DIANE MISTRETTA v. MICHAEL MISTRETTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DIANE MISTRETTA,

Plaintiff-Appellant,

v.

MICHAEL MISTRETTA,

Defendant-Respondent.

___________________________________

December 24, 2015

Submitted December 2, 2015 Decided

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1554-07.

Diane Mistretta, appellant pro se.

Michael Mistretta, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, Diane Mistretta (plaintiff) appeals from an order denying her challenge to a Probation Division audit and a denial of her motion for reconsideration. We affirm.

The parties were divorced on January 29, 2008. At the time of the divorce, the parties entered into a Property Settlement Agreement which provided for payment of child support by Michael Mistretta (defendant) for the parties' three children. The support was to be paid by defendant through Probation.

Over the course of several years following the divorce, both parties engaged in extensive post judgment motion practice on a myriad of issues. Among the issues repeatedly raised and contested by plaintiff and defendant was the calculation of defendant's child support obligation.

With the advice and guidance of their respective counsel, the parties entered into a consent order dated November 15, 2013. In pertinent part, the consent order provided that an audit of the child support account would be conducted by the Middlesex County Probation Division. In accord with the order, the parties were required to, and did provide, "proof of payments made and received." The parties were also permitted to meet with Probation together or separately in order to present their proof. The consent order expressly provided that the determination by Probation after the audit "shall be final."

At the conclusion of the audit, it was determined that there was a surplus in the account totaling $6,384. Based upon the surplus, defendant filed a motion seeking a suspension of enforcement of his child support obligation. Plaintiff opposed the motion.

On July 25, 2014, the Family Part judge, without oral argument, entered an order granting in part the relief sought by defendant. The order states

Defendant's request that the [c]ourt direct Probation to suspend enforcement of his child support obligation to [p]laintiff in light of the credit in his account is GRANTED IN PART. The parties entered into a [c]onsent [o]rder dated November 15, 2013. Par. 4 of the parties' [c]onsent [o]rder states that, upon an audit by Probation, "any amounts owed to the other party shall be paid via bi-weekly installments or reduction/increase (as appropriate) of child support." It appears that Probation has determined that [d]efendant has a credit of $6,384 for overpaid child support. Unfortunately, Probation was unable to implement part of the [c]onsent [o]rder because the parties did not set up a reduction plan or explicitly state that the entire child support amount will be suspended until [d]efendant's credits are extinguished. As the parties agreed to decrease child support until the credits are used up, the [c]ourt shall do so, however, the [c]ourt is not inclined to allow [d]efendant not to make any payments until the credit is extinguished. Rather, Probation shall suspend enforcement of $75 per week of [d]efendant's child support obligation to [p]laintiff until his credit of $6,384 is used up. Consequently, [d]efendant shall pay $77 per week for 85 weeks and make a payment of $143 for week 86. The reduced payments shall be effective July 18, 2014. Upon the above credits being used up, [d]efendant's child support obligation shall resume being $152 per week as agreed upon by the parties. Probation shall adjust its records accordingly.

The order also notes plaintiff's objections and the court's reasons for rejecting them

Although the [p]laintiff states that there was an error in the Probation audit of the account, the [c]ourt will not give her a credit for those amounts for two reasons. Firstly, [p]laintiff failed to file a [n]otice of [m]otion to be able to seek affirmative relief. Secondly, the parties expressly agreed by their [c]onsent [o]rder, Par. 4, that "[t]he outcome of the accounting after the presentation of the parties['] proofs and determination by [P]robation shall be final . . . [.]" By agreement of the parties, the [c]ourt cannot address the validity of the [d]efendant's child support credit as both agreed that the accounting performed shall be final.

Thereafter, plaintiff filed a motion for reconsideration, which the same Family Part judge denied. The order states

In its July 25, 2014 [o]rder, the [c]ourt properly determined that [p]laintiff could not challenge Probation's audit as the parties expressly agreed by their [c]onsent [o]rder, that "[t]he outcome of the accounting after the presentation of the parties['] proofs and determination by [P]robation shall be final . . . ." . . . Both parties had a fair opportunity to meet with Probation separately and present their proofs and are thus bound by Probation's accounting.

Plaintiff appealed.

After reviewing the record, we find that plaintiff's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following.

The judge's decision is entitled to the deference we normally accord to the expertise of the Family Part. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). While we do not owe special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),

we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion.

[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).]

We will only reverse the judge's decision when it is necessary to "ensure that there is not a denial of justice" when the family court's "conclusions are [] 'clearly mistaken' or 'wide of the mark.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

The judge's decision here to grant the relief to defendant was in accord with the consent order negotiated and entered into by the parties with the advice of their respective counsel. The decision was neither mistaken nor wide of the mark. See E.P., supra, 196 N.J. at 104.

Affirmed.