Sunday, January 06, 2013

Can you be penalized for violating a child support order in New Jersey?

In an unpublished October 2012 New Jersey post-divorce case, Albinson v. Marra, 2012 WL4855818, Father appealed three orders issued on October 7, 2011, and November 3 and 29, 2011, that found him in violation of a child support order for failing to maintain life insurance for the parties’ unemancipated son. In New Jersey, an unpublished decision may not be cited for precedential value but still gives guidance to practitioners. The orders also imposed various sanctions against Father. In October 2011, the trial judge restrained Father from selling or otherwise transferring his home until he showed compliance with the court orders. In November 2011, the trial judge invoked her equitable powers and imposed a sanction of $10,000.00 and amended the Judgement of Divorce to permit Mother to claim the parties’ minor child as a tax exemption each year until he was emancipated. On appeal, Father argued that the judge abused her discretion by imposing sanctions and preventing him from claiming the child on his tax return.

In New Jersey, Family Part judges may, upon a finding that a party has violated a child support order, grant any of the following remedies under Rule 5:3-7(b): 
(1) fix the amount of arrearages and enter a judgment upon which interest accrues; 
(2) require payment of arrearages on a periodic basis; 
(3) suspension of an occupational license; 
(4) economic sanctions; 
(5) participation by the party in violation of the order in an approved community service program; 
(6) incarceration; 
(7) issuance of a warrant to be executed if further violation of the judgment or order; and 
(8) any other appropriate equitable remedy. 
The trial court stated that, since 2004, Father was given numerous opportunities to obtain and maintain the insurance policy, to reinstate it, and to provide documentation that he was in compliance with court orders.

The trial judge explained that the purpose of a life insurance policy was to make sure that there is money to pay for the child support and to raise the child in event of the death of the parent who was required to pay child support. Therefore, the appellate court found there was no abuse of discretion by the trial judge, because she applied an appropriate economic sanction upon Father to coerce him to comply with prior orders.

A judge can employ coercive, but not punitive, economic sanctions. In this case, Father had consistently failed to comply with court orders regarding child support since 2004, and the judge calculated that Father would owe in excess of $100,000.00 if she imposed a $100.00 per day sanction. The judge then imposed a sanction of only $10,000.00. The appellate court found that this sanction provided the correct amount of coercion to motivate Father to comply with court orders, but was not punitive or an abuse of discretion.

With respect to Father’s argument that the trial judge abused her discretion in changing the Judgment of Divorce, the appellate court remanded so that the judge could make the necessary findings of fact and conclusions of law to justify her decision.

You should contact an attorney if you have questions or concerns regarding sanctions or penalties that have been or may be imposed on you or the other party during a court hearing for failure to comply with a court order.

Written by Allyson Lutley, law clerk at The Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

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