Giordano v. Giordano

913 A.2d 146, 389 N.J. Super. 391
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 9, 2007
StatusPublished
Cited by1 cases

This text of 913 A.2d 146 (Giordano v. Giordano) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giordano v. Giordano, 913 A.2d 146, 389 N.J. Super. 391 (N.J. Ct. App. 2007).

Opinion

913 A.2d 146 (2007)
389 N.J. Super. 391

Nancy GIORDANO, Plaintiff-Respondent,
v.
John GIORDANO, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted December 6, 2006.
Decided January 9, 2007.

John Giordano, appellant pro se.

Nancy Giordano, respondent pro se.

Before Judges WEFING, C.S. FISHER and MESSANO.

The opinion of the court was delivered by

FISHER, J.A.D.

In this appeal, we reject an argument that federal law, once triggered, preempts state law or otherwise prohibits a state court from compelling a delinquent parent to pay child support arrearages at a rate greater than that imposed by a federal court in ordering restitution pursuant to the Child Support Recovery Act, 18 U.S.C.A. § 228.

*147 I

The relevant facts are few and not in dispute. The parties were married, had three children, and, in 1988, were divorced. As a result of failing to pay child support for considerable periods of time, defendant John Giordano was convicted in February 1995 of willfully failing to pay child support, N.J.S.A. 2C:24-5. He was sentenced to 364 days in the county jail but, after serving four months, was released and moved to Florida. He paid child support from August through November 1995, but then "disappeared" for the next five years.

On October 13, 2000, defendant was located through the efforts of a federal program known as "Project Save Our Children." He was extradited to New Jersey and later pled guilty to violating the Child Support Recovery Act, 18 U.S.C.A. § 228(a)(3), which makes unlawful an obligor's willful failure to pay child support with respect to a child who resides in another state if such obligation has remained unpaid for a period longer than two years or is in an amount greater than $10,000. Defendant was sentenced on October 29, 2002 to a five-year period of probation and was, as mandated by 18 U.S.C.A. § 228(d), ordered to pay restitution pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.A. § 3663A. The federal judge directed that defendant make restitution in the amount of $232,934.42 at the rate of $400 per month.

More recently, defendant appealed a Family Part order entered on November 12, 2004. That order declared the two older children to be emancipated, readjusted defendant's obligation by directing that he pay plaintiff $147 per week for the support of their youngest child, and required that defendant pay an additional $100 per week against the substantial child support arrearage. We affirmed that order by way of an unpublished opinion. Giordano v. Giordano, Docket No. A-4194-04T1, 2005 WL 3999745 (App.Div., May 12, 2006). On May 31, 2005, during the pendency of that appeal, the federal judge granted defendant's request for a modification of the conditions of probation and directed defendant to make restitution payments "of at least $100 each month," less than one-fourth of what the Family Part order required.

On September 30, 2005, a Family Part judge entered an order, which (1) held the parties' youngest child to be emancipated as of July 25, 2005, (2) terminated defendant's child support obligation, (3) declared that $250,777.42 in child support remained due, and (4) directed that this arrearage be paid by defendant at the rate of $247 per week. Soon after, defendant moved in the Family Part for relief from the September 30, 2005 order, arguing, among other things, that the Family Part was without jurisdiction either to determine the amount of arrears owed or to impose a particular payment schedule because, in his view, the federal court had "continuing jurisdiction" over the matter. Implicitly finding no merit in that contention, the Family Part judge entered an order on January 23, 2006, which modified the September 30, 2005 order by directing that the child support arrearage be paid at the rate of $150 per week — a rate lower than the Family Part's September 30, 2005 order but greater than the May 31, 2005 federal order.

Defendant has appealed, arguing that the January 23, 2006 order should be set aside because it conflicts with the May 31, 2005 federal order. Although the pro se briefs do not state the case in legal terms, we discern from defendant's contentions that he believes the federal Child Support Recovery Act preempts state law and prevents state courts from imposing or enforcing child support orders in a manner *148 different from or in more onerous terms than that imposed by federal courts. We reject these contentions.

II

Congress' power to preempt state law is derived from clause 2 of Article VI of the United States Constitution, the Supremacy Clause. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909, 85 L.Ed.2d 206, 213 (1985). Federal preemption of state law may be either expressed or implied. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604, 613 (1977). Express preemption is "determined from an examination of the explicit language used by Congress." Gonzalez v. Ideal Tile Importing Co., 184 N.J. 415, 419, 877 A.2d 1247 (2005). Implied preemption can appear in two forms: "field preemption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict preemption, where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73, 84 (1992) (internal quotations omitted). Since the Child Support Recovery Act does not expressly declare that it displaces state law, there is no basis for a claim of express preemption. Determining the presence of implied preemption, however, is often nuanced and difficult to ascertain. The "ultimate touchstone" is the intent of Congress, Allis-Chalmers, supra, 471 U.S. at 208, 105 S.Ct. at 1910, 85 L.Ed.2d at 214, the ascertaining of which commences with a presumption that there was no intent to displace state law, particularly where, as here, "the field which Congress is said to have preempted has been traditionally occupied by the States," Gonzalez v. Ideal Tile Importing Co., 371 N.J.Super. 349, 363, 853 A.2d 298 (App.Div.2004), aff'd, 184 N.J. 415, 877 A.2d 1247 (2005). We are satisfied from the language and legislative history of the Child Support Recovery Act that its scope is not so "pervasive" as to generate an inference that the states were left no room to act in this field. And we are likewise convinced that the states' continued exercise of their traditional authority over domestic relations matters, including the entry and enforcement of child support orders, was not thought by Congress to represent an obstacle to federal regulation.

Field preemption is not present because the Child Support Recovery Act does not extend to all child support obligors. It expressly limits its application to interstate obligations — in order to constitute a valid exercise of congressional power under the Commerce Clause, U.S. Const., art. I, § 8, cl. 3 — and also applies only to obligors who "willfully" fail to comply with their obligations and who accrue arrearages in particular amounts or for a designated length of time.[1] Obviously, as a result of these

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913 A.2d 146, 389 N.J. Super. 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giordano-v-giordano-njsuperctappdiv-2007.