Bednarsh v. Bednarsh

• Citation: 282 N.J.Super. 482,660 A.2d 575
• Parties: David BEDNARSH, Plaintiff, v. Charlotte BEDNARSH, Defendant.
• Decision Date: 09 March 1995
• Court: Superior Court of New Jersey

Page 482

282 N.J.Super. 482

660 A.2d 575

David BEDNARSH, Plaintiff, v. Charlotte BEDNARSH, Defendant.

Superior Court of New Jersey, Chancery Division,

Family Part, Monmouth County.

Decided March 9, 1995.

Victor A. Deutch, Woodbridge, for plaintiff (Deutch, Shur & Falk, attorneys)

Jules S. Littman, Edison, for defendant.

OPINION

FISHER, J.S.C.

I INTRODUCTION

The courts of the Family Part are often immersed in controversies over orders entered by the courts of other states. Congress recently sought to bring order to such interstate conflicts by enacting the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B. The parties to this case debate the application of this new federal law to an order recently entered by this court and another entered in Florida a year earlier.

Before the court is the motion of plaintiff David Bednarsh (plaintiff) for reconsideration of the court's order of December 6, 1994, and the motion of defendant Charlotte Bednarsh (defendant) for enforcement of that order, including the issuance of a bench warrant. At the heart of the matter is an order that was entered by the Florida Circuit Court (Sarasota County, Civil Division) on December 10, 1993 (the Florida order). Inexplicably, the Florida order was not part of the voluminous materials provided by the parties prior to the entry of the December 6, 1994 order.

The Florida order was entered upon the agreement of the parties. ¹ The parties stipulated that plaintiff owed defendant $18,000 in child support that had accumulated as of December 10, 1993. Plaintiff was ordered to pay $6,000 immediately and $250 per month against the balance of $12,000. The Florida court reserved jurisdiction "to enforce and/or modify" the order's terms.

Without knowledge of the Florida order, this court entered an order which paved the way for the payment of child support arrearages in excess of what the Florida court ordered. ² Plaintiff now moves for reconsideration, and defendant seeks enforcement of the December 6 order.

II THE MOTION FOR RECONSIDERATION

A. Timeliness

Defendant argues that the motion for reconsideration was tardily filed. The motion was filed more than ten days after the order was entered but that fact is generally irrelevant since the December 6 order was interlocutory. The order may be revisited any time prior to the entry of a final order. See R. 4:42-2 ("[An interlocutory order] shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice...."); Johnson v. Cyklop Strapping Co., 220 N.J.Super. 250, 264, 531 A.2d 1078 (App.Div.1987). Certainly, the ultimate goal of substantial justice would not be served by this court's refusal to review the December 6 order now that the Florida order has surfaced.

B. Full Faith and Credit

The second prefatory issue that arose concerns the weight and influence to be given to the Florida order. Neither party mentioned the impact of the Full Faith and Credit for Child Support Orders Act (the Act), 28 U.S.C. § 1738B (enacted on October 20, 1994), until recently raised by the court. The Act expressly mandates the extent to which a state court should give deference to a child support order entered by a court of another state.

The Act compels a state court to "enforce according to its terms a child support order made consistently with this section by a court of another State" and forbids a state court from "seek[ing] or mak[ing] a modification of such an order except in accordance with [subsection (e) of the Act]." 28 U.S.C. § 1738B(a).

The Act is implicated by the present situation. Defendant is certainly correct that the Florida order merely resulted from defendant's attempts to enforce an earlier judgment entered by this court. Nevertheless, the Florida order involves "child support" ³ and constitutes a "child support order." ⁴ It is also indisputable that the Florida court had jurisdiction over the subject matter and the parties.

The multi-faceted purposes of the Act include the intent of Congress:

(1) to facilitate the enforcement of child support orders among the States;

(2) to discourage continuing interstate controversies over child support in the interest of greater financial stability and secure family relationships for the child; and

(3) to avoid jurisdictional competition and conflict among State courts in the establishment of child support orders.

So long as the Florida order was "made consistently" with the Act, the Florida court retained "continuing, exclusive jurisdiction ... unless the court of another State" modifies it in accordance with subsection (e); if the order cannot be modified pursuant to subsection (e), another state court's sole obligation is to enforce the order so as to effectuate the purposes of the Act. To avoid "jurisdictional competition and conflict" ⁵ a court may only modify another state's child support order if the modification occurs in accordance with subsection (e) of the Act.

Subsection (e) ⁶ of the Act permits a modification of the Florida order only if two conditions are met. This court must, first, possess jurisdiction to enter a child support order. This court clearly does; defendant and the minor children are residents of New Jersey.

Second, one of two other conditions must be met. The first is met if Florida is no longer "the child's State or the residence of any contestant." Not so here; plaintiff resides in Florida. Thus the Florida order may be modified by this court only if the second condition is met: if "each contestant has filed written consent to the court's making the modification and assuming continuing, exclusive jurisdiction over the order." That is, since this court does have jurisdiction and Florida has not lost "continuing, exclusive jurisdiction," the order may not be modified unless the parties filed their "written consent" to modification.

As noted above, without knowledge of the Florida order, this court entered an order which, in part, clearly modified the Florida order. But, the Florida order has now stepped to the forefront and gives rise to two novel questions regarding the application of the Act: (1) do the circumstances by which this matter came to the court give rise to a conclusion that the parties filed their "written consent" to this court's modification of the Florida order?; and (2) do the circumstances surrounding the Florida order negate a finding that the Florida order was "made consistently" with the Act? Both questions are problematic since they require an examination into areas of the Act that appear, on first blush, to have gone unexplored by Congress.

1. Did the Parties Consent to this Court's Modification?

Leading up to the December 6, 1993 order neither party mentioned 28 U.S.C. § 1738B or the Florida order. The Act requires the filing of the parties' "written consent" prior to the latter court's modification of a child support order. The perplexing question that confronts the court is whether the absence of any mention of the Florida order in the prior moving, opposing and reply papers of these parties can be equated with their "written consent" to this court's exercise of exclusive, continuing jurisdiction over the issues referred to in the Florida order.

Resort to the express terms of the Act provides little guidance. Congress did not define what it meant by "written consent." Certainly consent cannot be given orally; but can it be given by a written submission which fails to refer to the child support order under circumstances which would appear to warrant its mention? Reams of paper went into the parties' earlier submissions and yet neither party mentioned the Florida order (although plaintiff referred, with little description, to an earlier agreement ⁷). The failure of both parties to mention previously the Florida order is inexcusable. But their mutual fault, despite all the familiar maxims about equity aiding the vigilant, should not lead to the disregarding of the Florida order. The Florida order's presence gives rise to jurisdictional problems which cannot be glossed over by the parties' lack of diligence or candor in presenting the procedural history to this court.

In this court's view, consent to a subsequent court's modification of another state's child support order should be found only upon a clear showing that the parties knowingly and voluntarily desired that result. Such an approach is consistent with the traditional common law caution as to the finding of a waiver of a right or a claim, see, e.g., Raroha v. Earle Finance Corp., 47 N.J. 229, 233, 220 A.2d 107 (1966), particularly in a domestic relations setting. See, e.g., Peskin v. Peskin, 271 N.J.Super. 261, 638 A.2d 849 (App.Div.1994). Such caution is acutely required in light of the concern of Congress that the pre-Act environment led to "excessive relitigation of cases and to the establishment of conflicting orders by the courts of various jurisdictions, resulting in confusion, waste of judicial resources, disrespect for the courts, and a diminution of public confidence in the rule of law." Courts should view the "written consent" requirement strictly in order to insure that the problems recognized by Congress do not resurface.

Here, the only arguable basis for a finding of "written consent" lies with the fact that neither party disclosed to this court the existence of the Florida order. Silence has historically been equated with acquiescence. ⁸ Should plaintiff's failure to speak of the Florida order, in the face of defendant's motion seeking arrearages in excess of what is contained in the Florida order, be equated with consent to the court's consideration of the issues notwithstanding the Florida order? After all, under those circumstances, one would expect to hear about the Florida order sooner than on the filing of a motion for reconsideration. Nevertheless, this court believes that the goals of the Act would not be served...