JULIO WEXLER v. RHINA WEXLER

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JULIO WEXLER,

Plaintiff-Appellant,

v.

RHINA WEXLER,

Defendant-Respondent.

_________________________________

January 16, 2015

 

Before Judges Haas and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-689-07.

Julio Wexler, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff appeals from the September 30, 2013 order of the Family Part denying his motion to reduce his child support obligation. Because we conclude the court mistakenly stated that plaintiff's weekly child support obligation was $278, rather than the $266 established by prior orders, we remand to the trial court to enter an order correcting the amount of plaintiff's child support obligation.

The parties were married in November 1993, separated in June 2006, and divorced in May 2008. They have two teenage children. At the time of the divorce, each party had primary residential custody of one of their children and the Dual Judgment of Divorce required plaintiff to pay defendant $52 per week in child support.

In April 2011, defendant filed a motion seeking residential custody of the child then living with plaintiff, and for an increase in child support. Following a plenary hearing, the trial judge entered an order on April 2, 2013 that, among other things, increased plaintiff's child support obligation to $266 per week retroactive to April 27, 2011. Plaintiff filed an appeal from the April 2, 2013 order, and we affirmed the trial judge's decision in an unpublished opinion. Wexler v. Wexler, No. A-4002-12 (App. Div. February 13, 2014).

On April 5, 2013, three days after the April 2, 2013 modified child support order was entered, the Probation Division, Child Support Enforcement Unit (Probation) sent the parties a notice that plaintiff's weekly child support obligation would be increased on May 1, 2013 to $278 because of "a biennial cost-of-living adjustment (COLA)."1 On May 13, 2013, the trial judge issued an order "applying" the COLA, and increasing plaintiff's child support obligation from $266 to $278 per week.

On June 6, 2013, defendant filed a motion to enforce the April 2, 2013 order and require plaintiff to make his payments on time and in the full amount each week.2

On June 10, 2013, Probation asked the court to "void" the COLA. A different judge granted this request in an order issued on June 12, 2013. In that order, the second judge explained that, because plaintiff's child support obligation had already been recently modified on April 2, 2013, there was no basis for a COLA until April 2015. Thus, the court stated that "[t]he ongoing order[] of [child] support shall continue at $266.00 weekly . . . ."

Apparently unaware that the COLA had already been voided, plaintiff filed a response to defendant's enforcement motion, and also asked that the COLA be cancelled. On July 31, 2013, the initial trial judge granted defendant's enforcement motion, and directed plaintiff to make a $1500 lump sum payment toward his arrears within thirty days. If plaintiff failed to make this payment, the judge ordered that he be sanctioned $5 per day until the obligation was paid.

The judge declined to consider plaintiff's request to eliminate the COLA, finding that "he did not file a cross[-]motion" and, instead, had "simply sent a letter in response to [d]efendant's motion." Thus, it appears that the trial judge was also not aware of the June 12, 2013 order from the second judge voiding the COLA. Because of this, the July 31, 2013 order mistakenly states that plaintiff's child support obligation was $278 per week, rather than the $266 per week obligation that existed at that time.

Plaintiff then filed a motion requesting that the COLA be voided. In his motion, he referred to the second judge's June 12, 2013 order and asserted that his child support obligation should be $266, rather than $278, per week. Plaintiff also asked for a $264 credit for the amounts he alleged were charged to his child support arrears because of the COLA, and that he no longer be required to pay $30 per week toward his arrears. Defendant did not file a response to the motion.

On September 30, 2013, the trial judge denied plaintiff's motion to eliminate the COLA. The order acknowledged the second judge's June 12, 2013 order voiding the COLA retroactive to May 1, 2013. However, the judge then stated that, after the entry of the June 12, 2013 order, "the Court entered a new child support obligation on July 31, 2013 for $278 based upon a change of circumstances." Unfortunately, this statement was a mistake. As discussed above, defendant never filed a motion for an increase in child support due to changed circumstances, and the July 31, 2013 order did not state that child support was being increased due to "changed circumstances."

The trial judge therefore denied plaintiff's motion to cancel the COLA and for a credit of any amounts mistakenly charged to his arrears. The judge also denied plaintiff's request to eliminate his weekly arrears payment obligation. This appeal followed.

On appeal, plaintiff argues that the trial judge erred in finding that his child support obligation had been increased on July 31, 2013 due to "a change of circumstances." We agree.

The scope of our review of the Family Part's orders is limited. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

In this case, we believe that the trial judge mistakenly stated in the July 31, 2013 order that plaintiff's child support obligation was $278, rather than $266, per week. The trial judge set the obligation at $266 per week on April 2, 2013, and this order was made retroactive to April 27, 2013. Thereafter, Probation determined there was no basis to grant a scheduled COLA in May 2013 because support had just been adjusted. Therefore, after the May 2013 COLA was implemented, Probation asked the court to void it. A different judge granted this request and voided the COLA on June 12, 2013.

Unfortunately, however, it does not appear that entry of the second judge's June 12, 2013 order was known to either plaintiff or the trial judge at the time plaintiff's request to eliminate the COLA was considered by the trial judge on July 31, 2013. Indeed, the judge specifically refers to "the recent [COLA that had been] applied to [plaintiff's] child support account" in the July 31, 2013 order. That COLA, rather than any alleged "change of circumstances," was the sole reason why plaintiff's child support obligation had been increased to $278 per week. Thus, we agree with plaintiff that the trial judge's subsequent reference, in the September 30, 2013 order, to a "change in circumstances" as the cause for the increase was a mistake.

Because plaintiff's weekly child support obligation was $266, rather than $278, we are constrained to remand this matter to the trial court for the entry of an order correcting the amount of plaintiff's child support obligation retroactive to May 1, 2013. The trial court shall also calculate whether any credits are due to plaintiff's child support arrears account as a result of this correction.

Plaintiff argues that, in the event of a remand, the matter should be assigned to a different judge. We find this argument wholly unsupported by the record and without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Remanded to the trial court to correct plaintiff's child support obligation. We do not retain jurisdiction.

1 Rule 5:6B(a) provides that "[a]ll orders and judgments that include child support . . . shall provide that the child support amount will be adjusted every two years to reflect the cost of living."

2 Because defendant's motion sought to enforce an existing order, the trial court retained jurisdiction to consider the motion even though plaintiff's appeal from the order was pending at that time. R. 2:9-1(a) ("The trial court . . . shall have continuing jurisdiction to enforce judgments and orders" during a pending appeal).


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