CAROLINE KENT v. JOEL KENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CAROLINE KENT,

Plaintiff-Respondent,

v.

JOEL KENT,

Defendant-Appellant.

________________________________________________________________

July 17, 2014

Submitted June 25, 2014 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-219-12.

Joel Kent, appellant pro se.

Caroline Kent, respondent pro se.

PER CURIAM

Defendant Joel Kent appeals from provisions of a March 13, 2013 order denying him relief from January 4 and January 8, 2013 orders that enforced child support, and denying retroactive relief from a portion of his child support obligation that he claims was allocated for work-related child-care expenses. Defendant argues that because he was in the military he was entitled to the remedies he seeks or, alternatively, a remand for recalculation of child support. Because he had no defense to the enforcement proceeding, his request for certain credits was granted, and his request for retroactive reduction of child support was properly denied, we affirm.

Defendant states he has been an active member of the United States Navy since April 2001, before he married. The parties were married in Jamaica in 2003 and had one child who was born in 2004. They were divorced in Virginia in 2006 and agreed to a child support amount which was increased by the Virginia court on July 15, 2010. Plaintiff Caroline Kent, who was living with their child in New Jersey, filed an enforcement motion in August 2011. After Virginia relinquished jurisdiction to New Jersey in January 2012, the New Jersey judge delayed the return date because defendant was in the United States Navy and could not attend the hearing.

The judge noted on the record that his law clerk spoke to defendant, sent him a copy of the motion papers and told him to respond. The motion papers were returned as undelivered, although the judge believed they were sent to the address defendant gave the law clerk. Defendant states in his papers that he was told by the law clerk to respond by December 20, 2012 and only found out about the January 3, 2013 motion date three days before that date. He explains that he did not receive a copy of the motion papers, although plaintiff submitted a copy of a post office form signed by defendant on August 10, 2011, which she indicates demonstrates defendant received a copy of the motion papers when originally filed. Defendant may not be aware that the motion papers he received on August 10, 2011 formed the basis for the motion decided in January 2013.

Plaintiff also submitted as an attachment a copy of an August 12, 2011 letter from defendant to the court requesting an adjournment of the original September 2, 2011 return date. Defendant did not provide a letter from his commanding officer with this adjournment request. See 50 U.S.C.A. app. 522(b)(2)(B) (when a servicemember has notice of a proceeding, prior to requesting a stay of proceeding the servicemember shall include a "letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized"). In defendant's letter, he sought to invoke the Servicemembers Civil Relief Act, 50 U.S.C.A. app. 501 to 597, and the New Jersey Soldiers' and Sailors' Civil Relief Act, N.J.S.A. 38:23C-1 to -36 1 to request a stay of the proceedings or appointment of counsel. See 50 U.S.C.A. app. 521(b)(2), (d) (a court may not enter a judgment when a servicemember does not receive notice of the proceedings until "after the court appoints an attorney to represent the defendant" or, on counsel or the servicemember's request, the court "shall grant a stay of proceedings for a minimum of 90 days" if there "may be a defense to the action" or counsel "has been unable to contact the defendant to determine if a meritorious defense exists.").

The motion was finally heard on the papers, unopposed, on January 4, 2013, at which time the judge ordered defendant to bring current his child support and, in the future, pay through the Union County Probation Department. An amended order was entered on January 8, 2013 indicating the precise amount of monthly support as $947 plus $100 towards arrears of $735.10.

On March 13, 2013, the judge reconsidered his orders at defendant's request. He also considered defendant's application for additional credit toward arrears and the return of $11,028.85, representing that portion of child support allocated in Virginia for plaintiff's work-related child-care costs that accumulated while plaintiff was unemployed. Defendant found out plaintiff was unemployed for over two years, although she continued to collect $370.51 per month from defendant as a contribution to the total $670 monthly work-related child-care expenses originally used to calculate child support. In his March order, the judge granted defendant $211.90 credit for overpayment of arrearages defendant made directly to plaintiff, but denied his application for return of that portion of child support calculated on the basis of work-related child-care. The judge also denied defendant's application for a refund of extra-curricular and medical expenses.

We discern defendant's argument to include a claim that his rights under the Servicemembers Relief Acts were violated because the judge did not appoint a lawyer to represent him in his absence. See Bernhardt v. Alden Cafe, 374 N.J. Super.271, 281-82. (2005) (holding that the trial court "was obligated either to appoint counsel or to take some other appropriate step to protect [the servicemember's] interests" before entering a default judgment).

Because we determine that defendant had no basis for defending against the enforcement motion beyond the relief granted in March 2013, and because defendant could have moved for recalculation of child support due to changed circumstances at any time, we need not determine whether defendant'srights under the Servicemembers' Relief Acts were assiduously preserved. See50 U.S.C.A. app. 521(g)(1) (stating that a default may be vacated or set aside if the servicemember was "materially affected by reason of that military service in making a defense" and if "the servicemember has a meritorious or legal defense to the action"), see also PNC Bank, N.A. v. Kemenash, 335 N.J. Super. 124, 129 (App. Div. 2000) (stating that a judgment entered in violation of the Act is "not void but voidable and only by a person within the protection of the statute and affidavit [of non-military service] requirement").

The spirit of the federal and New Jersey Acts certainly encompasses the public policy to give servicemembers a fair opportunity to be heard in court in every proceeding. Newman v. Bd. of Review, 434 N.J. Super. 483, 489-90 (App. Div. 2014). Here, in deference to defendant's request as an active servicemember, the judge delayed the motion for more than a year before deciding plaintiff's application in January 2013. Just two months after the January 4 and 8 orders were signed, the judge listened to defendant's argument and considered defendant's cross-application. At that time the judge gave defendant the credit requested for child support payments he had made directly to plaintiff.

Defendant's claim that his child support should be reduced retroactively is not a valid defense to plaintiff's 2011 motion to enforce litigant's rights. Defendant's contention that he overpaid for work-related child-care was a cross-motion that could have been filed at any time and which was decided timely on its merits by the family judge's March 13, 2013 order. Defendant's rights were not materially affected by his absence at the enforcement hearing as his cross-application was heard on its merits shortly thereafter.

Defendant's cross-application to require plaintiff to refund the portion of child support attributable to work-related child-care costs was properly denied. As the judge stated, child support cannot be retroactively diminished. N.J.S.A.2A:17-56.23a states in pertinent part that "[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification . . . ." Defendant maintains that he did not move earlier for an adjustment of support because he was unaware that plaintiff was not working. Unless otherwise ordered, divorced parents are not required to inform the other parent of employment status. Had a recalculation of child support been ordered earlier, it is not clear from the record whether support would have increased or decreased. If plaintiff had no income, defendant's child support obligation would have increased, which increase may have equaled or exceeded the decrease occasioned by the removal of the work-related child-care expense. SeePressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R.5:6A (2014).

Defendant's reliance on cases allowing a termination of child support retroactive to the date of emancipation is misplaced. SeeMahoney v. Pennell, 285 N.J. Super.638, 643 (App. Div. 1995) (holding that a supporting spouse may be relieved from paying child support arrears for the time period after the child is emancipated). Unlike emancipation, after which child support is no longer due, defendant maintains a duty to provide support to his minor child. Ibid. Additionally, defendant seems to object to the provision of the January 4 order directing support to be paid through the Union County Probation Department. Such payment is generally required. R.5:7-4(b).

To the extent that any issues raised by defendant may not have been fully addressed in this opinion, they have insufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We note that the New Jersey statute has not been amended to comply with the federal statute's significant 2003 amendments.