NOT FOR PUBLICATION WITHOUT THE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-3083-15T1
NICOLE N. NEWELL,
f/k/a SHAIN,
Plaintiff-Respondent,
v.
DANIEL H. SHAIN,
Defendant-Appellant.
———————————————————————————————-
Submitted August 8, 2017 – Decided September 7, 2017
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Salem County,
Docket No. FM-17-0219-12.
Daniel H. Shain, appellant pro se.
Law Offices of Virginia Maroulakos Rucinski,
LLC, attorneys for respondent (Virginia
Maroulakos Rucinski, on the briefs).
PER CURIAM
Defendant Daniel Shain appeals from a March 11, 2016 wage
execution order in favor of plaintiff Nicole N. Newell. He argues
that "the current [o]rder for [w]age [e]xecution by the . . .
[c]ourt is not a suitable course of action because it will cause
financial hardship for [d]efendant's three (3) dependent children,
ages 14, 15 and 17." After reviewing the record and law, we
disagree and affirm the trial court.
I.
In June 2013, the parties divorced. The final judgment of
divorce ordered the parties to abide by the terms of their marital
separation agreement (MSA). The MSA entitles plaintiff to $350
of alimony per week. It also states defendant "hereby waives his
right to child support."
On December 20, 2013, the Family Part ordered defendant to
pay $12,100 to plaintiff's counsel, at the rate of $1100 on January
1, 2014, and $1000 per month thereafter. Defendant appealed this
order, and on July 14, 2015, we affirmed. Shain v. Shain, No. A-
2575-13 (App. Div. July 14, 2015). On September 2, 2015, this
court granted plaintiff an additional $9500 in attorney's fees,
due within thirty days.
On December 18, 2015, the trial court found defendant in
violation of its December 20, 2013 order and this court's September
2, 2015 order. The court did not grant plaintiff attorney's fees
for the motion that resulted in the December 18, 2015 order;
however, defendant subsequently filed a motion for reconsideration
of that order. The court denied his motion and granted plaintiff
$697 of attorney's fees, due within thirty days.
2 A-3083-15T1
When defendant refused to pay the fees, plaintiff filed a
motion for wage execution. On March 11, 2016, the court found
that defendant "earns $4,636.29 [every two weeks] as a faculty
member at Rutgers University, which equates to a salary of
$120,543.54 per year. Additionally [defendant] pays alimony to
[plaintiff] in the amount of $350.00 per week or $18,200.00 per
year. Therefore [defendant], after subtracting his alimony
payments, earns $102,343.54 per year or $8,528.62 per month." The
court acknowledged defendant had to care for his children, but
concluded that he "still has financial commitments he must
fulfill." The court therefore granted plaintiff's request for a
wage execution order against defendant's salary for (1) ten percent
of defendant's gross salary when it equals or exceeds $217.50 per
week, (2) twenty-five percent of defendant's disposable earnings
for that week, or (3) the amount, if any, by which defendant's
disposable weekly earnings exceed $217.50, whichever is least.
Defendant now appeals.
II.
Our review of a trial court's findings of fact is limited.
Generally, "findings by the trial court are binding on appeal when
supported by adequate, substantial, credible evidence." Cesare
v. Cesare, 154 N.J. 394, 411-12 (1998). We will not disturb a
trial court's findings "unless they are so wholly insupportable
3 A-3083-15T1
as to result in a denial of justice." Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We do not
defer to a trial court's legal conclusions or their application
to the facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
N.J.S.A. 2A:17-50(a) requires a trial court to issue an order
of wage execution under certain circumstance:
When a judgment has been recovered in the
Superior Court, and where any wages, debts,
earnings, salary, income from trust funds, or
profits are due and owing to the judgment
debtor, or thereafter become due and owing to
him, to the amount of $48.00 or more a week,
the judgment creditor may, on notice to the
judgment debtor unless the court otherwise
orders, apply to the court in which the
judgment was recovered, or to the court having
jurisdiction of the same, and upon
satisfactory proofs, by affidavit or
otherwise, of such facts, the court shall
grant an order directing that an execution
issue against the wages, debts, earnings,
salary, income from trust funds, or profits
of the judgment debtor.
15 U.S.C.A. § 1673(b) states:
(2) The maximum part of the aggregate
disposable earnings of an individual for any
workweek which is subject to garnishment to
enforce any order for the support of any
person shall not exceed—
(A) where such individual is supporting
his spouse or dependent child (other than
a spouse or child with respect to whose
support such order is used), 50 per
centum of such individual's disposable
earnings for that week;
4 A-3083-15T1
. . . .
except that, with respect to the disposable
earnings of any individual for any workweek,
the 50 per centum specified in clause (A)
shall be deemed to be 55 per centum . . . ,
if and to the extent that such earnings are
subject to garnishment to enforce a support
order with respect to a period which is prior
to the twelve-week period which ends with the
beginning of such workweek.
"The term 'disposable earnings' means that part of the earnings
of any individual remaining after the deduction from those earnings
of any amounts required by law to be withheld." 15 U.S.C.A. §
1672(b). New Jersey implements this fifty-percent maximum rate
under N.J.S.A. 2A:17-56.9: "The total amount of income to be
withheld shall not exceed the maximum amount permitted under
. . . the federal Consumer Credit Protection Act[.]" Further, we
have previously held that "in the face of a continuing
noncompliance with both a current order and an arrears payment
order, the wage execution, up to a permissible maximum . . . must
cover both." Burstein v. Burstein, 182 N.J. Super. 586, 595 (App.
Div. 1982). Thus, "[c]urrent support should be paid first and,
if there is a difference remaining between current support and
garnishable wages, the difference may be allocated to arrearages."
Ibid.
In this case, plaintiff has a judgment entitling her to more
than $48 a week from defendant, so she properly filed a motion for
5 A-3083-15T1
an order of wage execution. See N.J.S.A. 2A:17-50(a). Defendant
contends his "wages are currently garnished ~ 25% of disposable
income ($350/week). Further garnishment would exceed State and
Federal limits." We disagree.
We first note that plaintiff's alimony is not calculated as
twenty-five percent of defendant's weekly disposable income; it
is stipulated as $350 per week. Reviewing the trial court's order,
we turn to defendant's pay stubs, which show he earns $4636.29
every two weeks. During a representative pay period, defendant
had $947.18 withheld from his paycheck. He consequently had
$3689.11 of disposable income every two weeks. We divide this
number by two to put it in the weekly terms of the trial court's
order, so defendant had $1844.56 of weekly disposable income.
Fifty-five percent of defendant's weekly disposable income is
$1014.51. Per the second option of the trial court's order,
twenty-five percent of defendant's weekly disposable income is
$461.14. Defendant also pays plaintiff $350 of alimony per week.
$461.14 plus $350 is $811.14, which is forty-four percent of
defendant's weekly disposable income. We therefore conclude the
trial court's order of wage execution complies with 15 U.S.C.A. §
1673 and N.J.S.A. 2A:17-56.9.
Affirmed.
6 A-3083-15T1