DEIRDRE BREITHAUPT VS. JERRY EISENSTEIN (FD-12-0749-18, MIDDLESEX COUNTY AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2873-18T3

DEIRDRE BREITHAUPT,

Plaintiff-Appellant,

v.

JERRY EISENSTEIN,

Defendant-Respondent. _________________________

Submitted February 24, 2020 – Decided March 16, 2020

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-0749-18.

Deirdre Breithaupt, appellant pro se.

Jerry Eisenstein, respondent pro se.

PER CURIAM

Plaintiff Deirdre Breithaupt appeals from a December 5, 2018 order that

waived interest charged against defendant Jerry Eisenstein and reduced the weekly amount he was required to pay toward his child support arrears. The

trial court entered a judgment on February 26, 1997, whereby plaintiff retained

sole custody of the parties' child, and defendant became obligated to pay child

support under the terms of the judgment. After reviewing the record, and in

light of the governing legal principles, we affirm.

I.

In September of 1993, plaintiff and defendant had a child, S.L.B.1 The

parties were never married. On February 26, 1997, the trial court entered a

judgment concerning custody, child support, and other issues. The order granted

plaintiff "sole and exclusive legal and residential custody of [S.L.B.]" and

required that defendant pay weekly child support of $160 for S.L.B.'s support

and maintenance "until further [o]rder of this [c]ourt or until [S.L.B.'s]

emancipation." The support obligation was retroactive to October 15, 1993.

The order also mandated that defendant "pay arrearages, plus interest in

accordance with [Rule] 4:42-11, as follows: [$2500] within thirty . . . days of

January 31, 1997 and $50[] per week thereafter."

On October 9, 2002, the judgment was registered in the State of New

York. In October 2008, defendant was incarcerated after he fell behind on the

1 We use initials to protect the privacy of the child and for ease of reference. A-2873-18T3 2 child support payments. Upon his release, he was unable to find work and began

living on social security. On January 20, 2009, a New York family court ordered

that defendant pay plaintiff $97,412.27 in arrears plus costs and disbursements.

On February 1, 2011, the trial court entered an order that relinquished

jurisdiction of the case to New York, based on plaintiff's consenting to the same

on February 10, 2003. However, the matter was dismissed in New York on

September 11, 2014, after the New York family court found that defendant no

longer lived in New York.

Defendant sought to modify his child support obligation, but the trial court

denied his application on January 21, 2016 because S.L.B. was "attending school

full time." On December 9, 2016, S.L.B. became emancipated.

On June 12, 2018, defendant filed an application for a downward

modification of the 1997 order, seeking to modify his arrears and to have any

accrued interest waived. After unsuccessfully petitioning the Probation

Division for this relief, defendant applied to the trial court for the same relief.

The parties appeared before the motion judge on October 30, 2018.

On December 5, 2018, the motion judge entered an order waiving

$81,930.28 in interest charged to defendant by the State of New York. The order

also directed defendant to pay $32,670.70 in arrears in weekly payments of $50

A-2873-18T3 3 until the balance was paid. On July 2, 2019, the motion judge issued an

amplification of the December 5, 2018 order. The judge explained that as of the

return date of defendant's application for a downward modification, he had

found defendant's total arrears to be $163,332.27, which consisted of $97,412.27

from the January 2009 order and $65,920 in support payments owed from

January 21, 2009 through December 9, 2016, the date of S.L.B.'s emancipation.

The judge found that defendant had paid $130,661.57 toward this balance. The

judge noted that plaintiff argued that defendant's accrued interest at this time

should be $81,930.28, but the judge explained that "any interest can only be

calculated after a warrant of satisfaction is provided. This has not occurred and

thus any assessment of interest would be improper."

The judge also found that plaintiff had not shown good cause that would

warrant assessing interest payments, in light of the following:

Defendant receives social security, does not own any real estate, does not possess any retirement plans, and submits that his only asset is a vehicle worth [$5000] . . . . Defendant is disabled and is unable to work. In 2008, [defendant] was incarcerated for six . . . months at the age of [sixty-two] for his inability to pay child support. He was hospitalized throughout the entirety of his incarceration due to complications stemming from his numerous health ailments. Upon his release, he was unable to find employment, which in turn affected his ability to timely pay his future obligations, allowing interest to accrue. Defendant is now [seventy-three]

A-2873-18T3 4 years old and continues to suffer from numerous health ailments.

The judge considered that defendant's monthly social security income after

deductions for support payments was only $698.20, while his monthly income

absent the support payments would be $2106. The judge also highlighted that

defendant testified to monthly expenses of $1800,2 defendant's only source of

income is social security, and defendant claims he has never met his daughter,

who is now emancipated. The judge contrasted defendant's situation with that

of plaintiff, finding no "similar claims of financial hardship," as she "has been

a federal government employee earning in excess of $100,000 annually." The

judge thus concluded that "even if any judgment were satisfied, any assessment

of post-judgment interest is not warranted."

In reducing defendant's weekly payments, the judge found that

[d]efendant has made a showing of a change in circumstances by showing the extent of his disability with substantial medical records and his resulting loss of income. Defendant is [seventy-three] years old and suffers from a variety of health ailments including Type I diabetes, retinopathy (eye disease), [and] neuropathy (nerve disease). Such ailments cause him to experience decreased vision, shakiness, and fatigue.

2 These expenses include "rent, renter's insurance, repair costs, phone bill, food, laundry, clothing, health insurance, automobile insurance and expenses, and internet service." A-2873-18T3 5 The judge concluded that based on defendant's limited income, as well as his

medical ailments, "a decrease in [defendant's] weekly arrears payments was

warranted." This appeal ensued.

On appeal, plaintiff raises the following arguments:

I. THE TRIAL COURT FAILED TO PROVIDE A FACTUAL BASIS FOR ITS DECISION THAT CHILD SUPPORT MONEY JUDGMENT ARREARAGE INTEREST WAS INAPPLICABLE AND CORRELATE IT WITH RELEVANT LEGAL CONCLUSIONS[.] (NOT RAISED BELOW).

II. THE TRIAL COURT FAILED TO PROVIDE A FACTUAL BASIS FOR ITS DECISION TO REDUCE PAYMENT AMOUNT WITHOUT A NEW CHANGE IN CIRCUMSTANCES AND CONSIDER THE NEW LAW REQUIREMENTS RELATING TO CHILD SUPPORT PAYMENTS FOLLOWING EMANCIPATION[.] (NOT RAISED BELOW).

Plaintiff requests that this court reverse and remand the matter to the trial court

for a determination as to the correct monthly payment to be paid by defendant

toward arrears and the total arrears and interest owed.

II.

Our review of a Family Part judge's factual findings is limited. N.J. Div.

of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010)

(citing Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)). These findings "are

binding on appeal when supported by adequate, substantial, credible evidence."

A-2873-18T3 6 Cesare, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when the

evidence is largely testimonial and involves questions of credibility.'" Id. at 412

(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We

will only reverse if the trial judge's findings were "so manifestly unsupported

by or inconsistent with the competent, relevant and reasonably credible evidence

as to offend the interests of justice." Rova Farms, 65 N.J. at 484 (quoting

Fagliarone v. Township of North Bergen, 78 N.J. Super. 154, 155 (App. Div.

1963)). However, we give no deference to a trial court's interpretation of the

law. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App.

Div. 2006) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

III.

Plaintiff first argues that the motion judge erred by waiving the

$81,930.28 owed by defendant for outstanding interest. Plaintiff relies on our

decision in Pryce v. Scharff, 384 N.J. Super. 197 (App. Div. 2006), arguing that

the court was required to impose such interest. We disagree.

In Pryce, we considered whether the plaintiff was "entitled to an order

adding post-judgment interest to [the] defendant's Probation-enforced child

A-2873-18T3 7 support account." Id. at 202. We held that the New Jersey Department of

Human Services calculates post-judgment interest at the time of execution or

satisfaction of a child support judgment. Id. at 215. In response to Pryce, our

Judiciary issued Administrative Directive #24-19, "Child Support Enforcement

– Calculation of Interest on Child Support" (Dec. 2, 2019) (the Directive):

When the obligor pays the full arrears, such payment shall be accepted and posted immediately. After receipt of the obligor's full arrears payment and request for a warrant of satisfaction, the warrant of satisfaction shall be provided to the judgment creditor[] . . . and the judgment creditor shall be informed of the right to post-judgment interest. The parties may agree on an interest calculation or may agree to waive or compromise such interest in a warrant of satisfaction.

Here, we find that the motion judge's decision to waive defendant's

interest was both legally sound and based on ample credible evidence in the

record. See Cesare, 154 N.J. at 411-12; Rova Farms, 65 N.J. at 484. Our holding

in Pryce is clear that post-judgment interest is determined "at the time of

execution or satisfaction." Pryce, 384 N.J. Super. at 215 ("[W]hen an obligor

seeks a warrant to satisfy a judgment which is part of a Probation-administered

child support account, Probation must calculate any post-judgment interest and

ensure that the obligor pays the interest before the warrant of satisfaction is

issued."). The Directive expressly adopted this policy. See Administrative

A-2873-18T3 8 Directive #24-19. As the judge correctly found, because no judgment of

satisfaction has been requested or issued, any award of post-judgment interest

would be premature. Thus, we affirm the motion judge's holding that plaintiff

is not entitled to post-judgment interest at this time. 3

Next, plaintiff contends that the motion judge erred by reducing the

amount of defendant's weekly payments toward satisfying his arrears. Plaintiff

argues that such relief contravenes N.J.S.A. 2A:17-56.69, which mandates that

when child support obligations are terminated upon a child's emancipation, "any

arrearages that have accrued prior to the date of the termination shall remain due

and enforceable." Because the judge reduced the amount of the weekly

payments without reducing the amount of the judgment, the judge's decision did

not run afoul of this statute.

In that regard, the motion judge's finding of changed circumstances is well

supported by the evidence, which shows that defendant is of advanced age, he

relies on social security as his sole source of income, and he suffers from several

medical ailments "including Type I diabetes, retinopathy (eye disease), [and]

3 We need not address the motion judge's holding that defendant's interest payments should be waived based on defendant's change in circumstances. A reviewing judge may determine this issue at the time a judgment of satisfaction is executed. A-2873-18T3 9 neuropathy (nerve disease)" that "cause him to experience decreased vision,

shakiness, and fatigue." We find that the judge had a sufficient basis to decrease

defendant's weekly support payments in light of the gap between his low income

and his monthly expenses. See Lepis v. Lepis, 83 N.J. 139, 149-52 (1980). As

the motion judge made clear that defendant must still pay the remaining

$32,670.70 in arrears, there is no discernible prejudice to plaintiff. See ibid.

To the extent that we have not addressed any of plaintiff's remaining

arguments, we conclude that they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-2873-18T3 10