ANGEL HERNANDEZ v. ELIDA DEL CARMEN MEZA

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Superior Court of New Jersey, Appellate Division.

ANGEL A. HERNANDEZ, Plaintiff–Appellant, v. ELIDA DEL CARMEN MEZA, Defendant–Respondent.

DOCKET NO. A–4276–12T1

Decided: April 7, 2014

Before Judges Parrillo and Harris.

Plaintiff Angel A. Hernandez appeals from the Family Part's April 1, 2013 post-judgment order enforcing litigant's rights vis-à-vis child support payments required by an order allegedly issued on May 17, 2002.   We reverse and remand for an entirely new evidentiary hearing.

I.

Hernandez and defendant Elida Del Carmen Meza were married in June 1993.   The parties have two daughters, who presently are adults.   In June 1994, under docket number FD–09–5124–94, Meza obtained an order in the Family Part declaring, with the parties' consent, Hernandez to be the father of the younger daughter.   The order provided:

Plaintiff and defendant to provide medical benefits for [the child].   Plaintiff, Elida Meza is not seeking assistance from the court for child support at this time.

Meza moved with the children to Panama in November 1994, and never returned to New Jersey until 2012.

Notwithstanding Meza's residence in Panama, a default judgment of divorce was entered by the Family Part on January 14, 1999.1  The judgment, presumably prepared by Hernandez's attorney at the time, did not identify the parties' children, and it made no provision for custody or child support.   It merely adjudged that the parties “be divorced from the bond of matrimony ․, and the said parties, and each of them, be freed and discharged from the obligations thereof.”   Meza testified that she was unaware of the judgment until January 2013, when court staff informed her of its existence.

On January 4, 2013, Meza filed a motion to enforce litigant's rights.   Although she stated that she was previously unaware of the existence of the May 2002 order for child support, after fortuitously learning of its existence Meza requested that the court order Hernandez to “comply with the order previously entered by the court for child support of [their] two (2) daughters until year 2011.”

Hernandez filed opposition to Meza's motion.   He certified that he was unaware of the May 2002 child support order, and did not receive any court papers in connection with the alleged order.   He further averred that both of his daughters were over the age of eighteen, and that he had not seen them since Meza left with the children for Panama in 1994.

An evidentiary hearing was held on February 1, 2013.   The parties and one daughter testified at the hearing.

According to a January 31, 2013 summary printout from the Family Automated Case Tracking System (FACTS),2 an order for child support was apparently entered on May 17, 2002, under the divorce docket number.   However, according to the Family Part judge, “[a]n original of this support order [wa]s not in the court jacket[.]”  No one successfully obtained the original or copy of the May 17 order or Meza's application therefor.   The “DOCUMENT COMMENTS” contained in the FACTS printout 3 stated the following:

$159.C/S+$10.ARRS=$169.P/WK

The Family Part judge interpreted this cryptic abbreviation to mean that Hernandez had been ordered to pay $159 per week in child support to Meza, plus $10 per week for arrears, commencing on May 17, 2002.4

Meza testified that she was not in the United States in 2002, but she “did remember that [she] filed online.”   Meza believed she filed an application through New Jersey Child Support Online 5 in 2000, but she could not explain how an order was entered two years after she filed.   She further testified that she did not file any other applications with the court.   Meza explained that when she filed her online application, she was informed that her application “was submitted,” but she had no evidence pertaining to her application as it “was so many years ago, [and][she] didn't save anything.”   Meza further explained that she never appeared for a hearing regarding child support, and she never received any notice that the court was going to have a hearing on her application.   Finally, Meza told the court that she never received any support from Hernandez, except for $800 in May 2012.6

Hernandez testified that he never went to court regarding child support.   He further stated that he never received notice to come to court, and was never notified that the May 2002 order existed.   Finally, he stated that when his daughters showed up unannounced at his dwelling in May 2012, he “was surprised, and [he] didn't know what they're saying because [he did't] recognize either of them.”

On April 1, 2013, the Family Part judge granted Meza's motion.   The judge also issued a four-page opinion, which explained the decision to enforce the May 2002 order.   The judge noted that there was no original of the May 17, 2002 order in the “court jacket.”   Referring to the “court's independent efforts” to find the May 2002 order, “no documentation could be found to determine the basis upon which the order establishing child support at the rate of $159 per week with $10 in arrears was entered on May 17, 2012[sic].”   Nevertheless, without addressing Hernandez's claim that he never received notice of Meza's online application in 2002, the judge found “no reason to vacate or modify the [May 17, 2002] order.”   Additionally, the judge noted, “Although this [c]ourt was unable to determine through testimony and inquiry of the Case Manager's Office precisely how this support amount was established, it is presumed to be valid.”   The opinion did not address the accuracy of the FACTS printout, Hernandez's claim of lack of notice, and Meza's inconclusive testimony about when and what she sought in her online application.7  The judge declared:

Instead, validity and enforcement depend on a totality of circumstances that speak to an overall understanding by the party otherwise prejudiced that he knew he had children and had an obligation to support them.   This is a fair and equitable outcome within the broad authority of the court to ensure continued support in post-judgment applications to modify child support.

Thus, because Hernandez “knew he had two children,” “had an obligation to support his children,” and “can be said to have ‘enjoyed’ a nearly four-year hiatus in which he was under no court-ordered obligation to pay support (from date of filing for divorce, May 22, 1998, through date of establishment of support order, May 17, 2002),” the judge “[did] not find that there has been a change in circumstance warranting modification of the existing support order.” 8  This appeal followed.

II.

On appeal, Hernandez argues that his due process rights were violated insofar as there was no evidence that he was notified of either the application for, or entry of, the putative May 17, 2002 child support order.   We agree, mainly because the Family Part judge neglected to resolve this critical issue of notice,9 and never ascertained the accuracy of the FACTS printout by conducting a diligent search for the original or certified copy of the order.

“The scope of appellate review of a trial court's fact-finding function is limited” and “findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.”  Cesare v. Cesare, 154 N.J. 394, 411–12 (1998).   Moreover, “[w]e accord particular deference to the judge's factfinding because of ‘the family courts' special jurisdiction and expertise in family matters.’ ”  Clark v. Clark, 429 N.J.Super. 61, 70 (App.Div.2012) (quoting Cesare, supra, 154 N.J. at 413).   We may reverse only if there is “a denial of justice because the family court's conclusions are clearly mistaken or wide of the mark.”  Parish v. Parish, 412 N.J.Super. 39, 48 (App.Div.2010) (internal quotation marks and citation omitted).  “[T]he trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review.”  Reese v. Weis, 430 N.J.Super. 552, 568 (App.Div.2013).

“ ‘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. (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 Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Hernandez argues that “[i]f there is no record of a proceeding [he] cannot be held responsible when he and the other litigant were not notified of a hearing or even received notice of the award.”   He claims that the Family Part judge's enforcement of the May 2002 order was manifestly unsupported by, or inconsistent with, the competent, relevant, and reasonably considered evidence.   Specifically, Hernandez alleges that the FACTS record was insufficient proof that a May 2002 order existed;  that the judge ignored the only order regarding child support in 1994;  there was no evidence that a probation account existed that tracked a child support order;  and that the judge ignored Meza's testimony that she was unaware of the existence of a support order until late 2012.

Pursuant to our Rules, “a summary action for support may be brought by ․ the party entitled thereto ․ provided no other family action is pending in which the issue of support has been or could be raised.”   R. 5:6–1.   Here, if Meza is to be believed,10 when she applied online for child support in either 2000 or 2002, she may not have been aware of the divorce judgment, and was proceeding appropriately in a summary fashion.   However, once the 1999 final divorce judgment was discerned, at least by court officials, the child support matter should not have automatically proceeded in a summary fashion.   Furthermore,

If the plaintiff does not attend the hearing, the court may dismiss the complaint, adjourn the matter to a future date and renotify the parties or take other appropriate action.   On its own or a party's motion on good cause shown the court may order that the matter proceed in a plenary manner as it shall direct.

[R. 5:6–3.]

Here, Meza testified that she never appeared for a hearing in 2002, and the record is devoid of any evidence establishing that the parties were ever provided with notice to appear.   Although there probably is a plausible explanation for how an order might have been entered in May 2002, it is nowhere to be found in this record.   Because the underlying 2002 order was legitimately challenged, in order for Meza to prevail on her 2012 enforcement motion, she needed to present evidence to establish that such an order actually existed, and that Hernandez received notice of the application and order.   These proofs may, indeed, exist in an archived court file, but they were conspicuously absent at the hearing conducted in the present case.

Finally, while the Family Part judge mentioned that he made independent efforts to locate a copy of the May 2002 order, he did not specify exactly how he attempted to obtain it.   If the order were not in the Hudson vicinage, he, or court staff, could have contacted the Clerk of the Superior Court and attempted to retrieve a copy of the order as provided by Administrative Directive # 03–01 and its progeny.   See R. 1:32–2(a).   Given the passage of time, we cannot be sure that such an effort would be successful, but due process demands that all reasonable efforts be made to confirm the validity, or lack thereof, of the May 2002 order, particularly when its existence is so uncertain.   Given the vagaries of data input and the vicissitudes of digital information retention, the FACTS printout is an insufficient surrogate to bottom a finding that the order was bona fide.   See R. 1:32–2(d) (requiring a photographic or electronic reproduction or image of the original to be receivable in evidence in any court or proceeding in the event of any destruction or other disposition of court records).

We do not take issue with the Family Part judge's discussion of the equities or his comment about how Hernandez's counsel at the time of the judgment may have failed to fulfill the duty of candor to the judge who signed the divorce judgment.   However, these are secondary considerations to due process.   If a May 2002 order never existed, or if it were entered without appropriate due process of law, an enforcement rationale is mere surplusage.   On remand, the first issue that must be addressed is whether, in fact, there ever was a valid order for child support entered against Hernandez.   If not, then Meza's enforcement motion must be denied.   Alternatively, if the May 17, 2002 order is found to be valid, and its $10 per week arrears' component explained, the Family Part is authorized to exercise its full reservoir of powers and principled discretion in deciding what remedies, if any, should be provided to Meza.

Reversed and remanded for a new evidentiary hearing in accordance with this opinion.   We do not retain jurisdiction.

FOOTNOTES

1.  FN1. The judgment recites that service upon Meza was accomplished by publication “pursuant to the order of this court dated August 24, 1998.”

2.  FN2. See http://www.judiciary.state.nj.us/ito/facts.htm.

3.  FN3. Also, handwritten across the bottom of the printout was the notation:  “FD–09–5124–94.”

4.  FN4. Because the 1999 divorce judgment did not provide for child support, and there are no other orders in the record requiring such payment, we cannot explain how, in May 2002, there could have been any child support arrears due, unpaid, and owing.

5.  FN5. We assume that Meza was referring to the online child support application process that is now found at http://www.njchildsupport.org/.

6.  FN6. Meza called Hernandez in May 2012, when she arrived in New York and asked him for $1500 for airplane tickets to Miami, but Hernandez could only give her $800.

7.  FN7. For example, Meza testified that when she submitted her online application in 2002, even though she was employed, she only disclosed her expenses, not her income.   She further indicated that she did not know how the $159 weekly child support amount was calculated.   As we noted, the Family Part judge also was unable “to determine the basis upon which the order establish[ed] child support at the rate of $159 per week with $10 in arrears.”

8.  FN8. We note that Hernandez never sought to modify the May 2002 order.   Rather, he claimed that if such an order existed, it was void for lack of due process.

9.  FN9. Ironically, the judge recognized the issue of due process during the hearing, explaining to Meza, “Because the point that [Hernandez's attorney] is making, just so you understand, is it's called due process.   He's talking about fundamental fairness.”

10.  FN10. Since the Family Part judge never commented on either party's credibility, we cannot be sure whom to believe with respect to court filings, notice, and the actual entry of a valid order.   Because there must be a remand for a new evidentiary hearing, the remand judge shall be free to make independent and fresh credibility determinations.

PER CURIAM

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