Opinion
DOCKET NO. A-3945-11T2
02-25-2013
FRANCINE MONIQUE WHITE, Plaintiff-Appellant, v. RICHARD ST. PAUL, Defendant-Respondent.
Francine Monique White, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Kennedy.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-1497-08.
Francine Monique White, appellant pro se.
Respondent has not filed a brief. PER CURIAM
Plaintiff Francine Monique White appeals from certain provisions of a Family Part order dated February 17, 2012, which was entered after review of her motion to enforce obligations of defendant Richard St. Paul to pay child support and provide health insurance for the parties' four-year-old child. Plaintiff argues the motion judge abused his discretion by: ordering her to apply for, and if eligible, enroll in NJ FamilyCare as the child's health insurance provider, rather than enforcing a prior order requiring defendant to obtain health insurance coverage; directing defendant to advance three months premiums on the applicable health insurance policy; requiring the parties exchange financial information even though defendant's motion for modification of child support was denied; and only partially awarding counsel fees incurred in the enforcement application. We conclude the judge's order requiring the exchange of financial information, although no modification motion was pending, was premature and must be vacated. In all other respects, we affirm.
Since the child's birth, the parties have litigated extensively over issues including paternity, custody, child support, payment of medical insurance and uninsured medical expenses, provision of life insurance, and counsel fees. Once the obligations were fixed, plaintiff's motions for enforcement were routinely met by defendant's motions to modify his obligations.
The most recent flurry of filings commenced with plaintiff's application seeking defendant's compliance with ordered obligations to obtain life insurance naming the child as a beneficiary, pay $5000 toward the accumulated child support arrearages, maintain child support payments collected by Probation Services, satisfy his share of the child's uninsured medical expenses, and pay counsel fees and costs related to plaintiff's need to file her enforcement motion. Plaintiff also requested the court to issue a warrant for defendant's arrest, and impose other sanctions regarding his alleged willful non-payment of child support. Defendant did not file a responsive pleading; however, counsel appeared on his behalf on the motion's return date.
On December 9, 2011, the motion judge conducted a hearing, considering plaintiff's requests. He ordered defendant to provide proof of life insurance coverage to ensure the child's support; to pay $5000 to reduce the accumulated arrearages; to continue paying child support, which had been adjusted to $300 per week, by a wage execution through Probation Services; and to respond to plaintiff's informational subpoena issued to collect the judgment for awarded medical expenses. The motion judge reserved his determination on plaintiff's requests for sanctions and attorney's fees, allowing defendant two weeks to submit additional documentation and a brief responding to these requests.
Defendant filed a letter informing the court of his compliance with the December 9, 2011 order. He included proof he had applied for the required life insurance policy, responded to plaintiff's information subpoena, and paid $1000 toward his support arrearages. Further correspondence between counsel for the parties reflected defendant's position with the City of New Rochelle, New York had been terminated on December 31, 2011. He was offered continuation of medical benefits at his cost, as permitted by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 29 U.S.C.A. §§ 1161 to -1169. Plaintiff responded, filing an additional certification, reiterating her requests for enforcement sanctions, including defendant's arrest, suspension of his driver's license, and suspension of his license to practice law in New Jersey.
On January 26, 2012, the motion judge reviewed the submissions relative to plaintiff's Rule 5:7-5 sanction requests, which he had reserved in the December 9, 2011 order. He found defendant failed to fully comply with the order; consequently, defendant's New Jersey driver's license was ordered suspended. Also, defendant was ordered to satisfy the child support arrearages, fixed at $32,188.88, within thirty days or his license to practice law in New Jersey would be suspended. The judge denied plaintiff's request to issue a warrant for defendant's arrest. Further, the order mandated defendant pay $3,373.32 of the child's medical expenses and $2500 toward plaintiff's counsel fees.
The January 26, 2012 order also granted plaintiff's request to file a motion on short notice, which we believe was directed to the issue of the child's health insurance. Before defendant could arrange for the continuation of COBRA benefits, plaintiff had provided payment for a three-month period. When defendant learned of this event, he reimbursed plaintiff. Defendant filed a cross-motion seeking modification of his support obligations based on the increased COBRA insurance costs and requested plaintiff enroll the child in NJ FamilyCare, the State-funded Medicaid program extending various medical insurance programs to eligible adults and children. See N.J.S.A. 30:4J-8 to -19 (designated as the Family Health Care Coverage Act).
We note a motion on short notice is generally a local federal practice. Under State rules of procedure, emergent applications are presented by orders to show cause as authorized by R. 4:52-1, generally, and for specific matters as set forth in other rules, see, e.g., R. 1:10-2 (authorizing an order to show cause for contempt); R. 5:7-5 (authorizing orders to show cause in certain child support enforcement matters).
Plaintiff's pleadings are not contained in the record, contrary to R. 2:8-1(a) (providing the "appendix shall include the . . . pleadings or other portions of the record" where essential). However, defendant's responsive certification suggests the emergent application sought medical insurance for the child who was scheduled to undergo medical procedures.
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At the time of the hearing, the parties had executed a consent order resolving defendant's life insurance obligation and the COBRA benefits were in place until April 1, 2012. Addressing the remaining issues, the judge ordered defendant to secure health insurance commencing April 1, 2012, or pay COBRA premiums to continue the child's benefits. Plaintiff was ordered to apply for NJ FamilyCare, and, if the child was eligible, to secure enrollment. Defendant remained obligated to pay the cost of medical insurance by advancing payment for a three-month period, every three months. The motion judge denied, without prejudice, defendant's motion to modify his child support obligation, allegedly based on the change of circumstances occasioned by the obligation to provide COBRA coverage. However, once the child's health insurance was secured on a long-term basis, either party was free to file a motion to modify child support. With regard to "further enforcement" of the previous orders, the motion judge required the parties to exchange their 2011 tax returns, W-2s and 1099s for 2011, and pay stubs for 2011; ordered defendant to appear for a court-ordered deposition before March 31, 2012, and awarded plaintiff counsel fees of $2500. Plaintiff's appeal ensued.
Clear standards guide our review. A motion judge's factual findings and legal conclusions will not be disturbed "'unless we are 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[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998) (stating that family court factfinding warrants deference because family courts have "special jurisdiction and expertise in family matters"). Nonetheless, we confer no deference to a trial court's interpretations of the law, which we review de novo to determine whether the trial court correctly adhered to the applicable legal standards. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
Plaintiff's appeal attacks the judge's exercise of discretion in ordering her to apply for and enroll the child in NJ FamilyCare; allowing defendant to provide payment every three months; requiring the exchange of financial information; and limiting her attorney fee award to $2500. 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." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (internal quotation marks and citations omitted).
We note some of plaintiff's challenges to the February 17, 2012 order were not raised before the trial court. It is a well-settled principle that this court will decline to consider issues not properly presented to the trial court when an opportunity for such a presentation was available. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted). Nevertheless, we will briefly comment on these matters.
Plaintiff suggests, for the first time on appeal, that the burden of providing the child's health insurance rests with defendant; therefore, she should not be obligated to enroll in NJ FamilyCare. This argument is meritless.
The New Jersey Legislature has articulated the State's public policy to assure children are provided health insurance coverage. See N.J.S.A. 26:15-1(g) (mandating all children in the state must "have health care coverage, either through public programs or private coverage[,]" under the New Jersey Health Care Reform Act, N.J.S.A. 26:15-1 to -2). The New Jersey Child Support Guidelines place the same obligation on both parents, even though they may be separated or divorced. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX—A to R. 5:6A at 2563 (2013) ("If health insurance is available to both parents, the parent who can obtain the most comprehensive coverage at the least cost shall be ordered to provide health insurance for the child." (emphasis added)).
By ordering plaintiff -- the only parent residing in New Jersey and thus the only parent eligible to obtain NJ FamilyCare -- to obtain coverage, see N.J.S.A. 30:4J-11, (limiting eligibility to NJ FamilyCare to New Jersey residents), the motion judge followed public policy by requiring both parents to explore all available avenues of insurance coverage for this young child. Plaintiff's myopic argument, concerned with assuring defendant is burdened while she is not, fails to see the whole picture: that defendant's loss of employment, limited assets, and obligation to support four additional children may well preclude his ability to continue COBRA benefits for this child because of the cost exceeding $550 per month. Moreover, defendant remained ordered to provide payment. We find no abuse of discretion.
In a related argument, plaintiff takes exception to the order's provision allowing defendant to pay premiums, whether COBRA or NJ FamilyCare, directly to her rather than mandating collection through a wage execution. Again, this request was not presented to the motion judge. Nevertheless, the record makes clear a wage order had not been effectuated because defendant lost his government employment and because probation had inexplicably delayed the submission of an interstate petition under the Uniform Interstate Family Support Act, N.J.S.A. 2A:4-30.65 to -30.123. Plaintiff may seek payment by wage execution once it is effectuated and the amount of the insurance ascertained. See N.J.S.A. 2A:17-56.8 (stating child support obligations, including health care coverage, must be enforced through income withholding unless the parties agree in writing or either party demonstrates good cause to establish an alternative arrangement). See also R. 5:7-5(b) (providing "[a]ll orders that include child support shall be paid through immediate income withholding"); Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290, 308-09 (App. Div. 2007) (holding, pursuant to statute and court rule, the trial court erred in declining to order child support paid through wage execution absent agreement between the parties or a finding of good cause (citing N.J.S.A. 2A:17-56.8; R. 5:7-5(b))).
Next, plaintiff maintains the judge erred in ordering the exchange of financial information between the parties, even though defendant's motion for modification of child support obligation was denied without prejudice. We agree.
Initially, the judge considered delaying the exchange of documents until defendant had secured a long-term health insurance program for the child. Implicit in such a ruling is the fact the parties would know at that time whether the cost incurred exceeded the prior ordered payment such that a modification of child support was warranted. On the other hand, were defendant to obtain employment earning the same income, which provided medical insurance without cost, he would have no basis to modify support.
However, the order imposed the requirement within fourteen days without any preconditions, merely anticipating modification motions based on the historically litigious nature of the parties. Although ringing of practicality, we are constrained to reverse this provision.
A prima facie showing of changed circumstances must be made before a court will order discovery of financial information. Lepis v. Lepis, 83 N.J. 139, 158 (1980). Anticipation of an event is insufficient. See Donnelly v. Donnelly, 405 N.J. Super. 117, 131 (2009) (holding an opponent of a motion for modification of child support obligations based on changed circumstances is not required to disclose financial information until such time as the movant demonstrates a change in circumstances).
Lastly, plaintiff decries the award of counsel fees, contending she should have been awarded all that she requested. We disagree.
N.J.S.A. 2A:34-23 provides that:
Whenever [an] . . . application is made to [the] court which includes an application for . . . counsel fees, the court shall determine the appropriate award for counsel fees, if any, . . . consider[ing] the factors set forth in [Rule 5:3-5], the financial circumstances of the parties, and the good or bad faith of either party.
Rule 5:3-5(c) allows the court to award counsel fees to "any party successful in the action, on any . . . claims relating to family type matters[,]" which is not exclusive to matrimonial matters and equally applies to actions between unmarried persons. In determining whether to award attorney's fees, the court must consider:
(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.See also Adessa v. Adessa, 392 N.J. Super. 58, 78 (App. Div. 2007) (reiterating the factors considered in awarding attorney's fees in family matters).
[Ibid.]
Although not enumerating each provision, the motion judge addressed these factors, concluding defendant failed to comply with the December 9, 2011 order; consequently, plaintiff was successful in her application seeking health insurance. The motion judge also determined her application contained a reiteration of the sanctions previously submitted, rather than waiting for the court's final determination of these matters. The motion judge's factual findings adequately support his conclusions and will not be disturbed.
Any additional issues raised by plaintiff, but not specifically addressed in our opinion, were found to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and 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