnings were after [the] divorce to date.

Thereafter, defendant filed a motion for reconsideration. The motion sought the identical relief as the original motion. Defendant also sought the recusal of the motion judge. By order dated April 23, 2014, the motion was denied with an accompanying statement of reasons. The judge held the motion did not present any basis for reconsideration, in that the court did not overlook either operative facts or controlling decisions of law. The judge also held there was no basis for her recusal.

On appeal, plaintiff argues

POINT I

THE TRIAL COURT ERRED IN HER TREATMENT OF THE UNCLEAN HANDS DOCTRINE.

A. THE UNCLEAN HANDS ALLEGATION BY THE PLAINTIFF SHOULD HAVE BEEN STRICKEN FROM THE RECORD.

B. THE UNCLEAN HANDS DEFENSE IS NOT APPLICABLE IN THIS MATTER.

C. UNCLEAN HANDS IS NOT A DEFENSE TO A MONETARY CLAIM.

POINT II

THE PLAINTIFF'S CLAIM FOR COLLECTION OF ALIMONY ARREARAGES IS BARRED BY LACHES.

POINT III

MODIFICATION OF SUPPORT WAS MANDATED BY THE FACTS.

POINT IV

SOCIAL SECURITY BENEFITS SHOULD NOT BE GARNISHED WITHOUT JUDICIAL APPROVAL.

POINT V

THE TRIAL COURT WAS BIASED AND HER DECISION SHOULD BE VACATED.

After our review of the record, as well as controlling law, we conclude the motion judge's decisions on both motions were factually and legally correct.

Having considered plaintiff's arguments on appeal under the same lens, we conclude they are wholly without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).