WAGE GARNISHMENT - LAWYER IN HUDSON COUNTY NEW JERSEY (201) 646-3333

 

PETER DALEDDA, Plaintiff-Appellant,
v.
LORETTA GUARDINO, Defendant-Respondent.

No. A-3215-15T3.
Superior Court of New Jersey, Appellate Division.

Argued August 1, 2017.Decided August 17, 2017.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1937-10.

Jenny Berse argued the cause for appellant.

Francesca S. Blanco argued the cause for respondent.

Before Judges O'Connor and Whipple.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM.

Plaintiff appeals from a March 22, 2016 Family Part order denying his motion for reconsideration. We affirm for the reasons that follow.

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Plaintiff and defendant were married on June 21, 1987, and had one child. The couple divorced March 8, 2011, entering into a property settlement and support agreement (the agreement). The agreement obligates plaintiff to pay defendant $42,500 per year in permanent alimony in equal installments of $817.31 per week. The agreement states plaintiff was fifty-two years of age at the time of the divorce and worked as an executive chef in New York City, making a salary of $180,400 per year. He also had a 401K savings plan through his employer and an Individual Retirement Agreement (IRA). Defendant had worked as a secretary, earning $20,800 annually, but was unemployed at the time of the divorce. She also had an IRA. The parties agreed to an equal equitable division of the marital portions of the various retirement and other accounts.

In March 2015, plaintiff lost his job. In June 2015, he stopped paying his alimony obligation. Defendant moved to enforce litigant's rights in July 2015. Plaintiff cross-moved seeking to terminate his alimony obligation, revisit his alimony obligation upon obtaining employment, and emancipate the parties' child.

On September 30, 2015, the Family Part judge found plaintiff's unemployment to be temporary in nature, denied modification, and issued an order requiring plaintiff to pay defendant $11,442.34 in alimony arrears and $2100 in child support arrears within fourteen days and to resume regular payments. The Family Part judge also denied emancipation of the parties' child.

On October 9, 2015, plaintiff moved for reconsideration of the September 30, 2015 order. In October 2015, plaintiff secured a new position earning $114,000 per year. On December 2, 2015, the Family Part judge entered an order granting plaintiff's motion for reconsideration in part, granting plaintiff's request for emancipation of the parties' child, denying plaintiff's request for modification of alimony, and denying both parties' requests for counsel fees. The Family Part judge discredited the discrepancy in income between plaintiff's former position and his new position, noting the cost of living in Florida, where plaintiff resides, is lower than in New Jersey/New York, and plaintiff's $114,000 per year salary was not in and of itself prima facie evidence he was unable to earn what he previously earned to establish changed circumstances.

Defendant received no alimony payments from plaintiff and filed another motion on December 8, 2015, seeking wage garnishment and probation monitoring. Plaintiff again moved for modification of alimony. On March 22, 2016, the Family Part judge granted defendant's request for wage garnishment and probation monitoring and ordered plaintiff to make a lump sum payment of $11,442.34 within thirty days. Plaintiff appealed from the March 22, 2016 order. On appeal, plaintiff argues the court erred by denying modification of alimony and requests the matter be remanded to a different judge; plaintiff also contends he should be awarded counsel fees. We disagree and affirm.

Appellate review is particularly deferential to family courts' findings of fact because of their unique expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Pearl Assurance Co. Ltd. v. Watts, 69 N.J. Super. 198, 205 (App. Div. 1961)).

Plaintiff asserts the record does not support the judge's determination and factual findings because the judge took no testimony and overlooked the parties' agreement, the applicable statutory factors, case law, and the substantial change in plaintiff's circumstances. He asserts he is entitled to a plenary hearing.

As noted above, plaintiff appeals only the motion for reconsideration and not the original order. See Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.) (citing Pressler, Current N.J. Court Rules, cmt. 6 on R. 2:5-1(f)(3)(i) (2002)) (explaining this court only considers judgments and orders listed in a notice of appeal), certif. denied, 174 N.J. 544 (2002). Accordingly, we review for an abuse of discretion. Ibid. We also note "[m]otions for reconsideration are granted under very narrow circumstances." Ibid.

Reconsideration should be used only for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990); R. 4:49-2).]

We discern no abuse of discretion on the part of the Family Part judge. As the judge correctly explained, when a party seeks to modify any support obligation under an agreement, the party must demonstrate "changed circumstances" supporting such a modification. See J.B. v. W.B., 215 N.J. 305, 327 (citing Lepis v. Lepis, 83 N.J. 139, 146-48 (1980)). A reduced income may qualify as "changed circumstances." Ibid. Family Part judges, however, have considerable discretion in determining whether a changed circumstance warrants an alimony modification. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). This discretion turns on a Family Part judge's "experience as applied to all the relevant circumstances presented." Ibid. We further note the party seeking modification has the burden of demonstrating such changed circumstances as would warrant relief from his or her obligation. Lepis, supra, 83 N.J. at 157. When a supporting spouse brings an application for a downward modification, the central focus is on "the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999).

Although the judge noted plaintiff's reduced income, he also noted the reduced reported income did not appear to be a permanent circumstance. In order to prove changed circumstances, the change must be permanent. Lepis, supra, 83 N.J. at 151. Accordingly, we conclude the Family Part judge's decision was not based on a palpably incorrect basis.

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Plaintiff's income at the time of the agreement was $180,000. Plaintiff asserts his current income from his new job is thirty-seven percent lower, but plaintiff has not demonstrated he cannot earn more. "Courts have consistently rejected requests for modification based on circumstances which are only temporary." Ibid. The issue is whether changed circumstances are enduring enough to warrant a modification. In other words, plaintiff must demonstrate his decline in income and his ability to earn are permanent. The motion judge correctly concluded plaintiff's evidence did not evince a showing of permanent changed circumstances. Accordingly, there was no basis upon which the Family Part was required to conduct a plenary hearing. See id. at 157 (explaining a court should hold a plenary hearing if "a party clearly demonstrate[s] the existence of a genuine issue as to a material fact").

We also conclude the court appropriately considered all of the relevant probative and competent evidence. See D'Atria, supra, 242 N.J. Super. at 401. The trial court reviewed plaintiff's submissions and found plaintiff did not demonstrate his earning capacity had substantially changed since the time the parties' executed agreement. We find no error on the judge's part in this regard.

Plaintiff's argument the Family Part judge disregarded the provision in the agreement permitting an application to modify it is unpersuasive. Plaintiff was permitted to, and did, make such an application, but he fell short of the proofs required to establish changed circumstances. Moreover, we reject the argument plaintiff is entitled to a modification merely based on defendant's employment status.

In light of our decision, we need not address plaintiff's argument for a new judge to hear this matter. Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(11)(E).

Affirmed.

WAGE GARNISHMENT ARTICLE - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333

 

INVESTORS BANK, f/k/a GLOUCESTER COUNTY FEDERAL SAVINGS BANK, Plaintiff-Respondent,
v.
TRAVELERS CABLE TV, INC., a/k/a TRAVELERS CABLE COMM., INC., TRAVELERS UTILITY SUPPLY, INC., TRAVELERS CABLE & UTILITIES, TRAVELERS CONSTRUCTION, TRAVELERS UTILITY SUPPLY, INC., TRAVELERS CABLE AND UTILITIES, TRAVELERS MEETING, INC., TRAVELERS TELECOM, CORP., TRAVELERS CABLE, INC., TRAVELERS CABLE COMMUNICATIONS, CORP., TRAVELERS CONSTRUCTION, LTD., BROADSTAR COMMUNICATIONS, LLC, ACCESS PROGRAM SERVICE, INC., BROADSTAR SECURITY, LLC, MILTON BELL, RUSSELL BELL, DERRICK BELL, and REBECCA E. BELL, GUARANTOR, Defendants, and
TYLER BELL, GUARANTOR, Defendant-Appellant.

Docket No. A-2496-15T2.

Superior Court of New Jersey, Appellate Division.

Submitted April 25, 2017.Decided May 5, 2017.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1283-03.

Jardim, Meisner & Susser, P.C., attorneys for appellant (Anthony Bedwell, of counsel and on the brief; Brian Baum, on the brief).

Saldutti Law Group, attorneys for respondent (Robert T. Lieber, Jr., of counsel and on the brief).

Before Judges Koblitz and Mayer.

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.

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PER CURIAM.

Defendant Tyler Bell appeals from two orders entered by the trial court. On February 10, 2015, the trial court entered judgment jointly and severally against various defendants, including Bell, for approximately $1.8 million. Bell was a personal guarantor of a promissory note issued by plaintiff Investors Bank (Bank) to defendants. In seeking to collect on the judgment, the Bank filed a motion for payment out of income directed to Bell. On December 10, 2015, the trial court ordered Bell to pay out of income the sum of $1,355.80 monthly to satisfy the judgment. On February 5, 2016, the trial court denied Bell's motion for reconsideration. Bell appealed the trial court's orders dated December 10, 2015 and February 5, 2016.

On appeal, Bell argues the trial court lacked jurisdiction to enter the order requiring payment out of income because Bell was a resident of the State of Florida and lacked any contact, assets or property in New Jersey. Bell also argues the payment out of income motion was contrary to Florida law. We disagree and affirm both orders.

In presenting arguments to the trial court, both Bell and the Bank relied upon Mechanics Finance Co. v. Austin, 8 N.J. 577 (1952). In Mechanics Finance, our Supreme Court rejected the very same arguments made by Bell. The Court expressly found that a foreign corporate employer authorized to transact business in New Jersey was subject to a wage garnishment by a judgment creditor against a judgment debtor. The Court held:

[T]here [was] no discernible reason of principle or policy why a foreign corporation whose right to do business in New Jersey is conditioned upon submission to the State's judicial process should not be subject to notice that, in accordance with the statute, moneys in its possession owing to the judgment debtor have been appropriated by judicial decree to the satisfaction of the judgment and as well to an order of compliance. . . . Although the employer here is not a citizen of or domiciled in New Jersey, there is residency in the State sufficient to subject it to the statutory process thus invoked. It is subject to the State's judicial power. A foreign corporation is amenable to the jurisdiction of the New Jersey courts in garnishment if it could itself be sued by its creditor in this State.

[Id. at 581.]

The Bank presented evidence that Bell's employer was registered in the State of New Jersey. Bell claimed his employer, National Cable and Internet, LLC, was registered in the State of Florida and was a separate corporate entity from National Cable and Internet, Limited Liability Company, a New Jersey limited liability company.

Consequently, prior to ruling on the Bank's motion to compel payment out of income, the trial court required the parties to depose Howard Bernstein, the chief financial officer of National Cable and Internet, LLC. He had submitted a certification in opposition to the Bank's motion to compel payments out of income. The trial court opined that if National Cable and Internet, LLC was not registered in New Jersey and conducted no business in New Jersey, then the court would lack jurisdiction under the holding in Mechanics Finance. Therefore, the trial court adjourned disposition of the Bank's motion to compel payment out of income until the completion of Bernstein's deposition.

After reviewing supplemental submissions filed by the parties, including Bernstein's deposition testimony, the trial court found Bell's arguments in opposition to the Bank's motion lacked merit. The trial court concluded that National Cable and Internet, Limited Liability Company, a New Jersey entity, was an alter ego of National Cable and Internet, LLC, a Florida entity. The trial court found:

The similarities are just crystal clear in that they overlap. The names are the same, except for the spelling out of the LLC. The — you know, the officer or the formation officer, is Bernstein, who is also the CEO in the Florida organization. The members, managers, National Cable and Internet, LLC, 3965 Investment Lane, A-5, West Palm Beach, Florida. 33404 is the zip code. That's the address of the LLC in Florida. Same for the main business address. You know, they clearly are in New Jersey, formed in New Jersey. There is an extension of that Florida Limited Liability Company in New Jersey. It's not disputed that they, after forming this, updated, paid their annual fees, kept alive. They are authorized, registered to do business in the State of New Jersey . . . it's the same players, it's the same organization.

Consequently, the trial court held National Cable and Internet, Limited Liability Company was an alter ego of National Cable and Internet, LLC and therefore ordered Bell to make monthly payments out of income to the Bank.

Bell filed a motion for reconsideration from the order compelling payment out of income. He argued that despite the trial court finding jurisdiction over Bell's employer, National Cable and Internet, LLC, the trial court lacked jurisdiction over Bell personally.

In response to the reconsideration motion, the Bank argued that by signing the personal guaranty, Bell waived any jurisdictional objections. The personal guaranty signed by Bell provided

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:

If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Gloucester County, State of New Jersey. . . . This Guaranty shall be governed by and construed in accordance with the laws of the State of New Jersey.

Based upon Bell's waiver of jurisdiction by signing the personal guaranty, the trial court held that Bell's consent to jurisdiction extended not only to the collection lawsuit but also to post-judgment collection applications as well. Defendant's counsel was unable to cite any case establishing that waiver of jurisdiction in a personal guaranty was limited to collection litigation and not applicable to post-judgment collection applications. The trial court denied Bell's reconsideration motion finding no new facts or evidence submitted in support of the motion and that Bell failed to demonstrate the trial court acted in an arbitrary, capricious or unreasonable manner.

Given the equitable nature of the remedy created by the trial court in this case, the standard of appellate review is abuse of discretion. See Sears Mortg. Corp. v. Rose, 134 N.J. 326, 354 (1993) (finding the trial court did not abuse its discretion in balancing the equities when formulating a remedy). Similarly, appellate review of a trial court's decision on a motion for reconsideration is the same abuse of discretion standard. See Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Applying this standard to the orders on appeal, we find no abuse of discretion.

The trial court found jurisdiction over Bell as well as Bell's employer. The trial court properly determined National Cable and Internet, LLC was doing business in New Jersey through its alter ego National Cable and Internet, Limited Liability Company. The Bank's application was a request for a wage execution directed to Bell's employer, a New Jersey company. Because Bell's employer was a New Jersey company, the trial court had jurisdiction to enter the order requiring payment from Bell's wages. The trial court also properly concluded it had jurisdiction over Bell personally based upon the waiver of jurisdiction provision in the personal guaranty executed by Bell.

Affirmed.

WAGE GARNISHMENT ARTICLE - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333

 

GARDEN STATE ANESTHESIA — RARITAN BAY, Plaintiff,
v.
Ketty SIBILLY, Defendant.

DOCKET No. DC-003294-11.
Superior Court of New Jersey, Law Division, Mercer County. Special Civil Part.

Decided: July 27, 2017.

131Raymond Meisenbacher, Bridgewater, attorney for plaintiff (Raymond Meisenbacher and Sons, PC, attorneys).

Ketty Sibilly, defendant, pro se.

ANKLOWITZ, J.S.C.

The legal issue here is whether child support is exempt from levy, attachment and execution on a money judgment against a parent.

Plaintiff filed a complaint for an unpaid medical bill on April 7, 2011. Judgment was entered by default on June 7, 2017, in the amount of $1871.64 plus costs and statutory attorney's fees. N.J.S.A. 22A:2-42. On April 14, 2017, a Writ of Execution Against Goods and Chattels was issued. The Writ gave credit for payments made and showed a total balance due in the amount of $1,653.38.

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On June 9, 2017, a court officer levied on an account of defendant at JP Morgan Chase. The court officer gave notice of the levy by affidavit. Plaintiff filed a motion for turnover of funds on June 27, 2017. On June 30, 2017, defendant filed an objection to the levy. The parties are thus joined in opposition to each other's positions.

On July 27, 2017, defendant testified that her supporting documents were sent to plaintiff's counsel on July 20, 2017. Notice was given to plaintiffs counsel of the hearing, and plaintiff waived its appearance as is permitted under Rule 4:59-1(e).

No statute expressly covers child support as a basis for an objection to a levy, but an analysis of the relevant law warrants a conclusion that child support cannot be the subject of a levy from an ordinary money judgment against a parent.

The law on enforcing judgments makes only a judgment debtor liable. N.J.S.A. 2A:17-15, 16, 17, and 18. Unless there is some exception, like an amercement action, N.J.S.A. 2A:18-29 and N.J.S.A. 40A:9-109, or an action against an employer that refuses to implement a wage garnishment, N.J.S.A. 2A:17-64, the judgment can only be enforced against the judgment debtor and not the debtor's children, friends or others.

"The right to child support belongs to the child and cannot be waived by the custodial parent." Pascale v. Pascale, 140 N.J. 583, 591, 660 A.2d 485 (1995) (internal citations omitted). If a parent receives child support for his or her child the money belongs to the child and cannot be used to satisfy a judgment against the parent. Courts have traditionally taken a parens patriae role in protecting the best interest of the child on issues of child support. Faherty v. Faherty, 97 N.J. 99, 110, 477 A.2d 1257 (1984).

The Legislature has expressed the intent to enforce child support orders. For 132example, wage garnishments served on an employer for child support take super priority over money judgments. N.J.S.A. 2A:17-52. In addition, N.J.S.A. 2A:17-56.8 provides a host of enforcement mechanisms for child support.

Parents are entitled to the "services and earnings" of their children. N.J.S.A. 9:1-1. Child support is typically paid by the other parent from the other parent's services and earnings. In this case the child support order shows the calculation of child support was based on each parent's earnings.

When an adult parent enters into a contract, the contract is ordinarily enforceable like any other contract entered into by an adult. Allgor v. Travelers Ins. Co., 280 N.J. Super. 254, 262, 654 A.2d 1375 (App. Div. 1995). A contract entered into by a minor is not ordinarily enforceable because a minor can disaffirm the contract. Ibid. However, a minor that enters into a contract for student loans and financial aid is considered to be subject to a binding contract. N.J.S.A. 9:17A-2.

Money owed to someone else, including by a parent, cannot be pursued against an innocent owner, including a child. Unless there is some way to show that a child is liable on a debt, which is a covered type of expense for which the judgment or order for child support is meant, that money is not subject to levy because there is already an order or judgment directing the use of that money for the benefit of the child.

Notably, the I.R.S. does not levy on money due and owing for child support. 26 U.S.C. § 6334 lists a number of exemptions from levy for taxes. Subsection (a)(8) exempts:

Judgments for support of minor children. If the taxpayer is required by judgment of a court of competent jurisdiction, entered prior to the date of levy, to contribute to the support of his minor children, so much of his salary, wages, or other income as is necessary to comply with such judgment.

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Defendant advised that the levy was on a checking account and a savings account. Two transfers from checking to savings totaled $825, and the two transfers were made within a few days of the payment of child support reflected on the probation departments child support account statement. The two child support payments were $515.67 each. Defendant testified that the transferred money was child support money. The remainder of the money in the savings account was either interest or from an unknown source. Whether child support money should or should not be traced was not a contested issue before the court. That issue is left for another day.

At the time of the levy on the checking account on June 9, 2017, the last three deposits were from payroll and other sources not claimed to be exempt from levy. Those amounts more than covered the amount of the levy several times over. Defendant expressly denied having a wage garnishment on her wages deposited into the checking account.

In addition to the strong policy support that child support is for the benefit of the child, child support money is exempt from levy because the child is an innocent third party and not a judgment debtor. The $825 in the savings account is child support that is exempt from the levy and must be released. The remainder of the money is subject to levy and the motion to turnover is granted as to $302.62.

The objection to levy is granted in part and denied in part. The motion to turnover is granted in part and denied in part.

WAGE GARNISHMENT ARTICLE - BANKRUPTCY ATTORNEY IN NEW JERSEY (201) 646-3333

 

LAMAR ENTERPRISES, LLC, Plaintiff-Respondent,
v.
SES PROPERTIES, LLC and WILLIAM SPENCER, t/a SMOOTHIE FACTORY, Defendants-Appellants.No. A-4976-11T4.
Superior Court of New Jersey, Appellate Division.

Submitted March 19, 2013.Decided April 30, 2013.

Ryan A. Dornish, attorney for appellants.

Clifford J. Weininger, attorney for respondent.

Before Judges Alvarez, Waugh and St. John.

NOT FOR PUBLICATION

PER CURIAM.

On July 22, 2011, plaintiff Lamar Enterprises, LLC, obtained a judgment by default in the amount of $108,804.51 against its former tenant SES Properties, LLC, and William Spencer, trading as Smoothie Factory. The judgment was docketed on August 17, 2011, and a writ of execution issued October 20, against Spencer. Defendants filed a motion objecting to the garnishment, seeking a stay of execution, and a hearing to address the amount of the judgment. The court denied the application and the subsequent motion for reconsideration. We affirm for the reasons stated by Judge Robert J. Brennan in his well-reasoned analysis rendered from the bench. We add the following very brief comments.

Spencer, in addition to his wages, operates two businesses and owns a commercial building. He nets $4068.96 per month (calculated on 4.3 weeks each month) from his salary at a full-time job. Pursuant to the terms of his divorce, he pays limited duration alimony, child support, and equitable distribution in the amount of $3947.66 monthly. He is current on that obligation. It is not paid by garnishment, or even through the probation department.

At the beginning of oral argument on the motion, defendants' attorney advised the court that Spencer was available by phone to testify. Judge Brennan declined the offer pursuant to Rule 1:6-2, which requires facts not of record, or cognizable by judicial notice, to be submitted on motions in affidavits or certifications.

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On reconsideration, defendants argued that the court erred by refusing to allow Spencer to participate via telephone. Defendants raise the same arguments on appeal as they did before the trial court. They are:

POINT 1

PLAINTIFF HAS FAILED TO MITIGATE DAMAGES SO THE WAGE EXECUTION SHOULD BE DISMISSED

POINT 2

DEFENDANTS CANNOT AFFORD THE WAGE EXECUTION AND THEREFORE IT SHOULD BE MODIFIED AND/OR DISMISSED

POINT 3

A PERSON CANNOT BE SUBJECT TO MORE THAN ONE WAGE GARNISHMENT AT A TIME. N.J.S.A. 2A:17-52(a)

POINT 4

THE JUDGE ERRED IN MAKING FACTUAL AND LEGAL FINDINGS

Judge Brennan correctly noted that defendants could not, post-judgment, directly attack the merits of the judgment. Defendants had an opportunity to file an answer, or take an appeal, and did neither. Having failed to avail themselves of those options, they did not even file a motion to set aside the judgment pursuant to Rule 4:50-1. The court therefore correctly refused to entertain the argument.

The trial judge also observed that Spencer's asserted inability to afford the amount of the wage execution was not clearly established. Mathematically, it is reasonable to conclude that Spencer has other substantial income from which he is maintaining his divorce obligations. Spencer operates a septic pump business, a snow removal business, and owns a commercial building, in addition to holding down a job. Furthermore, the wage deductions from his employment were not proven to be involuntary in nature. His pay stub included deductions totaling $903.14 for health contributions, pension, loans, dues, and credit union. Therefore, Spencer's proofs simply failed to demonstrate any inequity in the wage garnishment.

Judge Brennan did not credit Spencer's argument that he was being subjected to a "de facto" second wage garnishment because of his matrimonial obligations. That argument is so lacking in merit as to warrant no further discussion in a written opinion. R. 2:11-3(e)(1).

Finally, we find no error in the judge's rejection of Spencer's motion for reconsideration, premised on the notion he should have been allowed to testify telephonically with regard to his pay and income. As the judge pointed out, on motions, Rule 1:6-2 does not permit facts to be established other than through an affidavit or certification. Hence the judge did not err in declining to allow Spencer's telephonic participation to answer questions that might arise during the hearing.

"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In this instance, the trial court's reasoned conclusion, in our view, correctly applied the law to established facts. Motions for reconsideration will be granted only where the court has failed to consider evidence, has rendered a decision based on plainly incorrect reasoning, or failed to correctly apply the law. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). The court in this case considered the evidence, analyzed the matter fairly, and correctly applied the law.

Affirmed.

WAGE GARNISHMENT ARTICLE - BANKRUPTCY ATTORNEY IN BERGEN COUNTY NJ (201) 646-3333

 

K.L., Plaintiff-Appellant,
v.
L.L., Defendant-Respondent.No. A-1252-18T1.Superior Court of New Jersey, Appellate Division.

Submitted December 3, 2019.Decided January 23, 2020.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0459-16.

David Thornton Garnes, attorney for appellant.

L.L., respondent pro se.

Before Judges Gilson and Rose.

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.

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PER CURIAM.

In this post-divorce-judgment matter, plaintiff, the father, appeals from an October 5, 2018 order that granted various relief, primarily concerning the health insurance and expenses of the parties' children. Plaintiff has identified no facts or law that warrant our intervention. Accordingly, we affirm.^[1]

The parties were married in 2000 and divorced in 2015. They have three children, including a daughter who is a diabetic. Plaintiff has failed to provide us with a complete record. The limited record reflects that the parties have filed other post-judgment motions. Some of the orders on those prior motions are relevant to issues plaintiff seeks to raise, but he did not provide us with those orders.

We can discern that in 2018, defendant, the mother, filed a motion to require plaintiff to (1) reimburse her for his share of medical expenses; (2) drop the children from his medical insurance so that the children would be covered by her insurance; and (3) pay for future medical supplies. Plaintiff cross-moved to (1) modify an April 20, 2018 order; (2) allow him to pay child support directly rather than through wage garnishment; (3) have the parties share equally the expense of medical supplies and insulin; and (4) be awarded attorney's fees.^[2]

On October 5, 2018, the family court heard arguments on the motion and cross-motion, explained the reasons for its rulings, and entered an order. Relevant to this appeal, the court (1) granted defendant's request that she provide medical insurance coverage for the children and that plaintiff drop the children from his coverage; (2) ordered plaintiff to reimburse defendant for past and future medical expenses in the amount of seventy-three percent of those expenses; (3) denied plaintiff's request to end wage garnishment; (4) denied plaintiff's request for attorney's fees; and (5) ordered plaintiff to comply with a prior order entered in a then pending Title 9 matter.

On appeal, plaintiff contends that the family court erred or abused its discretion in (1) ordering him to cease medical insurance coverage for the children; (2) ordering him to reimburse plaintiff for past medical expenses; (3) ordering him to reimburse plaintiff for future medical expenses in the amount of seventy-three percent of those expenses; (4) ordering him to continue to pay child support through wage garnishment; (5) denying his request for attorney's fees; and (6) ordering him to comply with a prior order entered in the Title 9 matter.

Having reviewed plaintiff's contentions in light of the record and law, we find that none of his arguments has sufficient merit to warrant a detailed discussion in a written opinion. See R. 2:11-3(e)(1)(E). Thus, we make only brief comments on the arguments.

The record establishes that the family court considered the relevant issues and adequately explained the reasons for each of its rulings. Plaintiff cites to Caplan v. Caplan, 182 N.J. 250, 265 (2005), arguing that the family court failed to consider the parties' income when making determinations regarding reimbursement and child support. The record, however, shows that the family court considered the parties' respective incomes when making its decisions. Moreover, plaintiff has pointed to no facts that the court did not consider; instead, plaintiff simply disagrees with the factual findings made by the family court.

In summary, the family court pointed out that (1) in a prior order, it had allowed plaintiff to continue medical insurance coverage for the children, but he had failed to pay the medical expenses; (2) the final judgment of divorce and a prior order provided that the parties were to share medical expenses with plaintiff paying seventy-three percent and defendant paying twenty-seven percent; (3) plaintiff failed to show any change of circumstances warranting modification of those prior orders; (4) plaintiff was in arrears on child support and, therefore, wage garnishment was appropriate; (5) plaintiff made no showing supporting an award of attorney's fees; and (6) plaintiff had not filed a motion for reconsideration of the order in the Title 9 matter and presented no facts or law to support his request to disregard that order. We discern no error or abuse of discretion in any of those rulings.

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Affirmed.

[1] To protect privacy interests, we use the parties' initials in the caption and refer to them as plaintiff and defendant in the opinion.

[2] Plaintiff also moved to deny defendant's motion, but that is not a cross-motion; rather, it is opposition to defendant's motion.

WAGE GARNISHMENT ARTICLE - BANKRUPTCY LAWYER IN NJ (201) 646-3333

 

WAGE GARNISHMENT ARTICLE

MICHAEL BANDLER, Plaintiff-Appellant,
v.
KARING WITH KINDNESS, INC. and KATHLEEN KENNY, Defendants-Respondents.Docket No. A-0335-15T1.Superior Court of New Jersey, Appellate Division.

Argued December 6, 2016.Decided December 29, 2016.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1770-14.

Michael Bandler, appellant, argued the cause pro se.

Francis J. Ballak argued the cause for respondents (Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, P.A., attorneys; Mr. Ballak and Elliott J. Almanza, on the brief.)

Before Judges Fisher and Ostrer.

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.

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PER CURIAM.

In an earlier suit in 2012, plaintiff Michael Bandler obtained a default judgment against Evelyn Melillo for $54,159.13; plaintiff later secured an order, entered in that action on October 21, 2012, that directed "execution issue against the earnings of [Melillo] from [her] employer," Karing With Kindness, Inc. That order was served on Karing With Kindness, Inc.: by plaintiff's then attorney in October 2012; by a private process server in April 2013; and by plaintiff by email in May 2013. The employer withheld nothing from Melillo's wages.

In May 2014, plaintiff commenced this action against Karing With Kindness, Inc., and its principal, defendant Kathleen Kenny (collectively, defendants), seeking damages based on their failure to withhold a portion of Melillo's wages pursuant to the terms of the October 21, 2012 order.^[1]

Defendants moved for summary judgment based on their contention that plaintiff failed to comply with the proper procedures for obtaining a wage garnishment; specifically, defendants argued that plaintiff failed to comply with N.J.S.A. 2A:17-51^[2] and applicable court rules^[3] by failing to have the sheriff serve defendants with the process necessary to generate a wage garnishment.

In granting summary judgment, the motion judge agreed with defendants and held that plaintiff failed to demonstrate that the October 21, 2012 wage execution order was ever delivered to a sheriff or other qualifying court officer, that a writ of execution was ever issued, or that a writ of execution was served upon defendants by a sheriff or other qualifying court officer.

In appealing, plaintiff argues that defendants "failed to meet their initial summary judgment burden" and that he "raised issues of material facts." We find insufficient merit in plaintiff's arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

For good reason, the acceptable practice — made mandatory by the statute and court rules cited above — is for the sheriff to serve an employer with all appropriate pleadings in order for a judgment creditor to obtain the garnishment of wages owed to a judgment debtor. There is no dispute that, by failing to include the sheriff in his efforts, plaintiff failed to take the appropriate steps; it is irrelevant that plaintiff or his agents may have served the employer with the October 21, 2012 court order or that the employer or its agents — defendants here — had actual knowledge of the order.

We lastly observe that plaintiff would have us view the matter narrowly. His argument is that the only question raised by way of defendants' summary judgment motion — and, therefore, in his view, the only question that should have been decided by the motion judge — was whether the wage garnishment order was served on defendants. He argues that the trial judge should not have decided whether a writ of execution issued and was served by the sheriff. We disagree. The record reveals that, even if defendants' motion papers should be viewed as so limited, the motion judge provided plaintiffs with a full and fair opportunity to demonstrate a writ of execution was issued to and served by the sheriff.^[4] When plaintiff failed to come forward on the adjourned return date with evidence to support such a requirement, the motion judge properly granted summary judgment.

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Affirmed.

[1] In another action, plaintiff unsuccessfully sought relief from Melillo's ex-husband based on his alleged failure to provide information about Melillo's assets. Bandler v. Melillo, 443 N.J. Super. 203, 206 (App. Div. 2015).

[2] This statute describes the wage-garnishment process and declares that levy does not occur unless and until a writ of execution is served upon the employer by the sheriff or other officer.

[3] Rule 4:4-3(b) provides that "[u]nless the court otherwise orders, all writs and process to enforce a judgment or order shall be served by the sheriff." And Rule 4:59-1(a) and (e) require that writs of execution be directed to the sheriff, who shall be the sole party responsible for levying on the judgment debtor's property.

[4] Oral argument on the motion was first heard on April 27, 2015. The judge continued the matter until June 26, 2015, so as to provide plaintiff an opportunity to demonstrate a writ of execution had issued. The matter was again adjourned to August 21, 2015; at that time, without evidence a writ of execution issued or was served by the sheriff, the motion judge granted summary judgment.