ESTHER KUFAFKA, n/k/a/ ESTHER BAILEY v. IRA KUFAFKA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5105-05T25105-05T2

ESTHER KUFAFKA, n/k/a/

ESTHER BAILEY,

Plaintiff-Respondent,

v.

IRA KUFAFKA,

Defendant-Appellant.

_______________________________________

 

Submitted January 23, 2007 - Decided March 21, 2007

Before Judges Lisa and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, FM-13-2219-97C.

David E. Schafer, Assistant Federal

Public Defender, attorney for appellant.

Esther Bailey, respondent pro se, did not file a brief.

PER CURIAM

Defendant Ira Kukafka appeals from an order denying his motion to reduce the amount of alimony and child support he is obligated to pay his former wife, plaintiff Esther Kukafka, now known as Esther Bailey, pursuant to a final judgment of divorce entered on December 11, 1997. Because the court did not consider whether defendant's incarceration warranted deferral of the decision on the motion pending the obligor's release from the custodial sentence, we reverse and remand for further consideration. See Halliwell v. Halliwell, 326 N.J. Super. 442, 457-58 (App. Div. 1999).

Pursuant to the default judgment entered on December 11, 1997, defendant was required to pay child support in the amount of $400 per week and alimony in the amount of $350 per week. As of October 19, 2005, defendant's arrears totaled $304,143. On March 22, 2005, a judge of the Federal District Court for the District of New Jersey sentenced defendant to a term of incarceration for two years as a consequence of his conviction for failure to pay child support owed. See 18 U.S.C.A. 228. In addition, defendant was ordered to pay restitution in the amount of $145,337 to the Monmouth County Probation Department at the rate of $400 per week. On March 29, 2005, the United States Court of Appeals for the Third Circuit entered an order directing the Federal Public Defender to represent defendant on appeal from that conviction. On April 27, 2005, defendant's application for bail pending appeal of his federal conviction was denied. Defendant filed this motion for reduction of his support obligations on March 6, 2006. He argued that he had medical problems diabetes and depressive neurosis that had an impact on his ability to pay support in accordance with the judgment, and he submitted a case information statement that reflected no income and his financial dependence upon his mother.

Relying upon Topham-Rapanotti v. Gulli, 289 N.J. Super. 626, 633-34 (Ch. Div. 1995), and a passage from this court's decision in Halliwell, supra, 326 N.J. Super. at 459-60, the motion judge concluded that because incarceration is a consequence of voluntary conduct it cannot constitute changed circumstances warranting modification of support. The judge overlooked the holding in Halliwell and a subsequent decision of this court disapproving Topham-Rapanotti. See Kuron v. Hamilton, 331 N.J. Super. 561, 570 (App. Div. 2000) (rejecting the bright line approach employed in Topham-Rapanotti by precluding modification based upon the voluntary nature of the conduct).

In Halliwell, we criticized an approach that fails to recognize that persons who are incarcerated because they chose to commit a crime, are unlike obligors who elect not to work because they cannot opt to earn additional income while in prison. 326 N.J. Super. at 459. We held that courts should consider the fact that N.J.S.A. 2A:17-56.23(a) precludes retroactive modification and the fact that an incarcerated obligor may leave prison "burdened by an insurmountable obstacle" that may work to deter payment of support in the future. Id. at 457, 460.

In Halliwell, we specified the procedure that courts should follow when faced with a request from an incarcerated obligor to modify support:

[I]n cases where the obligor has been sentenced to a lengthy period of incarceration and has no assets, [the better practice] would be to defer any action on the obligor's motion and to transfer the matter to the inactive calendar pending the obligor's release from the custodial sentence. Coincident with the obligor's release, defendant's motion would be considered after each party filed an updated case information statement. Utilizing the child support guidelines then in effect, the court could easily enter an order retroactive to the date of the obligor's initial motion divisible between current support for the future and an arrearage payment attributable to the period of incarceration subsequent to the date of filing of the obligor's modification motion but based upon the obligor's earning capacity [at the time of release].

[Id. at 457-58.]

We do not view a term of incarceration for two years as too brief to implicate concerns for fairness and practicality that the procedure developed in Halliwell is designed to address. See id. at 458. We also note that in this case the restitution order imposed as a consequence of defendant's conviction is relevant to his ability to pay support. As we reasoned in Halliwell, "[s]uspending the payment of support and postponing a decision as to future support eliminates the accrual of arrears, yet does not reward the criminal who is fully apprised that upon release the support obligation will be reinstated and, based upon his ability to pay, he will be required to pay an arrearage which will be established commensurate with his income." Id. at 460.

The order is vacated and the matter is remanded for further proceedings consistent with this decision. We do not retain jurisdiction.

 

 

The post-judgment order and motions were erroneously captioned as Ira Kufafka v. Esther Bailey. We retain the caption from the divorce action.

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A-5105-05T2

March 21, 2007