KOZIKOWSKA v. WYKOWSKI

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Defendant Wieslaw Wykowski appeals from the Family Part's order that he owes $345,758 to plaintiff Grazyna Kozikowska consisting of arrears for palimony payments, attorney's fees, and child support payments. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

The extensive factual background and procedural history in this dispute is detailed in our September 26, 2012 fifty-seven-page unpublished opinion1, where we affirmed the trial court's order awarding plaintiff a net judgment in the amount of $240,633, representing a lump sum palimony payment, child support, distribution of assets, including possession of a multi-family dwelling (rental property), and attorney's fees. Kozikowska v. Wykowski, No. A-5466-09 (App. Div. Sep. 26, 2012) (slip op. at 10-11).

In August 2014, defendant filed a motion seeking: his daughter's emancipation retroactive to her June 1, 2014 college graduation; an adjustment of his child support from the date of his son's earlier emancipation on June 1, 2012, to his daughter's emancipation; an audit of his child support and supplemental obligation through probation; termination of supplemental support retroactive to the date the court transferred the rental property to plaintiff; and reduction of supplemental support arrears accumulated after transfer of rental property. Defendant also sought an ability to pay hearing for the child support arrearage.

Judge Maureen Sogluizzo, who presided over the palimony trial and subsequent proceedings, issued an order and set forth her reasons in an oral decision on September 19, 2014. She granted the daughter's emancipation retroactive to June 1, 2014 and provided defendant a $4320 credit2 for the daughter's child support that was assessed since June 1. The judge also gave defendant a $93,400 credit3 for supplemental palimony support that should have ceased upon conveyance of the rental property to plaintiff. Thus, defendant's arrears for child support and palimony support were reduced from $163,445 to $66,725.10. In addition, the prior attorney's fees award of $87,700, and an additional $750 in attorney's fees were awarded to plaintiff for responding to the motion,4 resulting in a total arrears of $155,175.10. Lastly, the judge found that defendant continued to owe $190,633 in arrears for palimony payments.

Judge Sogluizzo ordered a payment of $150 per week, or the maximum amount that could be withheld from defendant's social security income, through probation. She rejected defendant's contention that the arrears payments related to a palimony dispute should not go through probation. The judge recognized that pursuant to Rule 5:1-2, palimony actions are cognizable in the Family Part, and that "[p]robation is to collect monies that are cognizable in a Family Part action." Further, the judge reasoned that although the supplemental support and attorney's fees are for a palimony action, they are related to a family-type action akin to that which is allowed for domestic partnerships, another, but legally indistinguishable form of familial relationship.

Judge Sogluizzo denied defendant's request to recalculate child support between the respective emancipation dates of his children, as well as his request for an ability to pay hearing, on the basis that defendant failed to provide proof of his income. The judge did not believe defendant's claim that his only source of income was social security benefits. Recalling her previous ruling that defendant had allegedly possessed and hidden $334,000, the judge noted that in his certification in support of his motion "he doesn't absolutely deny [the existence of the money] anymore but makes kind of, a roundabout discussion about the fact, well yeah it could have been there, very possibly could have been there and well if it was, I used it to live on."5 The judge also noted that throughout the extensive litigation in the matter, defendant had retained as many as eight private counsel, which she determined were not all hired with assistance from family or friends. Thus, the judge rejected defendant's plea of "poverty." Defendant subsequently filed a motion for reconsideration. Citing Rule 4:49-2, the judge denied the motion on the grounds that "[d]efendant fail[ed] to raise any statements of the matters or controlling decisions the court has overlooked or to which it has erred when the Order was entered."

This appeal followed.

II.

We distill defendant's arguments on appeal to three issues. First, he contends that the trial judge committed procedural errors by not conducting an ability to pay hearing and a plenary hearing. Second, defendant contends that the judge's decision was arbitrary and not supported by sufficient facts. Third, defendant argues that the attorney's fees award of $87,700 is illegal and was unfairly imposed as a sanction, and alternatively, he should not be required to pay attorney's fees through probation. We are unpersuaded by these arguments.

We discern no procedural deficiencies in the manner the motion was handled by the trial court and are satisfied that defendant had more than ample opportunity to present his requests for relief. First, defendant was not entitled to an ability to pay hearing as there was no examination of his financial wherewithal to pay his support obligations to determine if he should be incarcerated. See R. 5:25-3(c)(2); Pasqua v. Council, 186 N.J. 127, 141 n.2 (2006) (an ability to pay hearing is required before the court seeks to order coercive incarceration of the obligor due to his or her willful failure to pay child support); Judicial Council, Use of Warrants and Incarceration in the Enforcement of Child Support Orders, 1-2 (Feb. 26, 2004).

Second, there was no reason for the trial court to have conducted a plenary hearing to resolve defendant's request to modify his support. A plenary hearing must be conducted on a motion to modify support when there are genuine issues of material fact that bear on a critical question. Lepis v. Lepis, 83 N.J. 139, 159 (1980). A trial judge may not resolve material factual disputes, including credibility determinations, arising in the parties' conflicting affidavits and certifications; instead, when a genuine issue of fact is raised by the parties' respective assertions, a plenary hearing must be held. Tretola v. Tretola, 389 N.J.Super. 15, 20-21 (App. Div. 2006). Child support may be revised when the party seeking modification satisfies the burden of showing a change of financial circumstances from those defined in an existing order. See N.J.S.A. 2A:34-23; Lepis, supra, 83 N.J. at 157; Beck v. Beck, 239 N.J.Super. 183, 190 (App. Div. 1990).

Judge Sogluizzo was fully familiar with defendant's contention that he lacked the income to satisfy the support obligations based upon her prior proceedings with the parties, and thus found that defendant had undisclosed income. In fact, as noted, she believed that his certification in support of his motion and his ability to retain private counsel, belied his claim that his only source of income was social security benefits.

Turning to defendant's argument that Judge Sogluizzo's decision was arbitrary and not supported by sufficient facts, we are mindful that the scope of our review of the Family Part's orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's findings of fact based on adequate, substantial, and credible evidence in the record understanding the court's special expertise in family matters. Id. at 412-13; MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007). No special deference is accorded to the judge's legal conclusions, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995); however,

Applying these principles, we have no cause to disturb the judge's findings. Based on the record before us, she was justified in rejecting defendant's claim that his support should be adjusted absent proof of changed circumstances.

Lastly, defendant is not entitled to any relief concerning the imposition of attorney's fees. With the exception of the $750 attorney's fees awarded to plaintiff regarding the motion in dispute, the award was ordered by the court in past years to reimburse her for attorney's fees she incurred in her disputes with defendant. Accordingly, defendant cannot challenge the award at this late juncture. Moreover, the decision to award attorney's fees in a family court matter "rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J.Super. 58, 78 (App. Div. 2007), and will be disturbed "only on the `rarest occasion,' and then only because of [a] clear abuse of discretion." Strahan v. Strahan, 402 N.J.Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Defendant has not shown that the court abused its discretion in awarding attorney's fees to plaintiff.

As for the contention that payment of attorney's fees should not be required to go through probation, we agree with Judge Sogluizzo's reasoning that it is consistent with probation's responsibilities to collect attorney's fees as a component of the support defendant was ordered to pay plaintiff due to their familial relationship akin to a matrimonial, or child support matter. See Acting Admin. Dir. of the Courts Memorandum, "Guidance on Child Support Orders Monitored by

Probation," (June 22, 2015).

Affirmed.