MIRKA HELLER v. PETER KUBA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MIRKA HELLER, f/k/a

MIRKA KUBA,

Plaintiff-Appellant,

v.

PETER KUBA,

Defendant-Respondent.

__________________________________

April 11, 2014

Submitted April 2, 2014 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-1075-11B.

Mirka Heller, appellant pro se.

Peter Kuba, respondent pro se.

PER CURIAM

Plaintiff Mirka Heller appeals from those portions of a post-judgment order adjudicating her in violation of litigant's rights for failure to pay alimony in accordance with the parties' marital settlement agreement (MSA) and awarding defendant Peter Kuba his attorney's fees on the motion. Because entry of the order required a finding that plaintiff willfully violated the terms of the MSA, which could not be reached on this record without a hearing, we reverse.

The parties do not dispute that in accordance with the MSA incorporated into their judgment of divorce, effective July 1, 2012, plaintiff was to pay defendant reimbursement alimony of $20,000 at a rate of $700 per month. In October, defendant moved to Prague and directed plaintiff to send his monthly checks to him there. Defendant maintained that plaintiff stopped sending him checks in November. Plaintiff claimed that she mailed defendant checks which were not cashed.

Plaintiff produced proof of mailings to defendant in Prague with corresponding entries in her check register. She theorized that defendant wished to avoid the substantial fees the Czech banks charged for cashing overseas checks and sought an alternative way to receive the funds. Because a restraining order prevents direct communication between the parties, no discussion of an alternative occurred. Instead, plaintiff contends that defendant simply stopped cashing the checks and directed his lawyer to file an enforcement motion knowing that she could be made responsible for the fees.

Defendant filed an enforcement motion the following February. In addition to an order finding plaintiff in violation of litigant's rights for failing to pay alimony in accordance with the parties' MSA, defendant sought to establish the amount of arrears at $3500, and that future payments would be through probation via wage garnishment. Plaintiff opposed the motion, relying on her proofs of mailing and the corresponding entries in her check register through the date of the motion. She cross-moved to reduce her alimony because of increased health and pension costs imposed by her State employer and to require all future alimony payments to be paid to a bank account in the United States via direct deposit.

The judge denied the parties' request for oral argument, declaring that "there is no evidence beyond the motion papers themselves and the existing record necessary to a decision and any evidentiary deficiency as to any substantive issue cannot be cured at oral argument." He granted defendant's motion finding plaintiff in violation of litigant's rights, on the basis that "[p]laintiff had ample time to provide proof from her bank that the disputed checks were cashed. Her proof of mailing is insufficient." The judge set arrears at $3500 and compelled their payment within fourteen days,

unless [plaintiff] can demonstrate to Defendant that the disputed checks were cashed, with proofs from her bank. If the checks were not cashed, and Plaintiff believes Defendant is simply holding onto them, a finding the Court does not make, she can stop payment on the alleged[ly] previously mailed checks and pay the arrears owed . . . by way of direct deposit.

The judge denied defendant's request that future payments be made through probation and granted plaintiff's cross-motion for the establishment of an account in a United States bank through which she could pay alimony via direct deposit. He further denied plaintiff's request to reduce her alimony and granted defendant's motion for fees, finding, "[p]laintiff could have clearly confirmed whether the disputed checks were cashed prior to the motion filing. Fees and costs are granted in the amount of $1,230. See also Article 15 of the parties['] MSA authorizing fees for willful breach."1

Plaintiff appeals only those provisions of the order finding her in violation of litigant's rights for failing to pay alimony in accordance with the MSA and awarding counsel fees.

It is axiomatic that a motion in aid of litigant's rights cannot be granted unless the court finds that a party has willfully failed to comply with a judgment or order of the court. Saltzman v. Saltzman, 290 N.J. Super. 117, 123 (App. Div. 1996); Pressler & Verniero, Current N.J. Court Rules, comment 4.3 on R. 1:10-3 (2014). In addition to finding an ability to comply, which was not at issue here, the court must also be satisfied that the party's failure to comply was not excusable. Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App. Div. 2012).

Here, plaintiff contended that she did comply with her alimony obligation, and she offered proof that she mailed the checks to Prague. While the judge was certainly correct that those proofs were insufficient to show that defendant received the checks, they were probative of her good faith efforts to comply with the MSA. It is obvious that there was a genuine dispute on this record as to whether plaintiff mailed the alimony checks to Prague. The judge acknowledged the factual dispute by providing plaintiff an opportunity to either prove the checks were cashed or to stop payment on any outstanding checks and pay the arrears by direct deposit. Defendant also acknowledged that plaintiff may have mailed checks which he did not receive. In his brief on appeal, he contends only that by the time he filed his motion, "it became clear to Plaintiff that she received a windfall."

If plaintiff actually did mail the checks to Prague, she could not be in willful violation of the MSA, even though the judge properly determined that she owed arrears. Because it was not possible to resolve the question without making the sorts of credibility determinations that can only be done at a hearing, we reverse the order adjudicating plaintiff in violation of litigant's rights. Because the award of attorney's fees was based on defendant having prevailed on his Rule 1:10-3 motion, or, alternatively, a finding of willful breach of the MSA, we likewise reverse it as well. See Jersey City Redevelopment Agency v. Clean-O-Mat Corp., 289 N.J. Super. 381, 405-06 (App. Div.), certif. denied., 147 N.J. 262 (1996) (noting an award of attorney's fees under R. 1:10-3 is limited to a prevailing party).

Reversed.

1 The parties, who are self-represented on appeal, have not provided us with a complete copy of their MSA or their motion papers in the trial court in violation of Rule 2:6-1(a)(1). Accordingly, we do not have the fee certification filed with the trial court.