STATE OF NEW JERSEY VS. RICKY W. SESSOMS (09-05-1233, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0597-15T3

SHELLEY MIZRAHI,

Plaintiff-Respondent/
Cross-Appellant,

v.

ALBERT SROUR,

Defendant-Appellant/
Cross-Respondent.
______________________________

Submitted February 16, 2017 – Decided April 20, 2017

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FM-13-1983-14.

Agnes Rybar, attorney for appellant.

Keith, Winters & Wenning, L.L.C., attorneys
for respondent (Brian D. Winters, on the
brief).

PER CURIAM

Defendant appeals from July 17 and August 28, 2015 Family

Part orders. Plaintiff cross-appealed. We affirm in part, and
we remand to the trial court for clarification of the child support

arrears.

Plaintiff and defendant married in October 1996 and had four

children. The parties divorced pursuant to a New York Judgment

of Divorce on December 17, 2012.1

The Judgment of Divorce awarded plaintiff seventy percent and

defendant thirty percent of the marital estate, primarily

consisting of the family's house. Use and occupancy of the house,

located in Brooklyn, New York, was given exclusively to plaintiff.

If plaintiff could not buy out defendant's interest in the home,

she was to sell the house. Plaintiff was entitled to receive

credit from defendant's share of the sale proceeds of $70,000 for

current outstanding attorney fees owed by plaintiff, $47,324 for

support and arrears, and $5,000 for interim attorney fees unpaid

by the defendant, as well as the outstanding balance of tuition

owed to the children's school.

In February 2013, defendant filed an order to show cause in

New York, seeking to vacate the judgment of divorce and stay the

sale of the Brooklyn house. In response, plaintiff filed an order

to show cause seeking an injunction against defendant interfering

1 Numerous other post-judgment orders were entered in the New
York courts prior to the motions, which are the subject of this
appeal.

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in the sale of the martial home. Plaintiff submitted an affidavit

and supporting documents establishing the house was sold and

detailing the various disbursements and credits from the proceeds,

which left nothing to distribute to defendant. Because the marital

home had already been sold, the New York court dismissed

plaintiff's application as moot and denied defendant's motion for

a stay. Defendant did not appeal. On August 25, 2014, plaintiff

registered the Judgment of Divorce in New Jersey after she moved

to the state with the four children.

In December 2014, plaintiff moved before the Family Part in

Monmouth County to deny defendant any unsupervised time with their

youngest son. Plaintiff also sought an application through the

Monmouth County Court Family Support Center to "establish and

transfer child support arrears from New York to New Jersey."

A January 8, 2015 order provided the following:

1. The Defendant's child support arrears
accrued in New York State shall be set for
purposes of collection and garnishment in the
State of New Jersey via Family Support Center
(Probation) in the amount of $34,973.20 which
reflects the total amount due less all
applicable credits to the Defendant for
amounts previously paid or to be credited
. . . .

2. There continues to be dispute over $15,511
in arrears to the extent that this amount has
been reduced to a Judgment in the State of New
York, which may be enforced in New Jersey as
a civil judgment. The parties shall, with

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 counsel, mediate this issue and provide proofs
with regard to whether or not that amount has
been properly credited or deducted from the
amount permitted to be set as enforceable
arrears in N[ew] J[ersey]. If there is no
agreement on that issue, counsel shall submit
written proofs to the Court and the Court
shall determine whether or not it is
appropriate to add $15,511 to the amount of
arrears established in New Jersey.

On February 26, 2015, defendant filed an Order to Show Cause

seeking injunctive relief. Defendant asserted, among other

things, plaintiff had fraudulently transferred ownership of her

Eatontown home to her mother to frustrate his ability to receive

his share of the proceeds of the Brooklyn home.

In May 2015, defendant filed a motion, requesting among other

things, the court find plaintiff failed to provide an accounting

from the proceeds of the sale of their marital home. Plaintiff

cross-moved to fix child support and alimony arrears at $79,694.20

as of June 5, 2015, and to enter judgment against defendant in

that amount. Plaintiff arrived at this amount by combining the

amount of a New York judgment, $15,511, with amounts she claimed

represented separate New York arrears of $34,973.20 and New Jersey

arrears of $29,210.

In a July 17, 2015 order, the judge denied defendant's request

to revisit distribution of proceeds from the Brooklyn home. She

found plaintiff had provided an adequate accounting regarding the

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net proceeds from the sale and denied defendant's request to compel

plaintiff to pay defendant his thirty percent of the proceeds.

The court found no basis to restrain plaintiff from transferring

her interest in her home, or to join the plaintiff's mother in

this action, because there were no open equitable distribution

issues as the distribution issues had already been litigated in

New York.

The judge denied plaintiff's motion to set child support

arrears at $79,694.20. Plaintiff and defendant both filed motions

for reconsideration of the July 17, 2015 order. On August 28,

2015, the judge entered an order finding plaintiff's motion for

reconsideration untimely because the arrears were fixed in the

January 8, 2015 order, and a motion for reconsideration should

have been filed within twenty days from the date of that order.

The judge also found the court was "fully satisfied that the

plaintiff has provided sufficient documentation of the use of the

proceeds of the marital home." This appeal followed.

Defendant argues the trial court acted improperly by

accepting plaintiff's accounting of the sale of the marital home

because the accounting had many discrepancies. Defendant argues

the trial court should not have accepted the accounting because

defendant's evidence presented a genuine issue of material fact,

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and thus, the trial court's failure to require additional discovery

or an evidentiary hearing was an abuse of discretion. We disagree.

Material factual disputes should be resolved through plenary

hearings, but "not every factual dispute that arises in the context

of matrimonial proceedings triggers the need for a plenary

hearing." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App.

Div.) (citing Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div.

1998)), certif. denied, 142 N.J. 455 (1995). Trial judges "cannot

resolve material factual disputes upon conflicting affidavits and

certifications." Ibid. (citing Fusco v. Fusco, 186 N.J. Super.

321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super.

259, 262 (App. Div. 1968)). Based upon a trial court's ability

to "hear[] the case, see[] and observe[] the witnesses," we give

deference to a trial court's credibility determinations. Cesare

v. Cesare, 154 N.J. 394, 412 (1998) (quoting Pascale v. Pascale,

113 N.J. 20, 33 (1988)).

Our review of the record shows plaintiff provided the trial

court with the March 18, 2013 affidavit she filed in response to

the February 13, 2013 order to show cause defendant filed in New

York. The affidavit provided a detailed explanation of how the

proceeds from the sale of the house were distributed and what

credits were applied. Included in her affidavit was a detailed

account of defendant's liabilities credited against his thirty

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percent share of proceeds. We note the New York court determined,

in a June 6, 2013 order, defendant's request for a stay was denied

as the sale of the marital home had already occurred. We also

note defendant did not appeal that order, nor did he move for

reconsideration to challenge plaintiff's accounting in the New

York courts. Defendant also did not appeal the final judgment of

divorce. Because the New York court determined defendant's

challenge to the distribution of the marital estate was moot in

2013, and that order was never appealed, we are satisfied the

trial judge correctly determined plaintiff's disclosure

demonstrated that no open issues remained concerning equitable

distribution.

Defendant also argues plaintiff made a fraudulent conversion

when she transferred the New Jersey property to her mother, and

the trial court erred by not allowing defendant to join plaintiff's

mother as a party and failed to restrain plaintiff and her mother

from selling the property. We reject these arguments.

The judge noted in her decision, "the only matters open before

the court [were] potential changes in custody and parenting time."

Additionally, plaintiff's mother had no part in these proceedings,

and defendant is not entitled to recover anything from her.

The judge declined to restrain plaintiff and her mother from

selling the New Jersey property plaintiff bought with the proceeds

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from the sale of the marital home. Defendant had no claim against

plaintiff at the time of the transfer because the court had

accepted plaintiff's accounting of the sale of the marital home.

We discern no error in the judge's conclusion.

Plaintiff argues the judge made a mathematical error and the

total arrears of child support should be $69,661 because the

$15,511 support judgment from New York should have been added to

$54,150, which plaintiff argues is the amount owed from September

12, 2013, to June 5, 2015. Defendant argues the motion for

reconsideration of the January 8, 2015 order is not timely, but

fails to provide any legal citations as to why this is not timely.

He argues if the motion is found to be timely, an abuse of

discretion standard applies. Defendant also asserts there was no

mathematical error by the court.

Based on our review of the record, the trial judge's orders

are conflicting. In the January 8, 2015 order, the trial judge

stated child support arrears from New York were $34,973.20. The

trial judge noted a continuing dispute over the New York judgment

for $15,511 in arrears and "whether or not that amount has been

properly credited or deducted from the amount permitted to be set

as enforceable arrears in N.J." The January 8, 2015 order directed

the parties to mediate the issue and submit proofs "with regard

to whether or not that amount has been properly credited or

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deducted from the amount permitted to bet set as enforceable

arrears in N.J."

In the July 17, 2015 order, the trial judge addressed arrears

again, noting plaintiff argued the amount of arrears for both New

York and New Jersey should be set at $79,694.20, but defendant

opposed that amount "and certifie[d] that the court order of

January 8, 2015 lumped all the arrears together." The trial judge

cited the January 8, 2015 order, including the discussion of the

dispute over the $15,511. The trial judge "agree[d] with the

Defendant's interpretation and f[ound] that the arrears amount has

been set. There has been no timely motion for reconsideration of

that order, or appeal."

In her August 28, 2015 order, the trial judge noted

plaintiff's motion for reconsideration on the arrears was untimely

because the arrears were set in the January 8, 2015 order, not the

July 2015 order, and a motion for reconsideration should have been

filed within twenty days from January 8, 2015.

The trial judge specifically stated in the January order that

$15,511 was in dispute and the parties should mediate the issue,

but later agreed with defendant the January order had set the

arrears, including the $15,511 she previously said was in dispute.

In the August order, the judge then denied plaintiff's motion for

reconsideration, stating the motion for reconsideration of the

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arrears should have followed the January order; however, in the

January order, the judge had informed the parties the arrears were

in dispute and did not state she was setting the arrears for both

New Jersey and New York. Therefore, we remand this matter to the

trial court for a determination of the arrears due to plaintiff

for both New York and New Jersey.

Affirmed in part; remanded in part. We do not retain

jurisdiction.

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