TINA PIETRONTONE v. THOMAS KIERNAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TINA PIETRONTONE,

Plaintiff-Respondent,

v.

THOMAS KIERNAN,

Defendant-Appellant.

July 3, 2014

Argued June 17, 2014 Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1095-99.

Appellant Thomas Kiernan argued the cause pro se.

Respondent Tina Pietrontone argued the cause pro se.

PER CURIAM

On October 12, 2012, defendant Thomas Kiernan, who is self-represented, filed a notice appealing three Family Part decisions dated July 13, 2012, August 24, 2012, and September 14, 2012. Rule 2:4-1 requires appeals to be taken within forty-five days of the entry of the challenged order. We therefore dismiss Kiernan's untimely appeal of the first two orders, and limit our comments to the September 14, 2012 order. As to the September 14 order, we affirm in part and remand for an audit of Kiernan's account.

The September 14, 2012 order issued as a result of plaintiff Tina Pietrontone's notice of motion and Kiernan's cross-motion for various forms of relief. The relief Kiernan sought pertinent to this appeal was (1) reimbursement for wage garnishments from his pay deducted for alimony after Pietrontone's remarriage on April 11, 2012, which he claimed totaled $2375, and for child support; (2) documentation supporting the exact date of Pietrontone's remarriage, as opposed to her sworn statement; and (3) a correction of the Family Part judge's Child Support Guidelines calculation, because Kiernan alleged the judge erroneously employed a $12 deduction for the children's health insurance premiums and not the "either $14.66 or 16.50" actually taken from his pay.

In the September order, the judge found that Kiernan's motion to compel Pietrontone to provide "proof" of the date of her remarriage was moot, and that the issue of disgorgement of alimony paid post-remarriage was also moot. The judge also denied Kiernan's request to modify child support due to the higher amounts he alleged that he paid for the children's health insurance because "the evidence submitted [did] not support" the claim. Subsequent to the entry of that order, Kiernan's obligation to pay child support for his remaining unemancipated child was terminated, effective as of that child's college graduation on May 10, 2013. Earlier, Kiernan's obligation to pay child support for the older child on the order was terminated, due to his emancipation, effective June 18, 2012. Thus, alimony was terminated April 11, 2012, and child support terminated completely effective May 10, 2013.

In rendering his decision, the Family Part judge first reviewed the parties' extensive post-judgment motion history. He noted that he previously terminated Kiernan's alimony obligations effective April 11, 2012, and ordered probation to cancel the obligation as of that date. He denied Kiernan's request for further modification of child support because in his view, Kiernan's pay stubs supported the figure that he relied upon as opposed to the figure found in Kiernan's employer's benefits booklet.

During oral argument, Pietrontone, who is self-represented on the appeal, drew our attention to an exhibit in her appendix, a summary issued by the probation department reflecting payments. She claimed that it supported her assertion that Kiernan had already received at least partial credit for overpayments on alimony because she received no payments from probation, not even child support, from July 31, 2012, to September 6, 2012, when child support payments resumed. The exhibit, unfortunately, was not enlightening.

Turning to Kiernan's points on appeal, we reiterate the well-established principle that evidential decisions made by a trial judge are subject to deferential review under an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). Although the "standard defies precise definition, it arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

We cannot agree that it was an abuse of discretion for the Family Part judge to have decided to fix the remarriage date based on Pietrontone's certification alone as opposed to an official document. We also cannot say that the judge's reliance on paystub figures in making his child support calculations was an impermissible basis for his decision.

The heart of Kiernan's appeal is his contention that, despite court orders terminating alimony and child support, he never received a satisfactory explanation from probation as to the disposition of funds that were deducted from his wages. He asserts that probation told him exact figures were necessary from the court for that to be accomplished.

To our knowledge, probation can calculate debits and credits in support accounts so long as the relevant dates, whether of the creation of an obligation or its termination, are provided by order. We therefore remand the matter for further consideration by the Family Part in Union County. Proceedings shall be conducted wherein probation provides, in an intelligible form, the calculation of credits and debits on Kiernan's account, subsequent to the entry of the orders terminating child support and alimony. Pietrontone does not even dispute Kiernan's entitlement to credits after the relevant dates. Rather, the dispute requires an audit of Kiernan's account, after which the Family Part judge can determine whether Pietrontone owes Kiernan funds or whether, if funds are being held by probation, they must be released. We remand the matter for further proceedings in accord with this decision.

Affirmed in part, remanded for further proceedings.