Opinion
DOCKET NO. A-5778-10T3
02-14-2013
GLADYS ALAYON, Plaintiff-Respondent, v. GREGORY A. DEMETER, Defendant-Appellant.
Gregory A. Demeter, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Nugent and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-729-11.
Gregory A. Demeter, appellant pro se.
Respondent has not filed a brief. PER CURIAM
Defendant Gregory A. Demeter appeals from the trial court's June 16, 2011 order, which vacated the court's March 17, 2011 order that had established child support in New Jersey and had established an amount due Demeter as recoupment for child support amounts overpaid in New York. The March 17, 2011 order effectively modified child support that had been established in New York, when both mother and child resided there. As there is no evidence that defendant registered the New York order here, the New Jersey court lacked subject matter jurisdiction to modify child support. We therefore affirm the court's June 16, 2011 order.
I.
The parties' daughter was born July 11, 2006. Alayon lived in New York and defendant, employed by the New Jersey State Police, lived in New Jersey. The child primarily lived with the mother. Claiming Alayon had denied him reasonable parenting time, Demeter filed a contested custody matter in New York Family Court in Queens County in October 2006. While the custody matter was pending, the New York courts on January 11, 2007 entered a temporary child support order requiring Demeter to pay Alayon $450 a week.
After lengthy pre-trial proceedings, and sixteen days of testimony, the New York court decided on January 21, 2010 to award Demeter primary residential custody of the child, unless Alayon relocated to New Jersey, in which event, the parties would share custody equally by rotating weeks. Faced with those alternatives, Alayon notified the court she would relocate to New Jersey. The New York court then amended its custody order on February 8, 2010, providing that the parents would alternate weeks of parenting time, and Alayon would relocate to New Jersey by September 2010. Although Alayon's appeal from the New York court's custody decision was pending when the trial court here entered its March and June 2011 orders, the New York custody decision was ultimately affirmed. In re Demeter v. Alayon, 934 N.Y.S.2d 846 (N.Y. App. Div. 2011), leave to appeal denied, 969 N.E.2d 221 (N.Y. 2012).
The New York courts, by a support magistrate, then determined on April 19, 2010 that Demeter's child support obligation, retroactive to October 6, 2006, was $325 a week, and not the temporary amount of $450 a week that he had been paying. The difference resulted in a substantial overpayment. To address the overpayment, the court ordered that the $325 weekly amount would be effective April 29, 2011 — over a year later. The order stated:
As Gregory Demeter has paid $76,500.00 on the temporary order of support (not including $900.00 that the Support Collection Unit is currently holding) and the Support Collection Unit will not issue a recoupment order, this order of support is being made effective April 29, 2011 to allow for the recoupment of the overpayment.The court's apparent intention was to suspend payments for those fifty-three weeks between April 19, 2010 and April 29, 2011.
We do not have the record of the April 2010 proceeding, although it was summarized in a subsequent New York decision. Fifty three weeks of withheld child support payments, at $325 a week, would result in a recoupment of $17,225. The court found that Demeter had paid $76,500 over 185 weeks pursuant to the temporary order. The court calculated that the amount due for that period based on the $325 weekly amount was $59,150, resulting in an overpayment of $17,350. (Although the product of $325 times 185 is $60,125, the difference appears largely accounted for by the $900 held by the New York collection unit.)
Although Demeter did not appeal the April 2010 New York order, his attorney insisted the court's order did not accurately embody the court's decision because it stated that the new amount was effective April 19, 2011. Counsel insisted the new amount was effective April 19, 2010 — although apparently it would be suspended until the overpayment was reduced to zero. An amended order was thereafter entered September 10, 2010 that explicitly stated, "effective April 19, 2010 through April 29, 2011, the order of support is suspended and there are no payments due[.]" The amended order also stated:
As Gregory Demeter has paid $76,500.00 on the temporary order of support (not including $900.00 that the Support Collection Unit is currently holding) and the Support Collection Unit will not issue a recoupment order, this order of support is suspended effective April 19, 2010 and through April 29, 2011, and thereafter, effective April 29, 2011, the order of support will begin in the amount of $325.00 weekly payable through the Support Collection Unit to allow for the recoupment of the overpayment.
In the meantime, in August 2010, Alayon relocated to New Jersey, in the same county where Demeter resided. The parties apparently abided by the alternating-week parenting time schedule.
On October 6, 2010, Alayon then filed an objection to the September 10, 2010 order in New York Family Court. Two days later, with child support apparently suspended in New York, Alayon also filed for child support in New Jersey.
The New York Family Court acted first. By decision and order entered November 9, 2010, it vacated the September 10, 2010 order, holding there was insufficient evidence on the record to justify it. However, the judge also rejected Alayon's objection to the April 19, 2010 order as untimely. The court reinstated the April 19, 2010 order.
The impact of the November 2010 order is difficult to discern. It is unclear whether the New York court intended that the $325 amount would become effective in April 2012 and Demeter's overpayment would be reduced at the rate of $450 a week. If so, Demeter would be overcompensated for the overpayment.
On November 24, 2010, Alayon's New Jersey application was to be "relisted." After both parties appeared, the hearing officer recommended an order that stated:
Plaintiff's [Alayon's] request for registration of the New York order for enforcement and modification is carried. Plaintiff supplied order from NY dated 4/19/10 which both parties testify is notBoth parties returned to court here on January 19, 2011, when Alayon withdrew her petition to register the New York order. The order entered by the court on February 1, 2011 stated, "Plaintiff withdraws her petition to register the NY order of support. Def. is overpaid on that order and she believes that support should not be payable until a future date. She will refile her request at taht [sic] time."
the actual order from 4/19/10. Plaintiff to supply actual order from the court of New York from 4/19/10. Order of 9/10/10 was vacated by court order dated 11/9/10 and reinstates order of 4/19/10. Matter to be relisted for court order.
On February 4, 2011, Demeter filed an application to "establish jurisdiction of this case [in New Jersey] and . . . to modify support" as both Alayon and the child had been living full-time in New Jersey since August 2010. Although he stated that "[t]here is currently a custody and support order active in New York State," there is no evidence that Demeter included a certified copy of the New York orders, a statement of the current account, nor an explicit request to register the New York support order.
The matter came before a hearing officer, and then before the court. Our review of the transcript reflects the parties had difficulty clearly conveying to the court the complex history of the case and their respective positions. Demeter stated his desire to establish child support in New Jersey, as both parents and the child now resided here. He testified that despite the child support orders that were intended to enable him to recover his overpayments by suspending child support payments beginning April 2010, New York officials continued to garnish his pay at the previous level. "They continued taking, actually, during the next six months or so, the full 1,800 out of my check still." He further explained, "[W]hat it says also is that it should be suspended from April of 2010 through April 29, 2011. I was getting my paycheck garnished up until October of 2010." He stated that as a result of the suspension of child support payments since then, he recouped "anywhere from 7,800 to I guess almost $9,000." He asserted he was still owed $13,000 or $14,000.
Demeter apparently presumed that his $450 a week translated to $1800 a month, as opposed to $1935 (4.3 x $450 = $1935).
Alayon testified that support payments from New York were actually suspended in September 2010. She wanted the New York order to be remain in place, with suspended child support payments, until Demeter recouped the entire amount due. Apparently, the child support amount calculated by the hearing officer totaled $600 a month. She apparently believed that Demeter's overpayment was being recouped at the rate of $450 a week. She stated, "[W]hat I'm trying to tell you is because he wants his recoupment, then that would be calculated into the 600 dollars. . . . [I]t just would be unfair to put a recoupment order in $600, when it should be — when the recoupment order was from $1,800 dollars." She asserted child support would be suspended for five years if the overpayment were recovered based on the New Jersey child support rate.
Both parties appeared agreeable to commencing child support at the New Jersey level in September 2011, allowing a one-year suspension beginning in September 2010, which would erase Demeter's overpayment. However, Demeter noted that New York would resume garnishing his paycheck in April 2011 unless New Jersey exercised jurisdiction.
The court then referred the parties to mediation. Thereafter, they waived their right to an appeal from an order that set weekly child support at $186, and provided that Demeter pay $210 a week in child care. The order noted that the custody decision was still on appeal in New York. The order further stated: "Child support established. Parties agree that Mr. Demeter recoupment of overpayment of child support is $10,000. His recoupment will begin September 2012. He will refile to have the amount established at that time." By its terms, the order thus did not register and then modify the New York order. Rather, it established a second conflicting support order.
Twelve days later, Alayon filed an application asking the court to vacate the March 17, 2011 order, asserting that she did not agree to it voluntarily. She alleged:
I felt pressured by the mediator to agree to these terms. When I asked to go back to the judge and let him decide, I was told/advised by the mediator that the judge was going to agree to the same thing. I couldn't understand why. I left there feeling I was treated unfair and felt taken advantage of. When I came to court I had no debts and left with a $10,000 debt[,] a debt that was improperly calculated.She also accused Demeter of lying to the court, and asserted, "There is no change in circumstance for me or Mr. Demeter. I want the NY order to run its course." She also challenged the calculations, stating, "The calculations were improperly done. Especially when NY Laws and NJ Laws are different. The money owed had to do when my daughter and I Lived in New York[.]"
On June 16, 2011, the matter returned to the same trial judge who entered the March 17, 2011 order. Alayon testified that she felt pressured by the mediator and expressed her displeasure with the agreement. "Why would I come up with a 10,000 dollar debt? . . . If the New York order would have continued . . . I would have been clean slate. I would not have to have owed anything because he wouldn't have been paying child support according to the New York court laws." She stated that once Demeter's overpayment was erased pursuant to the New York order, child support should be calculated and collected pursuant to New Jersey law.
Demeter expressed his support for the March 2011 order. However, he stated that New York had notified him it was about to resume garnishing his wages, notwithstanding New Jersey's exercise of jurisdiction. Demeter had been paying to probation by check pursuant to the March 2011 order, as Probation in New Jersey had not yet begun garnishing his wages. He also noted that he was paying for the child's day care. Demeter expressed his intention to seek the refund of the support collected in New York.
Demeter also said, somewhat inconsistently, that New York had already begun garnishing his wages again.
The court concluded that the March 2011 order should be vacated. The court stated, "I'm going to rule that the [March 2011] child support order will be vacated in New Jersey. . . . We will not have child support determined in New Jersey until it gets resolved in New York." The court made clear that its decision was retroactive to March 17, 2011. The court also noted that it would exercise jurisdiction over any parenting time issues.
The court entered a conforming order June 16, 2011 stating:
The 3/17/11 [order] of this court is rescinded. There shall be no child support paid under a New Jersey order. Mr. Demeter is ordered to be refunded all monies the Probation Department has collected under the 3/17/11 order. Ms. Alayon confirms that she has not utilized any of the monies received from Union County Probation. The materials she did receive have now been destroyed in a fire. Proper calculations of child support and credits due to Mr. Demeter should be resolved in the New York courts.
Demeter appeals from the court's June 16, 2011 order and presents the following points for our review:
POINT I
THE LOWER COURT ERRED IN DETERMINI[N]G THAT NEW YORK RETAINED JUR[I]SDICTION OVER THE SUPPORT CASE SINCE BOTH PARENTS AND CHILD RESIDE FULL TIME IN NEW JERSEY SINCE AUGUST 2010.
POINT II
THE LOWER COURT ERRED BY FAILING TO CONTACT THE NEW YORK COURTS TO NOTIFY THAT NEW JERSEY EX[]ERCISED PERSONAL JURISDICTION OVER THE SUPPORT CASE.
POINT III
APPELLANT IS ENTITLED TO RECEIVE A RETROACTIVE CREDIT FOR CHILD SUPPORT PAYMENTS MADE THROUGH NEW YORK FROM MARCH 17, 2011 TO THE PRESENT, AS WELL AS CREDIT FOR MONIES PAID TOWARDS TUITION, CHILD CARE AND SCHOOL.
II.
We first note our standard of review. We are required to accord deference to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it[.]" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Also, if the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). We may also affirm the challenged order "on grounds different from those relied upon by the trial court." State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011).
The applicable principles governing the exercise of jurisdiction in this case are found in the Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C.A. § 1738B and the Uniform Interstate Family Support Act (UIFSA) as adopted in New Jersey, N.J.S.A. 2A:4-30.65 to -30.123 (Act). Under both FFCCSOA and UIFSA, New Jersey's power to modify the New York child support order was contingent on Demeter first registering the New York order here. That he never did. As described below, although New Jersey certainly had the potential power to modify the order — inasmuch as the child and parents resided here — the court lacked subject matter jurisdiction when it issued the March 2011 order. Consequently, the June order correctly vacated the March order.
Under FFCCSOA, New Jersey had the power to modify the New York order if New York ceased having continuing exclusive jurisdiction as a result of the child or parent's relocation, and New Jersey acquired jurisdiction pursuant to registration of the New York order. FFCCSOA states:
A court of a State [in this case, New Jersey] may modify a child support order issued by a court of another State [in this case, New York] if--Subsection (i), in turn, requires registration.
(1) the court has jurisdiction to make such a child support order pursuant to subsection (i); and
(2) (A) the court of the other State [New York] no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any individual contestant[.]
[28 U.S.C.A. § 1738B(e) (emphasis added).]
(i) Registration for modification. If there is no individual contestant or child
residing in the issuing State, the party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another State shall register that order in a State with jurisdiction over the nonmovant for the purpose of modification.
[28 U.S.C.A. § 1738B(i) (emphasis added).]
The Act also requires registration of the out-of-state order before New Jersey may proceed to modify it. The power to modify is contingent on the commencement of a "proceeding to register" the out-of-state order.
Jurisdiction to modify or enforce another state's orderSection 48 of the Act, N.J.S.A. 2A:4-30.112, also expressly states that modification requires registration: "A party . . . seeking to modify . . . a child support order issued in another state shall register that order in this State in the same manner provided in sections 40 through 43 of this act if the order has not been registered." The modification petition may be filed with the registration requested. Ibid. Once our court issues a modified order, the party obtaining the order "shall file a certified copy . . . with the issuing tribunal which had continuing, exclusive jurisdiction over the earlier order[.]" N.J.S.A. 2A:4-30.117.
a. If all of the individual parties reside in this State and the child does not reside in the issuing state, a tribunal of this State has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order.
b. A tribunal of this State exercising jurisdiction as provided in this section shall apply the provisions of sections 1 through 12 of this act and this section to the enforcement or modification proceeding. Sections 13 through 39 and sections 54 through 56 of this act do not apply and the tribunal shall apply the procedural and substantive law of this State.
[N.J.S.A. 2A:4-30.116 (emphasis added).]
Section 41 of the Act prescribes the method for registering an order, including filing a sworn or certified statement of arrearages:
Information and documents required for registration
a. A support order or income-withholding order of another state may be registered in this State by sending the following documents and information to the appropriate tribunal in this State:
(1) a letter of transmittal to the tribunal requesting registration and enforcement;
(2) two copies, including one certified copy, of all orders to be registered, including any modification of an order;
(3) a sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearage;
(4) the name of the obligor and, if known:
(a) the obligor's address and social security number;
(b) the name and address of the obligor's employer and any other source of income of the obligor; and
(c) a description and the location of property of the obligor in this State not exempt from execution; and
(5) the name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.
b. On receipt of a request for registration, the registering tribunal shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of their form.
c. A complaint, petition or comparable pleading seeking a remedy that must be affirmatively sought under other laws of this State may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.
[N.J.S.A. 2A:4-30.105.]
A principal goal of UIFSA is to assure that only one child support order is in place, and to avoid multiple contradictory orders. Philipp v. Stahl, 344 N.J. Super. 262, 277 (App. Div. 2001) (Wecker, J., concurring in part, dissenting in part) (stating that purpose of UIFSA includes "to establish ground rules for modifying" an order when one or both parties have moved from the issuing state, "and to do so in a way that avoids conflicting orders issued by courts of different states"), rev'd on dissent, 172 N.J. 293 (2002). Unless a party complies with the registration and modification requirements, the original order remains in place, notwithstanding that neither parent nor the child continues to reside in the issuing state. See UIFSA § 205 comment ("Even if all parties and the child no longer reside in the State, the support order continues in existence and is fully enforceable unless and until a modification takes place in accordance with the requirements of Article 6.").
N.J.S.A. 2A:4-30.72 corresponds to § 205 of UIFSA, although New Jersey has not adopted the 2001 clarifying amendments.
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We are unaware of a published case in which our courts have required registration as a prerequisite to our exercise of subject matter jurisdiction to modify another state's order. However, substantial authority of other states supports our view. See, e.g., Williams v. Williams, 91 So. 3d 56, 62 (Ala. Civ. App. 2012) ("Because the father [who moved to Alabama with children] did not register the [Missouri] divorce judgment, the [Alabama] trial court lacked subject-matter jurisdiction to enter its 2006 modification judgment."); Glover v. Glover, 289 P.3d 12, 18 (Ariz. Ct. App. 2012) (where father, mother and son all moved to Arizona after Massachusetts divorce, court stated, "[W]e hold that registration in Arizona of a child support order issued in another state is necessary to confer subject matter jurisdiction on the superior court to modify the order."); Lamb v. Lamb, 707 N.W.2d 423, 436 (Neb. Ct. App. 2005) (stating court in Nebraska, where mother and child but not father lived, lacked subject matter jurisdiction in part because Wyoming order was not registered in Nebraska); Auclair v. Bolderson, 775 N.Y.S.2d 121, 123 (N.Y. App. Div.) (stating "the courts of a nonissuing state may modify the judgment if it has been registered in that state and certain other criteria have been met" and "failure to prove registration prevents New York courts from obtaining subject matter jurisdiction under both UIFSA and FFCCSOA" where order issued in Florida, obligee-mother and children lived in New York, and obligor lived in Missouri), appeal denied, 820 N.E.2d 293 (N.Y. 2004); Cepukenas v. Cepukenas, 584 N.W.2d 227, 229 (Wis. Ct. App. 1998) (where mother and child moved to Wisconsin and father moved to Delaware after Virginia divorce, mother's failure to register Virginia order in Wisconsin, among other reasons, deprived Wisconsin court of "competency" to modify it).
We need not address whether substantial compliance with registration would suffice as there is no evidence of such substantial compliance. For example, we are not presented with a case of the filing of a conforming registration request to the wrong office. See, e.g., In re Marriage of Owen and Phillips, 108 P.3d 824, 829 (Wash. Ct. App.) (stating that substantial compliance with registration requirements, submission of required papers to wrong office, furthers policy of UIFSA), review denied, 126 P.3d 1279 (Wash. 2005); see also Nelson v. Halley, 827 So.2d 42, 45-46 (Miss. Ct. App. 2002) (stating that mother seeking support modification substantially complied when father seeking custody modification filed foreign judgment); Kendall v. Kendall, 340 S.W.3d 483, 502 (Tex. Ct. App. 2011) (finding failure to comply with registration requirements did not deprive Texas court of subject matter jurisdiction where parties previously obtained orders from Texas court modifying New York divorce judgment, which expressly stipulated that subsequent proceedings would take place in Texas). Based on the record before us, Demeter's February 2011 request for the Family Part to exercise jurisdiction lacked a copy of the order. Although the February 1, 2011 New Jersey order reflected that Alayon had withdrawn her request to register the New York order, the record does not demonstrate the New York order was filed with the New Jersey Family Part.
In sum, as the New York support order was not duly registered in the Family Part, the court lacked subject matter jurisdiction under both FFCCSOA and the Act to enter the March 2011 order. The court's subsequent order vacating the March 2011 order was warranted.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION