PEARL SEIDEN v. JAMES M. NEWMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5141-03T5

PEARL SEIDEN, f/k/a NEWMAN,

Plaintiff-Respondent,

v.

JAMES M. NEWMAN,

Defendant-Appellant.

 

Argued: October 6, 2005 - Decided:

Before Judges Stern, Fall and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Number FM-02-2727-90.

James M. Newman, appellant, argued the cause pro se.

Marion B. Solomon argued the cause for respondent (Arons & Solomon, attorneys; Ms. Solomon and Patricia L. Burris, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant James M. Newman appeals from various portions of an order entered in the Family Part on April 16, 2004, concerning his child support obligation. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

I.

The parties were married on February 4, 1978. Four children were born of their marriage: Rebecca, on April 19, 1979; Benjamin, on August 8, 1980; Marah, on December 2, 1983; and Anna, on July 9, 1985.

On October 19, 1992, the parties placed the terms of a property settlement agreement on the record resolving all outstanding issues in their pending dissolution action, and a dual judgment of divorce was granted. A form of final judgment of divorce was entered on November 20, 1992, memorializing and incorporating the terms of their agreement.

In accordance with paragraph I of the judgment, entitled "Equitable Distribution," plaintiff was to pay defendant the sum of $340,000 in full settlement of all equitable distribution obligations, which payment was to be made by her on or before November 10, 1992. Of that amount, $197,000 was to be paid directly to defendant and, "in recognition and fulfillment of defendant's obligations to re-pay the principal moneys owed to the trusts for the children of the parties, as to which plaintiff, as Trustee, sought recovery in her Amended Complaint[,]" $143,000 was to be paid as follows:

(a) to the Trust for Rebecca Newman, $50,000;

(b) to the Trust for Benjamin Newman, $27,000;

(c) to the Trust for Marah Newman, $40,000; and

(d) to the Trust for Anna Newman, $26,000.

In consideration of those payments plaintiff, individually and as trustee of the children's trusts, waived all claims against defendant for the repayment by him of the principal and interest on a loan by defendant from the children's trust funds. The agreement further provided that defendant would not be required to pay any interest on those amounts owed on that loan "in recognition of the fact that a portion of the child support payments hereinafter described are to be made in lieu of those interest payments."

Defendant's child support obligation was established in paragraph III(A) of the judgment, entitled "Child Support," as $7,000 per year per child ($28,000 annually) for the three-year period following November 10, 1992; $8,000 per year per child ($32,000 annually) for the four-year period following November 10, 1995; and $9,000 per year per child ($36,000 annually) from November 10, 1999, forward.

Paragraph III(C) of the judgment, entitled "Duration of Child Support," required defendant to continue paying child support as to each child until the emancipation of that child. Emancipation was defined as occurring, for a child who graduated high school and began attending college on a full-time basis "at the commencement of the school year next following high school graduation, . . . upon graduation from college or upon the child's 22nd birthday, whichever occurs first."

The agreement provided that for a child who "does not commence a full-time college education immediately" following graduation from high school, "emancipation shall be deemed to occur on that child's 18th birthday or graduation from high school, whichever shall be later." In the event such child starts college thereafter, child support would resume as to that child "if the college education is full time, and shall continue until the earlier of the child's graduation from college or the child's 23rd birthday."

If one of the children started college, but stopped attending prior to graduation, the child support obligation was to terminate, "but shall recommence when the child recommences college on a full-time basis and shall continue while the child is a full-time student and shall terminate upon the earlier of the child's graduation from college or the child's 23rd birthday."

The judgment further provided in paragraph III(D), entitled "Application of Certain Child Support Monies," in pertinent part, as follows:

During the first three years after the Closing Date [November 10, 1992], plaintiff shall deposit $2,000 per year per child into the Trusts for the children. During the fourth, fifth, sixth and seventh years after the Closing Date, plaintiff shall deposit the sum of $3,000 per child per year into the Trusts for the children. From and after the eighth year after the Closing Date, plaintiff shall deposit $4,000 per child per year into the Trusts for the children. The monies to be so deposited shall come from the monies to be paid as child support by defendant to plaintiff and not otherwise. Plaintiff's obligation to make those deposits shall cease with respect to any child as to whom support payments have ceased because of emancipation. Plaintiff shall not be obligated to make those deposits in any year in which defendant shall not have paid in full the support payments for each child for the year in question, and plaintiff shall make the deposit within one month after the end of the year in question. For purposes of this provision, a year shall be deemed to commence on December 1 and to terminate on the following November 30.

Plaintiff may prepay the monies into the Trusts for the children by paying $80,000 at any time during the first three years after the Closing Date, $90,000 at any time during the next four years after the Closing Date and $100,000 thereafter. Prepayment shall be deemed complete when the prepayment total is reached from any combination of annual payments with any additional payments which plaintiff may choose to make.

[Emphasis added.]

Paragraph III(E) of the judgment, entitled "The Parties' Obligations," states:

Except for the child support payments to be made as indicated above, defendant shall have no further financial obligations with respect to the support and maintenance of the children now or in the future and plaintiff shall be responsible to pay for all of the children's needs from child support payments and other resources, including, but not limited to, medical, insurance, medical insurance, unreimbursed medical, housing, food, clothing, camp, school, including tuition, and extracurricular activities, Hebrew School[,] bar or bat mitzvah, together with any and all schools that may be attended by the children whether private preparatory school, private or public college or graduate school. Husband shall have no obligation now or in the future with respect to the support of the children or for any contribution to their support other than the payment of child support as provided herein.

[Emphasis added.]

II.

This is the fifth appeal filed by defendant in this court from various post-judgment orders entered in the Family Part. To provide perspective and context to the issues advanced in this appeal, we summarize the previous four appeals and the procedural history relevant thereto, as follows:

A. No. A-4552-94T3, decided May 13, 1996: Defendant appealed from an order issued on February 7, 1995, reducing his child-support obligation by twenty-five percent to reflect the fact that the child Rebecca was then primarily residing with him. In that appeal, defendant argued that the trial court had erred by: (1) failing to award him child support, payable by plaintiff, for Rebecca; (2) failing to further reduce his child support obligation due to his changed financial circumstances; (3) failing to modify his child support obligation because the amounts contained in the final judgment exceeded what his child-support obligation would have been if computed in accordance with the child support guidelines pursuant to R. 5:6A; and (4) by allowing extraneous payments to be classified as child support.

We rejected all of defendant's arguments and affirmed the February 7, 1995 order substantially for the reasons stated in a supplemental opinion issued by the motion judge dated March 27, 1995. Defendant's petition for certification was denied by the Supreme Court on September 25, 1996. Seiden v. Newman, 146 N.J. 500 (1996).

B. No. A-4085-96T1, decided March 5, 1998: Defendant appealed from an order issued in the Family Part on December 23, 1996, denying his cross motion, in which he had sought an order compelling plaintiff to pay child support for Rebecca. Defendant also appealed from portions of an order entered on May 9, 1997, after a plenary hearing. Specifically, defendant appealed from those provisions vesting residential custody of Rebecca with plaintiff and reinstating his child-support obligation for Rebecca; establishing his support arrears at $33,115 as of November 7, 1997; awarding plaintiff $1,500 in counsel fees and costs; and providing for the issuance of a bench warrant for defendant's arrest in the event he failed to comply with the child support provisions of the court's orders. Defendant also asserted that the Family Part had erred in failing to rule on his claim that plaintiff should be required to fulfill her obligations established under paragraphs III(D) and III(E) of the final judgment.

We agreed that the motion court had erred in transferring physical custody of Rebecca to plaintiff and reinstating defendant's child support obligation for Rebecca, ruling that "[b]ecause the issue of physical custody of Rebecca was not raised until the March 3 [1997] hearing, it was error to retroactively modify defendant's child support obligation to November 21, 1996." Id., slip op. at 5. We remanded the matter for a determination as to when, subsequent to the March 3, 1997 hearing, plaintiff's actual physical custody of Rebecca should have been considered more than temporary in order to trigger the modification of defendant's child support obligation.

However, in all other respects, we rejected defendant's arguments and affirmed the orders of December 23, 1996, and May 9, 1997. A plenary hearing on our remand was conducted in the Family Part on June 19, 1998, and two orders were issued on July 15, 1998. One order, addressing the remand issues, vested residential custody of Rebecca with plaintiff as of April 1, 1997, and required defendant to pay child support to plaintiff for Rebecca as of that date. The second order declared Rebecca emancipated as of June 1, 1997.

C. No. A-111-98T2, decided November 12, 1999: Defendant appealed from the orders issued on July 15, 1998, contending that the Family Part had erred in its custody determination as to Rebecca. We rejected that argument. Defendant also argued that he should have been relieved of his child support obligation to Rebecca as of June 1, 1997. To the extent the July 15, 1998 remand order required defendant to make child support payments for Rebecca up until her emancipation date of June 1, 1998, we reversed, and remanded "for a determination of defendant's support obligation respecting Rebecca after June 1, 1997." Id., slip op. at 4.

A hearing on our remand was conducted on July 31, 2000, and an order entered on September 6, 2000, directing that defendant shall have no child support obligation for Rebecca after June 1, 1997. The order also stated that defendant's child support arrears should be reduced by the probation department by $8,000, and an audit of defendant's child support account was to be conducted.

D. No. A-5515-98T1, decided November 22, 2000: Defendant appealed from an order issued by the Family Part on April 30, 1999, denying his motion seeking $43,329.76 from plaintiff in the form of a credit, or payment, for his support of Rebecca during the period Rebecca resided primarily with him. Defendant asserted that the motion judge had been unfair and partial; that the court should have ordered a plenary hearing; and that the court had improperly failed to enforce the terms of the agreement.

We affirmed, concluding "that defendant's arguments totally are without merit." Id., slip op. at 3. We specifically stated, in pertinent part:

We observe that despite defendant's argument that he is entitled to approximately $43,000 in credits for child support, those issues were previously addressed in our earlier opinions and were properly not reconsidered by the motion judge. In sum, the issues regarding Rebecca's support have been resolved subject to the audit ordered by the judge.

[Id., slip op. at 3-4 (emphasis added).]

Defendant's petition for certification was denied by the Supreme Court on February 14, 2001. Seiden v. Newman, 167 N.J. 630 (2001).

III.

On or about July 25, 2001, defendant was sent a notice by the probation department, pursuant to R. 5:6B, advising him that a biennial cost-of-living adjustment (COLA) was being proposed, to be effective September 28, 2001, that would increase his child support obligation by 5.70%, from $461.55 per week to the weekly sum of $488. The notice informed defendant that because the COLA was not a modification of the child support order, he could only request an administrative review if

you are not the obligor or obligee identified in this case; or

the amount of your current child support order as stated above is incorrect; or

your order or judgment provides for an alternative periodic cost of living adjustment; or

the obligor's income did not increase at a rate at least equal to the amount of the CPI.

Believing that none of these categories were applicable, defendant did not request an administrative hearing, and the Family Part issued an order on September 28, 2001, implementing the stated COLA increase to defendant's child support obligation.

An order entered on October 31, 2001, discharged a child support enforcement bench warrant that had been issued for defendant's arrest; established defendant's child-support arrears at $28,906.29 as of October 27, 2001; continued the $488 weekly support obligation, plus payment of $75 per week towards the arrears; acknowledged a $2,418.29 payment by defendant; and directed the probation department to determine whether defendant had received the $8,000 child-support credit in accordance with the September 6, 2000 order.

On or about July 25, 2003, another biennial COLA notice was sent to defendant, advising of a proposed increase in his child-support obligation by 4.30%, from $488 to $509 per week, effective October 3, 2003. Again, defendant did not request an administrative hearing, and the Family Part entered an order on October 3, 2003, increasing his weekly support obligation to $509, effective that date.

IV.

This appeal arises from a motion filed by defendant in the Family Part or about February 4, 2004. That motion sought an order emancipating the children Benjamin, Marah, and Anna; requiring plaintiff to pay for or credit defendant for support payments made in excess of his obligation; directing a plenary hearing and review concerning plaintiff's support obligation for Rebecca; requiring the probation department to conduct a new audit of his child support account; and declaring that the COLA provisions contained in R. 5:6B were inapplicable to this case.

Plaintiff filed a cross motion, seeking entry of an order granting judgment against defendant in the amount of $31,236, representing child support arrears as of February 2, 2004; requiring that amount to be paid by a date certain; seeking emancipation of Benjamin as of June 1, 2004, emancipation of Anna as of January 1, 2004; denying defendant's application to emancipate Marah; and requiring defendant to pay counsel fees and costs to plaintiff on the motions.

In the interim, an audit of defendant's child-support account was issued by the probation department dated March 5, 2004, concluding that defendant had support arrears of $31,594.83 as of February 29, 2004.

A hearing on the motions was conducted in the Family Part on March 12, 2004. On April 16, 2004, the motion judge issued an order, accompanied by a written motion disposition sheet, which emancipated Benjamin as of May 1, 2002; denied defendant's application to emancipate Marah; emancipated Anna as of January 1, 2004, directing that "Anna may be unemancipated if she resumes college on a full-time basis[;]" denied defendant's request for an audit and accounting of his support account by the probation department; denied defendant's request to be relieved of the R. 5:6B COLA adjustments to his child support obligation; entered judgment against defendant in the amount of $31,236, constituting support arrears as of February 5, 2004, subject to adjustment based on the ordered emancipation dates; and denied, without prejudice, plaintiff's application to require defendant to pay the amount of the judgment by a date certain.

In his written decision, the motion judge found that "Benjamin graduated from the University of Michigan on April 26, 2002[,]" and applied paragraph III(C) of the final judgment in setting Benjamin's emancipation date as May 1, 2002. The judge also found that "Marah, upon graduation from high school, started her college education at the commencement of the school year next following graduation for high school[,]" and applied paragraph III(C)(i) of the final judgment to conclude that Marah was not emancipated. The judge rejected defendant's request to either cap Marah's trust fund or defendant's obligations, finding that "[t]he maintenance of a trust fund for Marah pursuant to the [property settlement agreement] is irrelevant to the Defendant's obligation[,]" and that "[t]he parties reached a bargained for agreement concerning Marah. The agreement, appearing just and equitable, is enforceable."

With respect to Anna, the judge stated, in pertinent part:

Anna graduated from high school in June 2003 and was accepted and attended Indiana University in August 2003. Thereafter, Anna reduced her schedule and was a part-time student. Anna, scheduled to return to Indiana University in January 2004, decided not to return. Instead, she is enrolled at William Paterson, as a part-time student.

In accord with the [judgment of divorce, [paragraph] III(C)(i), Anna graduated from high school and attended college as a full-time student at the ". . . commencement of the school year next following high school graduation" and was not, therefore, emancipated, as of June 2003.

In accord with the [judgment of divorce], [paragraph] III(C)(iii), when Anna decided not to return to Indiana University as of January 2004 she became emancipated. In addition, child support does not recommence since the [judgment of divorce] provides that she would have to be a "full-time" student.

Therefore, Anna will be declared emancipated as of January 1, 2004.

In addressing defendant's request for an audit, the judge stated:

The Defendant has requested that an audit be conducted of the Probation account. Since both Benjamin and Anna have been found to be emancipated an adjustment in the Probation account will be required. Thereafter, either party will be in a position to secure a copy of the Probation account and, if necessary, seek a further audit. The matter is not considered "ripe" at this point in time for the Court to order an audit.

In rejecting defendant's contention that the COLA adjustments should not have been made, the judge explained that "R. 5:6B provides for a COLA adjustment every two (2) years and does allow for an Administrative review which has passed. As a result, the Defendant's application will be denied." As to defendant's request for a hearing concerning plaintiff's obligation to support Rebecca, the motion judge stated:

The Defendant has previously had the opportunity and did litigate the issue of the appropriate level of child support for Rebecca, the Defendant having appealed the trial court's decision.

Based upon claim preclusion, the Court finds no basis to grant a new hearing on the issue of child support for Rebecca.

V.

On appeal, defendant argues that the Family Part erred in not declaring Anna emancipated upon ending her full-time status as a college student; that plaintiff has no standing to enforce the child support obligation because all four children are over eighteen years of age; that he has standing to compel payment by plaintiff of funds into the children's trusts; that the terms of the child support obligation contained in the property settlement agreement are "unenforceable due to promissory fraud, promissory estoppel and breach of contract[;]" and that application of the COLA provisions contained in R. 5:6B to his child support obligation was improper.

After analyzing the record in the light of the written and oral arguments advanced by the parties, with the exception of the argument pertaining to application of R. 5:6B, we conclude that the issues raised by defendant are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons articulated by the motion judge in his written motion disposition sheet appended to the April 16, 2004 order. The findings and conclusions of the judge are supported by adequate, substantial evidence contained in the record on appeal. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We add the following.

The issue of whether plaintiff should be required to pay an amount of child support to defendant during the period that Rebecca was primarily residing with defendant has been previously litigated and adjudicated by the Family Part on at least two prior occasions. Moreover, we affirmed those adjudications in our opinions issued in A-4552-94T3 on May 13, 1996, and again in A-5515-98T1, and the Supreme Court denied both petitions for certification that had been filed by defendant. That ended the matter. Defendant's attempt to raise that same issue, given this procedural context, was totally unwarranted.

It is also evident to us that the motion judge equitably and correctly selected January 1, 2004, as the date of emancipation of Anna. The intent of the parties' agreement with respect to defendant's child support obligation was fulfilled when Anna enrolled as a full-time student at Indiana University of Pennsylvania. Anna should not be penalized because her struggles as a student caused her to reduce her full-time course load during that first semester. "Emancipation in its general sense signifies a surrender and renunciation of the correlative rights and duties touching the care, custody and earnings of the child." Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972); see also Newburgh v. Arrigo, 88 N.J. 529, 543 (1982) (noting that whether a child is emancipated, with the correlative termination of the right to parental support depends upon the facts of each case).

Here, selection of the January 1, 2004 date of emancipation was appropriate in light of these circumstances because, by that date, Anna's academic plans for the immediate future had been crystallized, i.e., she had concluded that her academic career would continue on a part-time basis. It cannot be seriously contended that Anna was able to support herself without parental assistance prior to January 1, 2004, while undergoing the struggles of a first-year college student and her resultant inability to cope with a full-time academic load. We find no misapplication of the judge's discretion, and support his reasoning and common-sense interpretation of the provisions of the parties' property settlement agreement.

We also find no merit in defendant's contention that his child support obligation has been overpaid because that obligation had been implicitly capped by virtue of the authorized prepayment amounts by plaintiff set forth in paragraph III(D) of the judgment. We agree with the conclusion of the motion judge that the terms of the parties' agreement, including the child support obligation of defendant, are clear on their face. Since plaintiff has assumed all other financial obligations for the support of the children beyond application of defendant's defined child support obligation including the cost of their college education, it is disingenuous, at best, for defendant to argue that his child support obligation should be limited to something less than that to which he agreed.

Defendant's contention that plaintiff lacks standing to enforce the court-ordered child support obligation of defendant because the children have reached age eighteen, the age of majority, is equally without merit. As a party to the agreement she seeks to enforce on behalf of unemancipated children, plaintiff's standing is unquestionable. See R. 1:10-3; R. 5:3-7(b); R. 5:7-5. See also Martinetti v. Hickman, 261 N.J. Super. 508, 512-13 (App. Div. 1993) (holding that it should not be necessary for an unemancipated child who has reached the age of majority "to proceed against either parent for a fair share of the costs of her education. So unseemly a course should be avoided whenever possible. It is rendered largely unnecessary by recognizing the right of either parent to proceed on behalf of an unemancipated child for the provision of a fair share of her needs") (emphasis added); Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989) (noting that the right of a child who has reached the age of majority to enforce a parental obligation for support "is enforceable not only at the instance of a custodial parent, but at the child's instance as well"); White v. White, 313 N.J. Super. 637, 640-41 (Ch. Div. 1998) (recognizing the right of the custodial parent of an unemancipated minor who had reached age of majority to seek child support and college costs from the non-custodial parent); accord, Sharp v. Sharp, 336 N.J. Super. 492, 502, n. 2 (App. Div. 2001).

Defendant also contends that his child support obligation under the final judgment is unenforceable because plaintiff certified that she "never expected Defendant to be current on his child support obligation." He concludes from that statement that establishment of his child support obligation was based on fraud. Not so. Whether plaintiff believed defendant would meet his obligation to pay child support is irrelevant because his child support obligation would exist if there were no agreement between the parties. Indeed, it is likely that he would have been required to also contribute to many, if not all, of the obligations that have been assumed by plaintiff in paragraph III(E) of the final judgment.

Defendant's further contention that the Family Part erred by failing to enforce plaintiff's obligation to periodically contribute to the children's trusts contained in paragraph III(D) of the final judgment also lacks merit. The judgment specifically provides that the monies to be deposited were to come from defendant's child support payments, and that she "shall not be obligated to make those deposits in any year in which defendant shall not have paid in full the support payments[.]" Defendant's own conduct created the current circumstances, not any failure by plaintiff.

Defendant also argues that the Family Part erred in denying his application for a determination that the COLA provisions contained in R. 5:6B are not applicable to his child support obligation. R. 5:6B provides, as follows:

All orders and judgments that include child support entered, modified, or enforced after the effective date of this rule shall provide that the child support amount will be adjusted every two years to reflect the cost of living. The cost-of-living adjustment shall be based on the average change in the Consumer Price Index for the metropolitan statistical areas that encompass New Jersey and shall be compounded. Before a cost-of-living adjustment is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice. An obligor may contest the adjustment if the obligor's income has not increased at a rate at least equal to the rate of inflation as measured by the Consumer Price Index or if the order or judgment provides for an alternative periodic cost-of-living adjustment. Either party may contest the cost-of-living adjustment based on changed circumstances and may request that the Appendix IX child support guidelines be applied to adjust the amount of child support to be paid. The application of the child support guidelines shall take precedence over cost-of-living adjustments. A cost-of-living adjustment shall not impair the right of either parent to apply to the court for modification of support provisions of the order or judgment based on changed circumstances. The forms and procedures to implement cost-of-living adjustments shall be prescribed by the Administrative Director of the Courts.

The effective date of R. 5:6B was September 1, 1998. Some discussion of the history that led to its adoption is relevant. R. 5:6B is the result of New Jersey's efforts to comply with the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub.L. 104-193, codified under Title IV, Part D of the Social Security Act, 42 U.S.C.A. 601-669. As a condition to receiving federal funding for their child support establishment, collection and enforcement programs, New Jersey and all other states were required by PRWORA to maintain uniform standards for determining child support obligations and establishing support enforcement programs. See 42 U.S.C.A. 651 to 669.

Prior to the enactment of PRWORA, The Family Support Act of 1988 had been enacted by Congress, effective October 13, 1988. See Pub.L. 100-485. Section 103(c) of The Family Support Act required that states review and adjust child support orders at least once every three years. In 1990, New Jersey enacted c. 92, L. 1990, effective October 1, 1990, codified at N.J.S.A. 2A:17-56.9a, to comply with this federal mandate.

At that time, N.J.S.A. 2A:17-56.9a required the New Jersey Department of Human Services (DHS) the New Jersey Title IV-D agency to promulgate administrative rules, in consultation with the Supreme Court, that would provide for the review of all Title IV-D orders for child support at least once every three years to determine whether such orders are consistent with the child support guidelines. To implement the provisions of N.J.S.A. 2A:17-56.9a, the Court adopted R. 5:6-6, effective October 13, 1993. That rule authorizes the court and the probation department to participate in an expedited adjustment process for child support orders, under which the probation department is to present to the court "any appropriate order being enforced" under the Title IV-D program "for adjustment of the child support award . . . in accordance with N.J.S.A. 2A:17-56.9a."

However, the triennial review process suffered from backlogs and delays, causing New Jersey and other states to be unable to comply with the federal requirement under the Family Support Act of 1988. See Supreme Court Family Practice Committee Report, 1996-1998, 152 N.J.L.J. 170 (April 20, 1998). Recognizing the problem, Congress enacted PRWORA, which became effective August 5, 1997. PRWORA provided, inter alia, that states may choose from among three child-support-order review options, including application of a cost-of-living adjustment to any child support order being enforced under the Title IV-D program. See 42 U.S.C.A. 666(a)(10)(A)(i)(II).

To meet this and other requirements imposed by PRWORA, New Jersey enacted the Child Support Program Improvement Act, c. 1, L. 1998, effective March 5, 1998. Section 20 thereof amended N.J.S.A. 2A:17-56.9a to provide that the periodic review requirement of Title IV-D child support orders could be satisfied by "an automatic cost-of-living adjustment program for child support payments[.]" Pursuant to that statutory authority, R. 5:6B was adopted by the Court on July 10, 1998, to be effective September 1, 1998.

In the New York case of In re Tompkins, 786 N.E.2d 14 (N.Y. 2003), the Court of Appeals discussed the federal legislative history pertaining to the COLA, as follows:

Mandatory periodic review and adjustment of child support orders was originally implemented through the Family Support Act of 1988[.] . . . As the Office of Child Support Enforcement (OCSE) later explained, those requirements were enacted to ensure the adequacy of child support orders (see 57 Fed. Reg. 61559, 61560 (1992)). There was concern that support orders entered into prior to the establishment of state guidelines were inadequate, and also that orders in compliance at the start would not necessarily continue to provide the guideline amount of support over time (see 57 Fed. Reg. 61559, 61560 (1992)). The OCSE explained that, for those reasons, periodic adjustments to the order would be made "in accordance with the State's guidelines, which must be used as a rebuttable presumption in establishing or adjusting support obligations in the State" ( 57 Fed. Reg. 61559, 61560 (1992)).

The PRWORA, the source of the current 42 U.S.C.A. 666(a)(10) review and adjustment procedures, instituted review upon request rather than mandatory review and allowed states to choose among three methods for review (see 64 Fed. Reg. 6237, 6241 (1999)).

[Id. at 18.]

Defendant's child support obligation was reviewed in accordance with the procedures outlined by R. 5:6B. However, under the unique facts of this case, we find merit in defendant's contention that the COLA provisions contained in R. 5:6B should not have been applied to his child support obligation. The original agreement provided for direct payments of child support. The payment of child support through the probation department was directed by an order issued on October 15, 1993, only after defendant had fallen into substantial arrears, necessitating repeated enforcement efforts.

More pertinently, defendant's child support obligation was not based on an income-shares analysis as required by the child support guidelines. R. 5:6A; see Pressler, Current N.J. Court Rules, Appendix IX-A, "Considerations in the Use of Child Support Guidelines," 4, "The Income Shares Approach to Sharing Child-Rearing Expenses" (2005). Stated differently, this is not a guidelines case. The parties entered into their agreement at a time when the child support guidelines were in effect, and chose not to be governed by them in the allocation of their responsibility for the support of the children. Therefore, the policy considerations leading to the enactment of the federal requirement for periodic review are not present here.

Moreover, the components constituting the amount of child support agreed to be paid by defendant did not only embody "child support" in the traditional sense. Paragraph I of the final judgment specifically recognized that "a portion of the child support payments hereinafter described are to be made in lieu of" interest payments on defendant's loan from the children's trust funds. Additionally, in consideration of the amount defendant had agreed to pay pursuant to paragraph III(E) of the final judgment, plaintiff had agreed to assume all other child-support-related obligations of the children, including college and private school costs, medical insurance, bar or bat mitzvah expenses, and the costs of the children's extracurricular activities, all expenses not traditionally included within the basic child support amount when the guidelines are applied. Significantly, automatic child support escalators were embodied in the parties' agreement that covered a period of seven years from November 10, 1992, and the parties had specifically agreed that defendant's child support obligation "now or in the future" would be limited to "the payment of child support as provided" in the agreement.

Here, the COLA notices sent to defendant dated July 25, 2001, and July 25, 2003, provided for administrative reviews, if requested, of limited scope. Accordingly, it is understandable that defendant would not have availed himself of that administrative process. Since we conclude that R. 5:6B was inapplicable in this case, equity and fairness dictate that the September 28, 2001, and October 3, 2003 COLA orders be vacated, and that defendant's weekly child obligation that existed prior to application of the COLA be reinstated. The probation department shall re-compute and adjust defendant's child support arrears in accordance with this determination.

Because we have vacated those orders not modified them the proscription against retroactive modification of child support orders contained in N.J.S.A. 2A:17-56.23a is inapplicable. Additionally, we note that the COLA notices sent to defendant specifically stated that the COLA was an "adjustment" and not a "modification" of his child support obligation.

In summary, except with respect to the COLA determination, the order entered by the Family Part on April 16, 2004 is affirmed in all other respects. The matter is remanded for issuance of an order vacating the September 28, 2001, and October 3, 2003 orders, and directing that the probation department adjust its records pertaining to defendant's child support arrears.

 
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

A copy of the March 27, 1995 supplemental opinion is not contained in the record on appeal.

In the official reporter, the name "Seiden" is misspelled as "Seidman."

The parties did not include a copy of this opinion in the record on appeal.

(continued)

(continued)

30

A-5141-03T5

December 8, 2005