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DOCKET NO. A-0264-05T20264-05T2







Argued: March 8, 2006 - Decided August 3, 2006

Before Judges Stern, Fall and Parker.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Number FM-09-915-05.

Elliott H. Gourvitz argued the cause for appellant (Ari H. Gourvitz, on the brief).

Paul Lomberg argued the cause for respondent (Lomberg & Del Vescovo, attorneys; Mr. Lomberg and Janet S. Del Gaizo, on the brief).


In this matrimonial action, on leave granted, plaintiff Francisco Armendariz, Jr. appeals from orders entered in the Family Part following a plenary hearing conducted on September 13, 2005, finding that he had the ability to pay the ordered pendente lite support to defendant Rosa M. Armendariz. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

The parties began cohabitating in 1987. They married on October 29, 1995, and subsequently separated in January 2003 due to the plaintiff's alleged adulterous behavior. The parties attempted to reconcile in October 2003, but separated again in January 2004. The parties have one child together, born on June 9, 1994; the child is in the custody of defendant.

Plaintiff filed a complaint for divorce on October 21, 2004. Defendant filed an answer and counterclaim on December 2, 2004, and a notice of motion seeking pendente lite support on December 22, 2004. Plaintiff filed a cross-motion and responding certification. Defendant filed a reply certification on January 24, 2005.

On January 28, 2005, an order for pendente lite support was issued by the Family Part after a hearing on the same date. The order directed plaintiff to pay defendant the sum of $383 per week in child support and $550 per week in spousal support.

On February 17, 2005, plaintiff filed a motion for reconsideration. Defendant filed responsive papers on March 13, 2005, and plaintiff submitted a reply. The court denied plaintiff's motion for reconsideration by order entered on April 8, 2005. On September 13, 2005, the parties appeared for a case management conference. Plaintiff was represented by counsel, but defendant appeared pro se. The Probation Department had sought and obtained a warrant for the plaintiff's arrest due to accrued support arrears from his failure to meet his court-ordered support obligation. Plaintiff represented to the court that he could not pay the $5,000 purge amount set on the warrant, and that he desired to proceed with an ability-to-pay hearing at that time. The plaintiff also stated that he was in possession of three certifications from his family that purported to demonstrate that he had no assets to pay the court-ordered support or purge amount.

The trial court granted plaintiff's request and conducted an evidentiary ability-to-pay hearing that day. The court heard extensive testimony from both plaintiff and defendant and concluded that plaintiff had the ability to pay the support previously ordered on January 28, 2005. Plaintiff requested a stay of the arrest warrant pending appeal, which the court granted.

A handwritten order memorializing the court's findings was issued on September 13, 2005, requiring plaintiff to file an appeal by September 16, 2005. Plaintiff filed a notice of appeal on September 15, 2005.

On September 22, 2005, the Clerk of this court determined that the appeal was interlocutory in nature, and gave the plaintiff 15 days from the date of the letter to file a motion for leave to appeal. On October 7, 2005, the court entered a formal, typewritten order memorializing its findings based on the September 13 hearing and, inter alia, certified the order as final pursuant to R. 4:42-2. The trial court also issued a letter to the parties dated September 23, 2005, stating, in pertinent part, that its order entered on September 13, 2005 "is final as it pertains to [plaintiff's] ability to pay."

On November 28, 2005, we entered an order granting plaintiff's motion for leave to appeal. On appeal, plaintiff presents the following arguments for our consideration:










We first address the certification of the October 7, 2005 order as a final, appealable order pursuant to R. 4:42-2. That rule provides as follows:

If an order would be subject to process to enforce a judgment pursuant to R. 4:59 if it were final and if the trial court certifies that there is no just reason for delay of such enforcement, the trial court may direct the entry of final judgment upon fewer than all the claims as to all parties, but only in the following circumstances: (1) upon a complete adjudication of a separate claim; or (2) upon complete adjudication of all the rights and liabilities asserted in the litigation as to any party; or (3) where a partial summary judgment or other order for payment of a part of a claim is awarded. In the absence of such direction, any order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice. To the extent possible, application for reconsideration shall be made to the trial judge who entered the order.

The certification technique in R. 4:42-2 is not available for the sole purpose of achieving interlocutory review; it is only an order susceptible to enforcement as a final order which is eligible for such certification. Pressler, Current New Jersey Court Rules, comment to R. 4:42-2 (2006).

The original intention of this rule was to permit execution on a partial judgment fully adjudicating a separable claim for affirmative relief or all claims by and against a single party. That the partial judgment so certified is final for appeal purposes is a collateral and not a primary consequence of the certification. Hence, it was a misuse of the rule for a trial court to "certify" as final a partial adjudication other than one granting affirmative relief in order that the adjudication be immediately appealable, a technique of increased currency.


We raise this issue because we want to make it clear that the orders entered by the Family Part arising from the September 13, 2005 hearing were clearly interlocutory and are appealable only on leave granted pursuant to R. 2:5-6. The fact that there can be execution upon and enforcement of pendente lite support orders, particularly those ordering the payment of child support, see N.J.S.A. 2A:17-56.23a, does not make them "final" for appeal purposes, nor can they be so certified by the Family Part, even where one of the enforcement techniques employed is coercive incarceration to compel payment. See e.g. T.W. v. A.W., 224 N.J. Super. 675, 681 (App. Div. 1988) (noting that an order requiring paternity blood testing was interlocutory), certif. denied, 117 N.J. 44 (1989). An appeal may only be taken as of right from a final order that is final both as to all issues and all parties. Caggiano v. Fontura 354 N.J. Super. 111, 123 (App. Div. 2002).

Certainly, this formulation is subject to the standard of the interests of justice, upon application by a party to this court seeking interlocutory review pursuant to R. 2:5-6. However, a party should not seek final certification of finality pursuant to R. 4:42-2 in such circumstances. Here, we have granted leave to appeal. Cf. Parker v. City of Trenton, 382 N.J. Super. 454, 457-58 (App. Div. 2006) (dismissing an appeal as interlocutory, noting that "if we treat every interlocutory appeal on the merits just because it is fully briefed, there will be no adherence to the Rules, and parties will not feel the need to seek leave to appeal from interlocutory orders").


Turning to the merits, on or about February 17, 2005, plaintiff filed a motion seeking reconsideration of the pendente lite support determination embodied in the January 28, 2005 order. Plaintiff certified that the amount of the support order exceeded his gross income. Plaintiff asserted that defendant had distorted the parties' marital lifestyle, and took issue with the motion judge's approach in imputing income to him. Plaintiff submitted that he paid rent of $1,200 per month, evenly divided with his cohabitant. Plaintiff further certified:

It is my understanding that Your Honor set support in the following way: Your Honor adjusted Rosa's expense to $1137 per week and imputed her a net income of $204.33 per week. As such, Your Honor required me to pay the difference ($933 per week). In determining my ability, Your Honor determined my weekly gross income to $884, based on a yearly income of $46,000 ($20,800 in wages, $12,000 in dividends, and $13,200 in rental real estate). Your Honor seemed to impute me an income of $700 per week based on the fact that I do not pay rent on the marital home and have a car that is paid for by my father's business. I believe that Your Honor found that I have $1584 in available income and that, therefore, I would have $651 in my pocket after paying $993 in support.

* * * *

To begin with, $884 is a gross number which amounts to approximately $680 per week in net income. Secondly, I no longer have dividend income since I sold my shares of Good Money, Inc. More importantly, I should not be imputed an amount for non-payment of rent. (I believe Your Honor imputed me $2000 per month for same). I understand that the Court may impute income to someone who lives rent free. However, this does not apply to me. I no longer live rent-free. Rosa does, in a home owned by my father. I pay rent in [an] apartment that I share with my girlfriend. As such, I do not have $651 in my pocket after paying support. After paying support, I have no income. I have borrowed money to keep current on support, but that arrangement cannot continue.

In opposition, defendant submitted a detailed certification, and accused plaintiff of selling real property without her knowledge prior to filing the complaint for divorce. She also included several American Express bills to demonstrate that plaintiff had incurred over $77,000 in credit-card charges over an 18-month period. Plaintiff filed a response, attempting to explain many of the expenses listed by defendant.

On April 8, 2005, the Family Part entered an order denying plaintiff's motion for reconsideration. In a separate order issued on that date, the court ordered plaintiff to pay defendant's attorney a counsel fee of $10,000 within thirty days.

On September 13, 2005, the Probation Department sought and obtained a warrant for plaintiff's arrest and incarceration to compel payment of accrued support arrearages in the amount of $13,381.79. The warrant provided that if plaintiff paid the sum of $5,000 towards those arrearages he could avoid incarceration. As we have noted, the parties appeared before the Family Part on that date for a case management conference, and the court conducted an ability-to-pay hearing.

During his direct examination, plaintiff offered as evidence three certifications of third parties purportedly addressing plaintiff's financial circumstances and purported loans he had received. The following colloquy ensued:

[PLAINTIFF'S COUNSEL]: And, Your Honor, while you're doing that, may I submit these -- the certifications to you and have them marked in evidence. There's 1 through 4. One has not been marked.

THE COURT: For what they're worth, certainly, I'll accept them.

[PLAINTIFF'S COUNSEL]: For what they're worth. Okay.

THE COURT: Well, because I don't know if they're going to be worth anything in this particular proceeding. I haven't seen them, and there's no testimony. Nobody can cross-examine these folks. They're certifications.

[PLAINTIFF'S COUNSEL]: That's correct, Your Honor.

THE COURT: There's nobody here. So for --

[PLAINTIFF'S COUNSEL]: With a man --

THE COURT: -- again, what they're worth, I'll accept them.

[PLAINTIFF'S COUNSEL]: All right. But with a man that I can't get up from Florida, this is the best I can do.


After consideration of all documents and testimony by the parties, the trial judge ruled that the plaintiff had the ability to pay the court-ordered amount of support, stating in pertinent part:

On August the 22nd, the matter came before a hearing officer for a review, based upon [plaintiff's] failure to pay. At that point in time, [plaintiff] did not come to court, chose not to attend. And, in his absence, despite the fact that regular and certified mail had both been delivered upon and signed, he chose not to appear, and a bench warrant was issued for his arrest.

At that point in time, he was found to be in arrears in the amount of $12,582.79, and the hearing officer opined that $5,000 would be a correct amount for him to pay in order to purge the contempt. [The judge] agreed with that, and on [September 9th], she cosigned that order. And there was also a discussion that if two payments were missed, [plaintiff] would be picked up from that point forward. That would be in the event that he paid the $5,000.

We're here on September the 13th, and the $5,000 does not appear to have been paid in any lump sum. Specifically what I have from the Probation Department is that [plaintiff] continued to make, from August 22nd until now, a steady payment of $450 on that day, $400 on August 24th, $400 on August 29th, $350 on September the 6th, and $400 on September the 12th. Never in full compliance with the order, but a consistent payment. So that at this point in time, he's in arrears in the amount of $13,381.79.

Now, [plaintiff] has previously come before the court with a motion to have the court reconsider its . . . order in the full amount, as I said, of $933. And after reviewing all the documents presented, not only by [plaintiff's] counsel, but by counsel for [defendant], I found nothing new, nothing glaring, nothing that proved an error, in either of my calculations previously [made]. No other matter of law that I looked at or had not looked at or looked at incorrectly.

At the time the parties were married, they lived, to use counsel's word, largely upon the largess of [plaintiff's] mom and dad. The employment that he has directly relates to them. The home that he lives in or that they lived in was owned by them. The cars that he drove were financed by them. Perhaps indirectly through the business, but let's face it, financed by them.

The monies he used to eat, to entertain, to travel, to buy things for his family and for himself and for business associates, all paid for by the business. And even today his living arrangement is paid by other parties, his food and daily expenses are supplemented by other parties, his vehicle is paid for by the business. And he lives no different from the way he used to, yet, he would have his family live differently.

I find that he has the ability to pay. He makes $787 a week [net]. He has little to no expenses. He lives the same way he did. I'm going to compel the $5,000 payment, or he'll be incarcerated.

After the court issued its decision, plaintiff's counsel requested a stay of the enforcement order for incarceration, pending appeal. The judge stayed the order pending appeal, provided the notice of appeal was filed by the end of that week.

After further discussion with plaintiff's counsel concerning plaintiff's ability to pay support, the motion judge further stated:

Well, Counsel, as soon as you go to the Appellate Division and show them the $20,000 that was put down on the Mercedes Benz and the $7,800 that he has in an annuity, the amounts of monies that his parents still give him and, while you're at it, you can show them the credit cards for the last year and the American Express cards and all the other monies that have been given to him, we'll let the Appellate Division -- please, the Appellate Division should know. They shouldn't only listen to this record, but they should take a look at and listen to the arguments from the past two motions and/or take a look at the certifications that were presented during the times that the parties were before the Court.

The court has the authority to award pendente lite support to either party in an action seeking dissolution of marriage. N.J.S.A. 2A:34-23. An application for pendente lite alimony is based on necessity. See Nebel v. Nebel, 99 N.J. Super. 256 (Ch. Div.), aff'd, 103 N.J. Super. 216 (App. Div. 1968). The purpose of the pendente lite order is to "maintain the status quo between the parties." Rose v. Csapo, 359 N.J. Super. 53, 60 (Ch. Div. 2002). In order to make a determination regarding the amount of support, the court should "consider[] all the circumstances relating to plaintiff's needs, defendant's means, and the living standard pursued by the two when they lived together. . ." Gross v. Gross, 22 N.J. Super. 407, 413 (App. Div. 1952).

The issue of whether gifts from third parties should be considered in the determination of marital lifestyle was discussed in Weishaus v. Weishaus, 360 N.J. Super. 281 (App. Div. 2003), aff'd in part, rev'd in part, 180 N.J. 131 (2004). There, the wife claimed that the parties' marital lifestyle was supported, at least in part, by the husband's wealthy mother. Id. at 286. The trial court had ruled that although it was clear that the couple's standard of living was supplemented by the husband's mother, it could not impute those monetary gifts as part of the standard of living because the court could not force the husband's mother to continue making such gifts. Ibid.

We held that a "judicial determination of marital lifestyle must be based on evidence detailing the parties' actual standard of living, whether supported exclusively by the parties' earnings or supplemented by liquidation of family assets, borrowing, or even gifts." Id. at 289. We noted that "'the standard of living during the marriage is the way the couple actually lived, whether they resorted to borrowing and parental support, or if they limited themselves to their earned income.'" Ibid. (quoting Hughes v. Hughes, 311 N.J. Super. 15, 34 (App. Div. 1998)). Once the marital lifestyle has been determined, the court may then focus on "establishing the amount of support required by the dependent spouse to maintain it. It is at this point that the supporting spouse's current earnings become relevant." Weishaus, supra, 360 N.J. Super. at 291.

In reviewing that issue, the Supreme Court declined to address issues relating to the source of the parties' income during the marriage. Weishaus, supra, 180 N.J. at 145. The Court explained, as follows:

The finding of the marital standard is just that a finding that is put to use in two settings: at the time of the court's equitable determination of an initial alimony award, . . . or later when a party seeks a modification of alimony. In the determination of the marital standard, the court establishes the amount the parties needed during the marriage to maintain their lifestyle. That is separate from the identification of the source of funds that supported that lifestyle, although that information is of use to a court when making an alimony award, or later when deciding a changed-circumstance application. In making either of those determinations, the court necessarily will consider whether there are sufficient presently available funds to sustain the marital standard. But if not, due in part to the loss of previous sources of income that cannot be replenished from other sources, then obviously the marital standard cannot be maintained.

[Id. at 145-46.]

"Although the supporting spouse's current income is the primary source considered in setting the amount of the award, his or her property, capital assets, and 'capacity to earn the support awarded by diligent attention to his [or her] business' are also proper elements for consideration." Innes v. Innes, 117 N.J. 496, 503 (1990), (quoting Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)).

Here, there is substantial credible evidence contained in the record that the lifestyle of the parties during the marriage was supported by the availability of funds from sources other than reported income. Plaintiff's family operates a check-cashing business in West New York, and the trial judge found that plaintiff's assertion that his only source of funds that could be applied toward living expenses was $1100 in gross income per week was not credible. In making this determination, the court considered all of the items which plaintiff asserted were paid for by his business, including his car payment, clothing, cigarettes, travel, other auto expenses, and housing. The court indicated that it considered these "gifts" from his parents as "emoluments of the plaintiff's employment."

On this record, we find no misapplication of discretion by the motion judge in making her findings. There was significant evidence in the record consisting of high credit card bills, along with other evidence of the plaintiff's spending, his large cash deposits and withdrawals into and from his accounts, along with perquisites from his employment that fully support the court's conclusion that he has the ability to comply with the pendente lite support obligation imposed.

Moreover, we find nothing in the record from which we can conclude that the trial judge's rejection of plaintiff's claim that his parents have suddenly cut off all monetary support constituted a misapplication of the judge's discretion. Plaintiff's excessive spending and extravagant lifestyle is well-documented in the record, and the court's conclusion that the gifts that his parents have consistently provided to support that lifestyle were emoluments of his employment.

Plaintiff also argues that the trial judge erred in not admitting into evidence and considering the certifications of third-party voluntary contributors presented during the ability- to-pay hearing. We disagree. The judge properly noted that the certifications were not subject to cross-examination. As such, they constituted hearsay and were properly not accorded dispositive weight. Moreover, the court considered the arguments embodied in those certification concerning plaintiff's sources of income and funds. The trial court admitted the certifications offered by the plaintiff, but properly concluded that without the ability to cross-examine the witnesses, they were of little value.

Plaintiff is employed by Francisco Armendariz Check Cashing on 51st Street in West New York, and is responsible for running the business. He equivocated in his testimony as to his interest in that business. Plaintiff also had an interest in another business called Good Money, Inc. He testified that he does not currently have anything to do with that business, and that his father purchased his stock therein and paid him $38,000. Plaintiff also testified that most of his living expenses are paid by his family's company. In addition, he shares his household with his girlfriend, and she pays for food and some household expenses. Plaintiff also leases a Mercedes vehicle for his own use, and a Honda Civic for use by his girlfriend.

On this record, the lifestyle of the parties and their child during the marriage clearly warranted the amount of support ordered, at least on a pendente lite basis. As in Platt v. Platt, 384 N.J. Super. 418, 426 (App. Div. 2006), "there is nothing to indicate that [plaintiff] did not continue to devote his best efforts and energies to the business." The judge found no reason why plaintiff cannot maintain the marital lifestyle for defendant and their child at least on a pendente lite basis; we agree. Whether the marital standard can be maintained following the pendente lite period must be tested on the basis of a final hearing where each party will have full opportunity to provide testimony and evidence concerning that issue.

Here, we review only the evidence presented at the ability-to-pay hearing. The findings and conclusions of the trial judge at that hearing are supported by substantial credible evidence contained in the record on appeal, see Cesare v. Cesare, 154 N.J. 394, 411-13 (1998) and Rova Farms v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), and we affirm substantially for the reasons articulated by the trial judge in her oral decision delivered on September 13, 2005.







August 3, 2006