TERRI J. HARRISON v. ANTHONY GORDON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TERRI J. HARRISON,

Plaintiff-Respondent/

Cross-Appellant,

v.

ANTHONY GORDON,

Defendant-Appellant/

Cross-Respondent.

_________________________________________________

March 25, 2014

 

Submitted February 25, 2014 Decided

 

Before Judges Fisher and Koblitz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07391-96.

 

Helfand & Associates, attorneys for appellant/cross-respondent (Tanya N. Helfand, of counsel and on the brief).

 

Grayson and Associates, L.L.C., attorneys for respondent/cross-appellant (Bette R. Grayson and Elena K. Weitz, on the brief).

 

PER CURIAM

In this appeal, defendant Anthony Gordon argues that the motion judge erred in fixing his child support arrears in the wake of other orders entered, over the course of many years, by a now-retired judge that repeatedly addressed issues relating to child support arrears. We affirm in part and reverse in part.

We discern from the record the following history regarding defendant's child support obligation.

The parties married in 1989, had one child born a year later, and divorced in 1995. The judgment of divorce incorporated a property settlement agreement (PSA), which contained the parties' stipulation that defendant would pay plaintiff $4500 per month in child support, which would be reduced to $2500 per month upon the sale of the former marital home. The home was sold on or about July 30, 1997.

The record further demonstrates that defendant failed to pay the full amount of child support for many years. In late 2003, defendant's motion for a child support reduction resulted in a November 21, 2003 order, which reduced the child support obligation to $1250 per month, consisting of $750 in continuing child support and $500 toward the arrears. The judge did not set forth the amount of child support arrears then due; instead, the judge directed the parties to attempt to agree, but, if they could not agree by December 15, 2003, either party could apply to the court for such a determination. When the parties failed to agree, the motion judge determined, by order entered on February 6, 2004, that $264,000 was due in child support arrears. The judge's order also limited the amount of the judgment subject to execution to $112,000. In addition, the order allowed defendant an opportunity to challenge the amount of arrears by submitting, within thirty days, an affidavit setting forth those payments he believed he had made with supporting documentation.

Defendant did not submit an affidavit or any other materials as permitted by the February 6, 2004 order. Instead, defendant appealed the orders of November 21, 2003 and February 6, 2004. We held that the motion judge failed to make findings to support the current level of ongoing child support and, therefore, reversed and remanded for "reconsideration of the current child support obligation." Harrison v. Gordon, No. A-2193-03 (App. Div. Apr. 15, 2005) (slip op. at 7). We recognized the motion judge's reconsideration of the current child support obligation could trigger an adjustment of the child support arrears, but we rejected defendant's argument that the PSA was unconscionable and rejected the argument that defendant would be entitled to additional relief regarding the existing arrears. Ibid.

In furtherance of our mandate, the motion judge entered an order on September 28, 2005, which reallocated the $1250 obligation by directing that $500 would constitute the ongoing child support obligation and $750 would be dedicated to the outstanding arrears. Defendant continued to argue he had not been credited with $55,000 in unaccounted-for payments toward the arrears, and in a December 20, 2005 order, the judge again gave defendant an opportunity to support that claim, allowing defendant ninety days to supply proof. The judge, however, also ordered that "[i]n the event such proof" was not forthcoming, the judgment of $209,000 set forth in that order "shall be increased . . . automatically" by $55,000 to $264,000.

On August 7, 2008, the matter came before the trial court on plaintiff's application to accelerate the child support obligation by doubling defendant's monthly payment so as to enable plaintiff to meet their daughter's college education expenses. That is, rather than fruitlessly attempt to obtain additional contribution from defendant for that purpose, plaintiff merely sought to accelerate what was already due but left unpaid. The motion judge resourcefully suggested and the parties agreed that defendant's monthly obligation for the payment of arrears would be increased but that defendant would receive in exchange an additional credit against the total arrears. In other words, as the judge explained:

Did you ever fly Continental and they tell [you] if you buy a certain [fare] they [will] give you a companion ticket for free? . . . Here's what I'm going to suggest. . . . If you pay the [$]2500 a month, I'm going to give you a two for one on the $500 over the [$]2,000. So, that means that every year you get an extra $6,000 off of your arrears.

 

. . . .

 

That's 12 times 500 by the way. Are you with me still? . . . [Plaintiff] get[s] [$]2500, but it's as if [defendant is] paying [her] [$3000] for the purpose for the arrears . . . . So, at the end of the four years of [the child's education] [defendant] picks up an extra . . . $25,000 on arrears, more than he actually paid.

 

Consistent with the parties' agreement to this, the order entered that same day stated that defendant would pay to plaintiff, through the probation department, $2500 per month, with $500 toward the current child support obligation and $2000 toward the existing arrears; the order also stated that defendant would obtain an additional monthly $500 credit toward the arrears so long as there was no default and the payments were made on a timely basis.

The order did not memorialize the total amount of arrears then due and owing. Of relevance to the issues at hand, plaintiff had submitted a certification at that time that estimated, in relying on information from the probation department, the arrears were approximately $150,000; during the August 7, 2008 proceedings, the judge also observed that the arrears were "roughly $150,000," but we assume this was based on what plaintiff had assumed.

Things apparently proceeded smoothly for the following four years. The parties' child completed her college education in May 2012, and defendant promptly moved for an order declaring her emancipation. Plaintiff cross-moved for a declaration of the correct amount of arrears. With the prior judge's retirement, another judge ruled on these motions, concluding in his June 25, 2012 order that the child support arrears amounted to $81,810.17; specifically, the judge found that the probation department had not added back the $55,000 required by the September 28, 2005 order. The judge ordered that defendant pay plaintiff $1500 per month against these outstanding arrears, and he held that plaintiff was entitled to interest on the outstanding judgment for the arrears existing as of the date of the February 6, 2004 judgment.

Defendant appeals the June 25, 2012 order. As the result of motions in this court prompted by defendant's attempt to supplement the record on appeal with plaintiff's 2008 certification we remanded for the motion judge's determination of: whether this certification had previously been provided to him in connection with the trial court motions in question; if not, whether the certification should be considered through application of Rule 4:50; and, if considered, whether it warranted a modification of the June 25, 2012 order.

The motion judge promptly responded to our mandate. In his letter opinion, the judge determined that defendant's 2008 certification had not been previously submitted to him but that it made no difference because the certification was based on a probation accounting error he had resolved in entering his June 25, 2012 order.

Against this procedural backdrop, we consider the following arguments defendant has posed in this appeal:

I. THE COURT IMPROPERLY FAILED TO UPHOLD THE PARTIES' AGREEMENT FOR ARREARS AS ORDERED AUGUST 7, 2008 AND THE COURT ERRED BY ORDERING DEFENDANT TO PAY $55,000 ADDITIONAL ARREARS WHEN EXECUTION WAS SPECIFICALLY DENIED.

 

II. THE COURT ERRED IN ORDERING DEFENDANT TO PAY INTEREST THAT HAS ACCRUED AND CONTINUES TO ACCRUE ON THE OUTSTANDING JUDGMENT FOR CHILD SUPPORT ENTERED FEBRUARY 6, 2004 BECAUSE COLLECTION ON ANY OUTSTANDING JUDGMENT WAS DENIED AND ENFORCEMENT WAS DENIED THEN, AND PLAINTIFF DID NOT ASK FOR INTEREST WHEN SHE AGREED TO THE AMOUNT OF ARREARS DUE.

 

III. THE COURT ERRED BY PERMITTING PLAIN-TIFF'S COUNSEL TO APPEAR LATE AND OUT OF TIME AND TO ACCEPT UNCERTIFIED ARGUMENTS AND ASSERTIONS.

 

We find insufficient merit to warrant further discussion of Point I in a written opinion, R. 2:11-3(e)(1)(E), except for the following additional comments.

As revealed by the procedural history we have outlined, a long-standing dispute existed with regard to defendant's claim that $55,000 had at one time been paid to plaintiff for application against the child support arrears. The original judge twice provided defendant with opportunities to prove that claim, and he twice failed to do so. The probation department error regarding the outstanding arrears resulted from the nature of the September 28, 2005 order, which declared the arrears as then being $209,000 while recognizing this amount would "automatically" jump to $264,000 if defendant failed to provide proof of the alleged $55,000 payment. In entering the order now under review, the judge recognized that defendant should not receive the benefit of an error that occurred only because the prior judge had provided defendant with an opportunity of which he never took advantage. We agree.

In addition, we reject the argument that in 2008 the original judge's intention was to ignore whatever a proper accounting of the arrears would reveal, or that the judge simply meant to promote a means for defendant's repayment of his entire obligation by innovatively increasing defendant's payments and allowing defendant a commensurate credit during the child's undergraduate education. That argument is completely contrary to what the original judge observed when he crafted the August 7, 2008 order. As the judge then colorfully said, "[t]his isn't a shoot the place clean" situation, which both the subsequent trial judge and we interpret as meaning defendant would still be obligated to pay plaintiff whatever arrears remained due once the child was emancipated.

On the other hand, the unique manner in which the original judge successfully managed the repayment of the arrears as the best means of alleviating plaintiff's burden of paying for the child's entire college education1 does not suggest, and indeed runs counter, to the argument that either the original judge or the parties understood that interest would accrue on the judgment entered years earlier. However, with the mission of the child's education accomplished, there is no equitable reason why interest should not have begun to accrue on the arrears existing at the time of the child's emancipation. We, thus, reverse only the interest portion of the June 25, 2012 order, and we remand solely for entry of an order which ensures that interest has not and will not accrue except on the arrears due as of June 25, 2012.

We find insufficient merit in defendant's Point III as well as in plaintiff's argument in support of her cross-appeal that the judge erred in denying her request for defendant's maintenance of life insurance to ensure payment of the arrears to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part; reversed in part; and remanded in part. We do not retain jurisdiction.

1As the order under review amended by the motion judge on July 20, 2012 reveals, plaintiff fully funded the child's four-year undergraduate education at the University of Pennsylvania without contribution from defendant.