Opinion
DOCKET NO. A-5834-13T4
06-02-2016
JACQUELINE KELLY, Plaintiff-Appellant, v. VINCENT KELLY, Defendant-Respondent.
Patricia A. Darden, attorney for appellant. McCrink, Kehler & McCrink, attorneys for respondent (Krisden M. McCrink, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1112-12. Patricia A. Darden, attorney for appellant. McCrink, Kehler & McCrink, attorneys for respondent (Krisden M. McCrink, on the brief). PER CURIAM
Plaintiff Jacqueline Kelly appeals from that part of the July 3, 2014 Family Part order, which set a retroactive date for the payment of child support by defendant Vincent Kelly, removed childcare expenses from defendant's child support obligation, and awarded her only $500 in counsel fees. For the following reasons, we affirm in part, and reverse in part.
Plaintiff and defendant were married in September 1993, and divorced in September 2012. They have a daughter. The amended final judgment of divorce entered on September 26, 2012 incorporated the parties' Property Settlement Agreement (PSA). The parties were still living together at the time they executed the PSA. The PSA provided that the parties would have joint legal custody of their daughter, and once they were living separate and apart, plaintiff would be designated the parent of primary residence and defendant would be designated the parent of alternate residence with parenting time set by the PSA. Regarding defendant's child support obligation, the PSA provided as follows:
Once the parties live separate and apart, Husband shall pay child support to Wife in accordance with the child support guidelines. Support shall be paid via wage execution through probation. At the time of physical separation, the parent of primary residence shall complete a statement of residence and form IV-D and pay the appropriate fees for same to commence support and wage execution. The parties agree to attend mediation or a hearing to determine the amount of child support if they are unable to calculate same themselves. Child support shall be determined by the parties' incomes at the time of physical separation, unless one party is unemployed, at which time the Court shall impute an appropriate number in the Court's discretion if the parties are unable to reach a number.Using the Child Support Guidelines, the parties agreed that defendant's child support obligation was $175 per week.
[(Emphasis added).]
On December 29, 2012, plaintiff and her daughter moved from the marital home. On August 26, 2013, plaintiff filed a motion to enforce the child support provision in the PSA, effective December 29, 2012, and sought $175 per week. Defendant did not dispute the amount of child support, but sought a deduction for childcare expenses and permission to make direct payment to the child's daycare provider. Defendant also argued because defendant failed to file the IV-D form required by the PSA, N.J.S.A. 2A:17-56.23a barred retroactive application of his child support obligation to December 29, 2012.
Relying on N.J.S.A. 2A:17-56.23a, the trial judge set child support at $175 per week, retroactive to August 26, 2013, the date plaintiff filed her motion. The judge also awarded plaintiff $500 in counsel fees. The judge memorialized his decision in a December 2, 2013 order.
Both parties filed motions for reconsideration. Plaintiff reiterated that pursuant to the PSA, child support should be retroactive to December 29, 2012. She also argued that childcare should not be deducted from the child support amount. Defendant countered that August 26, 2013 was the retroactive date, and he should make direct payment to the childcare provider.
The judge again set the child support amount at $175 per week, with $141 payable directly to plaintiff and $34 payable directly to the childcare provider. The judge did not change the retroactive date for child support or the amount of counsel fees awarded to plaintiff. The judge memorialized his decision in a July 3, 2014 order. This appeal followed.
On appeal, plaintiff contends the judge erred in disregarding the PSA in setting August 26, 2013 as the retroactive date for child support and removing childcare expenses from defendant's child support obligation. Plaintiff also contends the judge erred in awarding her only $500 in counsel fees.
We decline to address plaintiff's premature contention that she is entitled to counsel fees for this appeal. --------
Defendant counters that the judge correctly set August 26, 2013 as the retroactive date because: (1) plaintiff failed to complete a statement of residence and form IV-D and pay the appropriate fees to commence support and wage execution, as required by the PSA; (2) the doctrine of laches applies; and (3) N.J.S.A. 2A:17-56.23a bars plaintiff's request for child support retroactive to the date she and the child vacated the marital home.
N.J.S.A. 2A:17-56.23a does not apply here. That statute applies to a retroactive modification of a child support order, "meaning existing orders that were already established and entered by the court, either by adjudication or consent, and filed in the court at some earlier date." Kakstys v. Stevens, 442 N.J. Super. 501, 506 (Ch. Div. 2015); see also Mallamo v. Mallamo, 280 N.J. Super. 8, 13-17 (App. Div. 1995) (discussing the statute only in terms of modifications of child support orders); Mahoney v. Pennell, 2 85 N.J. Super. 638, 639 (App. Div. 1995) (stating N.J.S.A. 2A:17-56.23a "bars retroactive modification of child support arrearages"). The statute does not apply to the effective retroactive date of an initial support order.
Here, plaintiff was not seeking to modify child support; she was seeking an initial order setting child support where the parties had agreed to the support amount. Accordingly, the judge erred in applying N.J.S.A. 2A:17-56.23a to set the retroactive date of defendant's child support obligation.
Nor does plaintiff's failure to complete a statement of residence and form IV-D and pay the appropriate fees apply to deprive the parties' child of her right to child support. "An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of 'fraud or other compelling circumstances,' should honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)), certif. denied, 94 N.J. 600 (1983). "Settlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (alteration in original) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980).
Separation agreements "are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy." Dolce, supra, 383 N.J. Super. at 20 (quoting Konzelman v. Konzelman, 158 N.J. 185, 194 (1999)); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004). "And while incorporation of a PSA into a divorce decree does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (citations omitted).
Although property settlement agreements are favored, such agreements cannot circumvent a parent's child support obligation. "The purpose of child support is to benefit children, not to protect or support either parent. Our courts have repeatedly recognized that the right to child support belongs to the child, not the custodial parent." J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007). "[T]he right to child support belongs to the child and may not be waived by a custodial parent." Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008) (quoting L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002)). As such, "the parental duty to support a child may not be waived or terminated by a property settlement agreement." Patetta v. Patetta, 358 N.J. Super. 90, 95 (App. Div. 2003).
Here, because the child's right to child support belongs to her and cannot be waived by her parents, and because defendant's obligation to support his child cannot be evaded by a property settlement agreement, the PSA provision requiring plaintiff to perform a ministerial function in order to commence child support is void as against public policy. Konzelman, supra, 158 N.J. at 194. For these reasons as well, the doctrine of laches cannot apply to deprive the parties' child of child support. Accordingly, pursuant to the clear terms of the PSA, child support commenced as of the date plaintiff and the child vacated the marital home, December 29, 2012. We, thus, reverse as to this issue.
We reach a different conclusion as to plaintiff's argument about childcare expenses. "The trial court has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. (2001)). "'Of course, the exercise of this discretion is not limitless[,]' and remains guided by the law and principles of equity." Ibid. (alteration in original) (quoting Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part and modified in part, 183 N.J. 290 (2005)). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Rule 5:6A states, in part, that "[t]he guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown." The guidelines only establish the amount of child support a parent is obligated to pay, not the manner in which they must pay. Specifically, Appendix IX only lists the expenses that should be included in child support and those that may be added to the basic child support obligation, such as childcare. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at www.gannlaw.com (2016). The guidelines do not, however, establish the method of such payment. Thus, because the trial court has "substantial discretion" in awarding child support, it has the authority to set the overall obligation at $175 and order $34 of that amount to be paid directly to the childcare provider. Jacoby, supra, 427 N.J. Super. at 116.
Appendix IX-A.9 only states that if there are childcare expenses they should be added to the "basic support obligation." The judge here did add the childcare expense, $34, to the basic child support obligation. Thus, the judge complied with the guidelines and the PSA. Plaintiff does not contest that childcare is not included in the overall $175 amount agreed to by the parties and enforced by the judge. She only argues that the childcare portion, $34, should be paid directly to her instead of the provider. That is not mandated by the guidelines nor the PSA agreement. The PSA agreement is silent as to the manner of payment; it only mandates that the child support be "in accordance with the child support guidelines." Thus, the judge properly utilized his discretion in allowing defendant to pay the childcare expense directly to the provider.
Finally, we discern no error in the award of counsel fees to plaintiff or the amount awarded. An award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). We will not disturb a counsel fee award absent a showing of "an abuse of discretion involving a clear error in judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011).
When reviewing an application for counsel fees, a court must "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. In a family action, Rule 4:42-9(a)(1) authorizes the award of counsel fees and refers to Rule 5:3-5(c), which provides that a court should consider the following factors:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
Plaintiff filed a motion to enforce litigant's rights pursuant to Rule 1:10-3, which provides, in pertinent part, as follows:
Notwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action. A judge shall not be disqualified because he or she signed the order sought to be enforced. If an order entered on such an application provides for commitment, it shall specify the terms of release provided, however, that no order for commitment shall be entered to enforce a judgment or order exclusively for the payment of money, except for orders and judgments based on a claim for equitable relief including orders and judgments of the Family Part and except if a judgment creditor demonstrates to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution. The court in its discretion may make an allowance for counsel
fees to be paid by any party to the action to a party accorded relief under this rule.Thus, a party filing a motion under Rule 1:10-3 could essentially be entitled to counsel fees. "Although the so-called American rule, still followed in New Jersey, continues to require each party to bear his own attorney's fees except as otherwise provided by [Rule] 4:42-9[.]" Pressler & Verniero, Current N.J. Court Rules, comment 4.4.5 on R. 1:10-3 at 203 (2016). Rule 4:42-9(a)(1) provides that counsel fees are allowed both pendente lite and on final determination pursuant to Rule 5:3-5(c) articulated above.
[(Emphasis added).]
In light of the discretion afforded to trial judges in matrimonial matters, we discern no reason to disturb the counsel fee award. Although the parties' financial circumstances are the same, defendant purposely did not pay any child support for nine months despite his absolute duty to support his child, resting on an impermissible basis to escape his child support obligation. But for the filing of plaintiff's motion, defendant would have continued to avoid his obligation to his child. However, because the parties are not financially well off and earn approximately the same income, the small amount awarded is appropriate.
Affirmed in part, reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION