ELLEN WING v. FELIPE NOGUERA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1505-07T21505-07T2

ELLEN WING,

Plaintiff-Respondent/

Cross-Appellant,

v.

FELIPE NOGUERA,

Defendant-Appellant/

Cross-Respondent.

____________________________________

 
 

Submitted November 17, 2008 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-9290-96.

Travieso Law, P.C., attorneys for appellant/cross-respondent (Andr G. Travieso, on the brief).

Lucas E. Phillips, Jr., attorney for respondent/cross-appellant.

PER CURIAM

In this child support case with international aspects, Felipe Noguera ("the father") appeals a Family Part order determining that he owed $117,104 in child support arrears to his ex-wife, Ellen Wing ("the mother").

The crux of the husband's argument is that the Family Part erred in giving full faith and credit to the child support obligations set forth in the parties' consent divorce decree entered in the Republic of Trinidad and Tobago in 1996, which the mother never filed or docketed in the New Jersey courts until eleven years later. The father also complains that the motion judge failed to credit him for direct monetary payments that he has made over the years to his children.

The mother cross-appeals contending that the motion judge undercounted the outstanding arrears by improperly giving the father a credit on his support obligations for a thirty-four month period when their daughter resided with him abroad.

We affirm.

These are the facts and circumstances relevant to our consideration of the issues before us. The parties married on February 6, 1984, in the Republic of Trinidad and Tobago. They produced three children: a son born in December 1983, a second son born in March 1986, and a daughter born in February 1989.

The father is a highly educated man. He is a graduate of Harvard College, the Johns Hopkins School of International Affairs, and the Fletcher School of Law and Diplomacy at Tufts. He has also been a fellow in the prestigious Fulbright program. During the marriage, the father worked as the secretary-general of a Caribbean telecommunications organization, while the mother supported the family as a homemaker. The mother ultimately obtained a degree in ophthalmic sciences after the parties divorced.

In April 1996, the father filed a petition for divorce in the High Court of Justice in Trinidad. Meanwhile, the mother, who had moved from Trinidad to New Jersey, obtained an order under the non-dissolution docket in the Family Part on June 25, 1996, granting her custody of all three children. She did not, however, file a divorce complaint in the Family Part.

The parties, both of whom were represented by counsel in Trinidad, amicably resolved their differences concerning the divorce. Accordingly, they entered into a consent decree in the High Court on July 19, 1996, pursuant to Section 47 of the Republic's Matrimonial Proceedings and Property Act.

The consent decree recited various terms regarding custody of the minor children, a visitation schedule, child and spousal support and a property settlement. Pursuant to the decree, the parties decided to share joint legal custody of the children, with the mother being entrusted with their primary residential care and the father receiving parenting time "during the Summer and one or other of the Easter and Christmas vacation each year, the dates of such access to be agreed between the parties."

Significantly, on the subject of child support, the consent decree specified that:

the payments to each child [from the father] shall be $500 US per month until each child completes his education or ceases to attend High School or attains the age of 18 age [sic] years whichever is the later whereafter the [father] will be responsible for their tertiary education[;] . . .

. . . .

[T]hat so long as the said children are attending an educational establishment the [father] will pay for tuition and the cost of books for said children[;]

[T]hat [the father] will pay the further sum of $100 US per month to [the mother] for medical insurance coverage for which the [the mother] is at present paying[;]

[T]hat [the father] will accompany the children to New Jersey on August 26, 1996, where he will deliver them to the home of the [mother] . . . [.]

The consent decree further anticipated that the parties would soon have its terms reciprocally filed in the New Jersey courts:

[T]hat the parties hereby undertake to have the terms of this order made part of the court proceedings in the Superior Court in New Jersey between the parties hereto before August 26, 1996.

[(Emphasis added).]

The decree did not assign to either party the primary responsibility for assuring that the terms of the divorce would be so entered in the New Jersey courts.

In a companion order to the consent decree, also dated October 3, 1996, the High Court declared that the arrangements made for the welfare of the three children were satisfactory for the purposes of Section 47 of the Matrimonial Proceedings and Property Act. Apparently, no subsequent orders from the Trinidad courts were ever issued in this matter.

Moreover, until the instant proceedings brought in the Family Part in 2007, neither party filed any papers to register the consent decree from Trinidad in the Superior Court of New Jersey, despite the language of the decree calling for such a filing.

After their parents' marriage dissolved, the children permanently relocated with their mother in New Jersey. The father remained in Trinidad until August 2006 when he moved to the United States. For a period of time, he worked in Florida as the Chief Communications Officer of the Miami-Dade County public school system. The father eventually sold his home in Trinidad and used a portion of the sale proceeds to pay the mother the sums that he owed her under their property settlement.

The children attended different schools while living in New Jersey with their mother. The two older boys, partially funded by scholarships, attended Montclair Kimberley Academy, a private high school. The mother paid the difference in tuition, cumulatively amounting to $36,505, inclusive of the cost of books. The older son thereafter attended and graduated from the University of Pennsylvania. In addition, the younger son was scheduled to graduate from Rutgers University around the time of Family Part proceedings in 2007.

In June 2002, the daughter, who was then age thirteen, went to Trinidad to live with her father. She resided with him there until September 2005. During that time, the father enrolled her in a private school in Trinidad. Apparently using borrowed funds, the father paid her entire tuition, despite being unemployed from January 2002 through September 2003. When she returned to New Jersey, the daughter briefly attended private school at St. John's in Orange, which charged $2,225 annually for tuition and books. In 2007 the daughter graduated from Orange High School, and she was subsequently admitted to Howard University.

The father claims to have paid in excess of $195,000 directly to his children between January 1995 through the time of the Family Part proceedings in 2007. He asserts that he paid significant funds to support his sons while they attended college, portions of which were admittedly undocumented. According to the father, he sent "the money to them on good faith, but I never had any documentation as to what they were paying or what - - what corresponding payments were being made." The father maintains that he continued to provide monetary assistance to his older son even after that son graduated from college. He further notes that he had sent money to his younger son to enable that son to visit a girlfriend in Canada.

By the specific terms of the consent decree, the father's agreed-upon obligation to pay to the mother $500 per month in child support for the older son ceased as of September 2002. Another $500 monthly obligation likewise ended as to the younger son in September 2004, and as of September 2007, the obligation ended for the daughter.

Utilizing these respective dates and the $500 per child monthly amount, the total child support obligations due from the father for the entire post-divorce period totaled $134,000. The mother contends this sum was substantially unpaid. The mother also contends that the father has failed to pay in full the required costs of his children's secondary and higher education, as well as the requisite payments for their medical insurance.

The unpaid sums prompted the mother to file, with the assistance of counsel, an order to show cause in the Family Part in May 2007, seeking to enforce the father's child support obligations under the 1996 foreign consent decree. The mother also sought to restrain the father from leaving the United States while these sums remained outstanding.

The Family Part denied the requested restraints on the father's travel and set a hearing for the dispute over child support. The father appeared in the proceedings pro se.

The father argued that the consent decree could not be enforced because it was not lodged in the New Jersey courts before the August 26, 1996 deadline. He also argued that he was entitled to substantial credits for any support that was allegedly due.

Noting that the parties disagreed over the monetary amounts involved, the motion judge, Judge Sherry Hutchins-Henderson, requested the father to prepare a chart depicting the sums that he claimed to have paid over time in support for his children. The father subsequently prepared such a chart. He also supplied the court with extensive copies of receipts, checks and money orders showing certain payments that he had made. Many of those documents were duplicative, and the parties continued to disagree as to the amounts owed as well as the father's obligation to pay future college expenses for their daughter.

The parties returned to court on September 7, 2007. At that time, the motion judge ruled, as a matter of law, that the terms of the Trinidad consent decree should be honored on principles of comity, even though it was never registered here before 2007. Accordingly, the judge undertook to calculate the father's child support obligations from July 1996 through August 2007. She did so by examining the amounts that he actually paid for the benefit of the children to the mother during those years. The judge also determined the amounts of unpaid educational and medical expenses.

Specifically, after what Judge Hutchins-Henderson described in her letter opinion as "a careful review of the documents and the creation of ledgers," the judge calculated that during the years at issue the father should have paid the mother $209,954 in child support. Instead, the judge found that he had paid her only $92,850. As part of her calculations, the judge gave the father a credit for the thirty-four months that the daughter had lived with him in Trinidad. These painstaking computations yielded an unpaid difference of $117,104.

The judge did not include the costs of transportation or the children's summer programs in her calculations. She also did not give the father credit for outstanding and unpaid medical bills. With respect to the money that the father paid directly to the children in college, the judge deemed those payments gratuitous, and she did not include them in the totals. Lastly, the judge determined that the father was under a continuing obligation to pay for the college expenses and medical coverage for the children while they remained in school.

On appeal, the father argues that the Family Part erred in: (1) enforcing the consent decree from Trinidad and Tobago; and (2) treating his direct payments of money to the children as gratuitous. In her cross-appeal, the mother argues that the court erred in awarding the father a credit in support corresponding to the daughter's thirty-four-month temporary residency with him.

We first consider the significance of the 1996 consent decree issued in Trinidad and Tobago. Both parties acknowledge that, as parents, they share a legal responsibility for the financial welfare of their children until they become emancipated. The question is whether the terms of the consent decree must be followed in allocating and enforcing those responsibilities.

We are cognizant that the Republic of Trinidad and Tobago is not a signatory to a reciprocity agreement or international convention with the United States for the purposes of enforcing family support obligations. See U.S. Department of State, Public Notice No. 5868, 72 F.R. 39127-28 (July 17, 2007) (listing the co-signatory countries). Nonetheless, the absence of such a formal agreement or convention does not end the analysis. Principles of inter-jurisdictional comity still apply.

Comity is the recognition that one nation gives to the "legislative, executive or judicial acts of another nation." Hilton v. Guyot, 159 U.S. 113, 164, 16 S. Ct. 139, 143, 40 L. Ed. 95, 108 (1895). It is more than a "mere courtesy" but less than an "absolute obligation." Fantony v. Fantony, 21 N.J. 525, 533 (1956). Comity is "grounded in the policy of avoiding conflicts in jurisdiction, . . . and the general principle that the court which first acquires jurisdiction of an issue has precedence, in the absence of special equities." Ibid. "It has become necessary and commonplace . . . for courts to interpret and enforce the laws of other jurisdictions." Cogen Techs. v. Boyce Eng'g Int'l, Inc., 241 N.J. Super. 268, 273 (App. Div.), certif. denied, 122 N.J. 358 (1990).

Accordingly, comity represents "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its law." Fantony, supra, 21 N.J. at 533.

Two conditions must be met for a court to recognize the judgment of a foreign court under the principle of comity. Ibid. First, the foreign court must have had jurisdiction of the subject matter. Ibid. Second, the foreign judgment must not offend the public policy of our own State. Ibid. (citing Zanzonico v. Neeld, 17 N.J. 490, 495 (1995)); see also Innes v. Carrascosa, 391 N.J. Super. 435, 491 (App. Div. 2007) ("Our courts have long held that recognition of foreign judgments should not be given where such decisions violate the public policy of this state . . . .").

Generally speaking, a term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable, or if the interest of enforcement is outweighed in the circumstances by a policy against the enforcement of the terms. See Restatement (Second) of Contracts 178. Consideration should be given to the parties' justified expectations, any forfeiture that would result in denial of enforcement of the terms, and any special interest in the enforcement of that term. Ibid.

In New Jersey, public policy mandates that responsibility of children is an "absolute obligation which must be borne by the parents of the children." Bergen County Welfare Bd. v. Cueman, 164 N.J. Super. 401, 404 (Juv. & Dom. Rel. Ct. 1978). Moreover, in the related area of child custody, it is in the public policy of New Jersey to assure minor children of frequent and continuing contact with both parents after parents have dissolved their marriage and to encourage the parents to share the rights and responsibilities of child rearing. N.J.S.A. 9:2-4.

Here, the parties agree that the Trinidad and Tobago court had subject matter jurisdiction over their family and their divorce. This is not an issue.

As to the second prong of the comity analysis, the father maintains that enforcement of the foreign decree would violate New Jersey public policy. He asserts that public policy requires this court to honor the plain terms of the consent decree, specifically its provision that the decree was to be "made part of the court proceedings in the Superior Court . . . before August 26, 1996." Because that step was never taken, the father accuses the motion judge here of, in essence, rewriting the parties' agreement.

Judge Hutchins-Henderson did not, however, insert any new terms into the parties' agreement. Rather, the judge simply enforced the substantive terms addressing child support that were included in the consent decree. Such enforcement of a key facet of the divorcing parties' bargain comports with the public policy of our State. See also Faherty v. Faherty, 97 N.J. 99, 106 (1984) (recognizing that marital separation agreements are enforceable in this State, insofar as they are just and equitable). The father does not argue that when he entered into the decree he was coerced into support responsibilities that were unjust or inequitable. To the contrary, the court that entered the decree specifically declared that it was "satisfactory" and complied with local matrimonial laws.

The laws of our own State mandate that parents share the burden of raising their children. The father's rigid interpretation of the consent decree's filing provision runs counter to that public policy, as he is trying to avoid the decree's support obligations altogether because the decree was not filed separately in this State. His argument, if accepted and carried to its logical limits, would leave the mother to bear the burden of supporting the children completely by herself. Such a result is inconsistent with our State's notion of the mutual responsibilities of parenthood.

Basic principles of contract law also weigh against the father's position. The consent decree does not state that the filing of the decree in a New Jersey court was a necessary condition to its enforceability. Even if such a condition were imputed, "[t]o the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange." Restatement (Second) of Contracts 229. We decline to create such "disproportionate forfeiture" here. Instead, we construe the decree's reference to August 26, 1996 as merely an effort to fix an effective starting date for the enforcement of the parties' obligations in New Jersey.

Moreover, despite the lack of a formal reciprocal filing of the decree in the Superior Court until 2007, the parties to the agreement acted as if it were a mutually binding obligation. The parties dissolved their marriage, divided their belongings, relocated and visited their children, and paid or received alimony checks and child support as if they had a binding contract. Under contract law, an agreement may be implied in fact by conduct. See Conway v. 287 Corporate Ctr. Assoc., 187 N.J. 254, 269 (2006). Here, until the present litigation arose, the parties' conducted themselves as if they had a mutuality of obligation. The ministerial step of filing the decree a second time only would have formalized that already-existing mutual understanding.

The father points out that no effort was made to register the consent decree pursuant to the Uniform Interstate Family Support Act ("UIFSA"), codified in New Jersey at N.J.S.A. 2A:4-30.65 to -30.123. However, UIFSA did not become effective until March 5, 1998, almost two years after the decree was entered in Trinidad and Tobago.

In sum, we affirm the Family Part's enforcement of the consent decree on principles of comity. As to the specifics of Judge Hutchins-Henderson's calculations, we defer to her conscientious endeavor to determine the net amount owed fairly and accurately. The expertise of the Family Part judges in making child support calculations, a task which they do routinely and repetitively on virtually every court day, warrants our deference. See Cesare v. Cesare, 154 N.J. 394 (1998). The record provides ample support as to the reasonableness of the judge's computations.

We also discern no reversible error in the judge's refusal to treat the father's direct monetary payments to his children as credits towards the child support due to the mother. The consent decree, in relevant part, reads "that so long as the said children are attending an educational establishment [the father] will pay for tuition and the cost of books for the said children." Funds not devoted to such tuition or books were properly treated as a gift. The consent decree did not permit the father to make any payments directly to the children to satisfy his obligations under the decree without the contemporaneous acquiescence of the mother.

The mother had a right to count on the stream of child support specified in the decree to meet the children's needs. Direct payments to the children would not help the mother pay for the fixed and long-range costs of having the children reside with her, such as roof expenses. Although the father deserves commendation for voluntarily sacrificing his needs and sending money from time to time to his children, those informal payments were reasonably treated by the motion judge as gratuities.

In that same vein, we reject the mother's cross-appeal of the thirty-four month credit recognized by the motion judge for the period that the daughter lived with her father in Trinidad. This multi-year change in living quarters bespeaks an implied agreement of the parties for the father to assume, in lieu of the $500 monthly stipend to the mother, complete financial responsibility for their daughter while she lived under his roof. The father even paid to send her to a private school. Given the duration and nature of the relocation, it was appropriate for the motion judge to take that interval into account. We do not find this particular credit offensive to the anti-retroactivity policies of N.J.S.A. 2A:17-56.23a.

Lastly, the father urges that his child support should have been modified because of adverse changes in his financial situation. He notes that he has been unemployed at times and now has two more children, while the mother, formerly a full-time homemaker, now has enhanced earning capability from her degree in ophthalmic science. Although N.J.S.A. 2A:34-23 and case law permits such modifications where there have been sustained material changes of circumstances, see Lepis v. Lepis, 83 N.J. 139, 146 (1980), see also Monmouth County Div. of Social Serv. for D.M. v. G.D.M., 308 N.J. Super. 83, 93 (Ch. Div. 1997), the father never filed a motion in the Family Part specifically seeking such prospective relief. He remains free to do so, notwithstanding our disposition of the present appeal.

 
We therefore affirm the Family Part's order and reject the appeal and cross-appeal.

The father has two additional children from a later relationship. At the time of the proceedings in the Family Part in the fall of 2007, those two other children were ages ten and seven.

We note that there is no dispute before us concerning the implementation of the property settlement. Nor are there any disputes respecting alimony, which terminated when the mother obtained her degree.

(continued)

(continued)

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A-1505-07T2

 

December 12, 2008