JOEL A. FRIEDMAN v. MICHELLE P. FRANK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOEL A. FRIEDMAN,

Plaintiff-Respondent,

v.

MICHELLE P. FRANK,

f/k/a MICHELLE P. FRIEDMAN,

Defendant-Appellant.

____________________________________________

November 16, 2016

Submitted July 19, 2016 Decided

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-000495-00.

Michelle P. Frank, appellant pro se.

Joel A. Friedman, respondent pro se.

PER CURIAM

Defendant Michelle Frank appeals a September 5, 2014 post-judgment matrimonial order and the October 28, 2014 order that denied reconsideration.

Plaintiff Joel A. Friedman (Friedman) and defendant Michelle P. Friedman, now Michelle Frank (Frank), were divorced in March 2002. They had two children, one of whom was in college when the appealed orders were entered. Under the Final Judgment of Divorce, Friedman was required to pay child support and limited duration alimony.

In 2014, Friedman sought post-judgment relief granting a $2651 credit to his Probation account for child support he paid directly to Frank in 2003 before the Probation account was established. He also requested an order to compel Frank to pay off their daughter's student loan from an account Frank allegedly controlled that was set aside for the daughter, and to pay Frank's portion of the then current tuition. Frank filed a cross-motion asking for an order that Probation include alimony paid by Friedman from February to November 2003 in its audit of Friedman's child support account. She also requested that Friedman be required to "match" contributions she made toward their daughter's education expenses.1

On September 5, 2014, the trial court granted Friedman's request for a $2651 child support credit for payments he made directly to Frank in 2003. Subject to Friedman's application for a bench warrant in the event of non-compliance, Frank was given twenty-one days to pay off their daughter's student loan from the 2013-2014 school year, and then to provide Friedman with an account statement that showed the balance in the account that had been set aside for their daughter. Frank also was to use the balance of the account for their daughter's 2014-2015 college tuition. Frank previously was ordered to make these payments, but had not.

The September 5, 2014 order provided that Frank was to pay nineteen percent of the daughter's 2014-2015 tuition. Friedman was ordered to "match" Frank's contributions to the daughter's education expenses. The order denied Frank's request to direct Probation to include in its child support audit Friedman's alimony payments made in 2003. Both Friedman and Frank were ordered to comply with the May 12, 2014 order.

Frank unsuccessfully sought reconsideration and a stay of the tuition payment provisions of September 5, 2014 order, and of the provision that declined to direct Probation to include Friedman's 2003 alimony payments in its audit. However, Friedman's cross-motion was granted, which eliminated his requirement to "match" Frank's contributions to their daughter's educational expenses, but added a requirement that both parties provide statements of all Uniform Transfer to Minor's Act (UTMA)2 accounts in their possession.

The parties have brought to our attention other orders entered since the appeal was filed. In response to an order to show cause filed by Frank, on February 20, 2015, the trial court vacated any sanctions against Frank for failing to "apply funds in [the daughter's] name" to pay off the student loan because Friedman "has indicated he is not holding [the daughter] responsible for her student loans." The court continued the sanction against Frank for failing to pay nineteen percent of the daughter's college expenses, setting the "purge amount" at $2240. Then, in an April 15, 2015 order, the court denied Frank's request to vacate portions of the May 12 and September 5, 2014 orders and denied Friedman's request to "restate" a portion of the May 12, 2014 order.

Frank's present appeal of the September 5 and October 28, 2014 orders contends that the trial court erred in ordering her to use funds in the daughter's account to pay off the student loan and in imposing sanctions for failing to do so. However, she acknowledged in her reply brief that the February 20, 2015 order rendered these portions of her appeal "moot."

"An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting N.Y. Susquehanna & W. Ry. Corp. v. N.J. Dep't of Treasury, Div. of Taxation, 6 N.J. Tax. 575, 582 (Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)). "[C]ourts of this state do not resolve issues that have become moot due to the passage of time or intervening events." State v. Davila, 443 N.J. Super. 577, 584 (App. Div. 2016) (alteration in original) (quoting City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999)). However, in limited instances, courts may address the merits of an issue that has become moot, electing to do so "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996) (citations omitted).

We agree that the issues about sanctions and the account for the daughter are moot and decline to issue any opinion on those issues. Our ruling would have no "practical effect on the existing controversy" because payment of the student loan is no longer pursued and the sanctions against Frank were vacated. We also do not discern that the issues here require our advisory opinion.

Frank also appeals the September 5 and October 28, 2014 orders to the extent they denied her request to direct Probation to include in its audit alimony payments made by Friedman in 2003. Friedman contended that from February to November 2003, he paid alimony and child support directly to Frank in one check that included both amounts. He submitted copies of five checks to show payments from January 31, 2003 to July 31, 2003. Starting in September 2003 when the account was set up, he paid child support to Probation. Friedman wanted to receive credit in Probation's audit for the child support component of these five checks. His motion was denied at first, but the relief he sought was granted on September 5, 2014 when he produced copies of five cancelled checks that the court accepted as proof he made combined payments of alimony and child support to Frank in 2003. The court's September 5, 2014 order directed Probation to credit Friedman's account with $2651, the total amount of child support in the five checks.

Frank contends the trial court erred by not also directing Probation to include alimony payments in its audit. Frank contends the error is that the court did not exclude from the Probation account the non-child support, i.e., alimony, portion of these checks that amounted to $5100. She contends this amount was erroneously credited to child support by Probation.

The trial court addressed the issue at the hearing on September 5, 2014, finding that Frank "received $2651 that year towards [Friedman's] child support obligation." Because of that, Friedman was granted a credit. The trial court denied Frank's request to include alimony from February 1, 2003 through November 30, 2003 because "[t]hat money was received directly by [Frank]." The court also denied Frank's motion for reconsideration that requested the exclusion from the Probation audit of spousal support payments paid to Probation by Friedman from September 2003 to November 2003, saying "[t]hat issue has been dealt with by a number of post-judgment motions and [Frank] has not provided any additional information that would warrant modification."

In fact, Frank submitted information in her motion for reconsideration that raised an issue about the Probation accounting. Frank submitted copies of what appear to be check stubs from August 2003 through December 2003 showing what purports to be Friedman's payments to Probation, not to Frank, that also are a combination of child support and alimony. She also included a copy of the Automated Child Support Enforcement System Fiscal Audit Report for the period of January 1, 2003 to December 31, 2003. That report shows the full amount of the checks she submitted to the court being credited against Friedman's child support, which then resulted in a credit in Friedman's favor, presumably because the checks included alimony and child support.

It was error for the trial court not to address the checks submitted by Frank or this page of the audit report. We are constrained to reverse and remand this portion of the September 5 and October 28, 2014 orders because there is nothing in the record to explain whether Probation credited Friedman's alimony payments to the child support account after September 2003, when he began to make the payments to Probation and not directly to Frank. However, we decline Frank's request that upon remand the matter be assigned to a different Family Division judge. We discern no basis to do so from our review of this record. See R. 1:12-3.

We reverse and remand only so much of the September 5 and October 28, 2014 orders that addressed Friedman's payment of child support from September to December 2003 and whether the trial court should have directed Probation to conduct a further audit of those months. The other portions of the appeal are moot, requiring no further opinion.

1 These issues were the subject of an earlier order dated May 12, 2014 that followed from a plenary hearing. Frank has not appealed the May 12, 2014 order. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994))).

2 The UTMA is set forth at N.J.S.A. 46:38A-1 to -57.