PER CURIAM.
Plaintiff Angel A. Hernandez appeals from the Family Part's April 1, 2013 post-judgment order enforcing litigant's rights vis-à-vis child support payments required by an order allegedly issued on May 17, 2002. We reverse and remand for an entirely new evidentiary hearing.
Hernandez and defendant Elida Del Carmen Meza were married in June 1993. The parties have two daughters, who presently are adults. In June 1994, under docket number FD-09-5124-94, Meza obtained an order in the Family Part declaring, with the parties' consent, Hernandez to be the father of the younger daughter. The order provided:
Meza moved with the children to Panama in November 1994, and never returned to New Jersey until 2012.
Notwithstanding Meza's residence in Panama, a default judgment of divorce was entered by the Family Part on January 14, 1999.
On January 4, 2013, Meza filed a motion to enforce litigant's rights. Although she stated that she was previously unaware of the existence of the May 2002 order for child support, after fortuitously learning of its existence Meza requested that the court order Hernandez to "comply with the order previously entered by the court for child support of [their] two (2) daughters until year 2011."
Hernandez filed opposition to Meza's motion. He certified that he was unaware of the May 2002 child support order, and did not receive any court papers in connection with the alleged order. He further averred that both of his daughters were over the age of eighteen, and that he had not seen them since Meza left with the children for Panama in 1994.
An evidentiary hearing was held on February 1, 2013. The parties and one daughter testified at the hearing.
According to a January 31, 2013 summary printout from the Family Automated Case Tracking System (FACTS),
The Family Part judge interpreted this cryptic abbreviation to mean that Hernandez had been ordered to pay $159 per week in child support to Meza, plus $10 per week for arrears, commencing on May 17, 2002.
Meza testified that she was not in the United States in 2002, but she "did remember that [she] filed online." Meza believed she filed an application through New Jersey Child Support Online
Hernandez testified that he never went to court regarding child support. He further stated that he never received notice to come to court, and was never notified that the May 2002 order existed. Finally, he stated that when his daughters showed up unannounced at his dwelling in May 2012, he "was surprised, and [he] didn't know what they're saying because [he did't] recognize either of them."
On April 1, 2013, the Family Part judge granted Meza's motion. The judge also issued a four-page opinion, which explained the decision to enforce the May 2002 order. The judge noted that there was no original of the May 17, 2002 order in the "court jacket." Referring to the "court's independent efforts" to find the May 2002 order, "no documentation could be found to determine the basis upon which the order establishing child support at the rate of $159 per week with $10 in arrears was entered on May 17, 2012 [sic]." Nevertheless, without addressing Hernandez's claim that he never received notice of Meza's online application in 2002, the judge found "no reason to vacate or modify the [May 17, 2002] order." Additionally, the judge noted, "Although this [c]ourt was unable to determine through testimony and inquiry of the Case Manager's Office precisely how this support amount was established, it is presumed to be valid." The opinion did not address the accuracy of the FACTS printout, Hernandez's claim of lack of notice, and Meza's inconclusive testimony about when and what she sought in her online application.
Thus, because Hernandez "knew he had two children," "had an obligation to support his children," and "can be said to have `enjoyed' a nearly four-year hiatus in which he was under no court-ordered obligation to pay support (from date of filing for divorce, May 22, 1998, through date of establishment of support order, May 17, 2002)," the judge "[did] not find that there has been a change in circumstance warranting modification of the existing support order."
On appeal, Hernandez argues that his due process rights were violated insofar as there was no evidence that he was notified of either the application for, or entry of, the putative May 17, 2002 child support order. We agree, mainly because the Family Part judge neglected to resolve this critical issue of notice,
"The scope of appellate review of a trial court's fact-finding function is limited" and "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence."
"`The trial court has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'"
Hernandez argues that "[i]f there is no record of a proceeding [he] cannot be held responsible when he and the other litigant were not notified of a hearing or even received notice of the award." He claims that the Family Part judge's enforcement of the May 2002 order was manifestly unsupported by, or inconsistent with, the competent, relevant, and reasonably considered evidence. Specifically, Hernandez alleges that the FACTS record was insufficient proof that a May 2002 order existed; that the judge ignored the only order regarding child support in 1994; there was no evidence that a probation account existed that tracked a child support order; and that the judge ignored Meza's testimony that she was unaware of the existence of a support order until late 2012.
Pursuant to our
Here, Meza testified that she never appeared for a hearing in 2002, and the record is devoid of any evidence establishing that the parties were ever provided with notice to appear. Although there probably is a plausible explanation for how an order might have been entered in May 2002, it is nowhere to be found in this record. Because the underlying 2002 order was legitimately challenged, in order for Meza to prevail on her 2012 enforcement motion, she needed to present evidence to establish that such an order actually existed, and that Hernandez received notice of the application and order. These proofs may, indeed, exist in an archived court file, but they were conspicuously absent at the hearing conducted in the present case.
Finally, while the Family Part judge mentioned that he made independent efforts to locate a copy of the May 2002 order, he did not specify exactly how he attempted to obtain it. If the order were not in the Hudson vicinage, he, or court staff, could have contacted the Clerk of the Superior Court and attempted to retrieve a copy of the order as provided by Administrative Directive #03-01 and its progeny.
We do not take issue with the Family Part judge's discussion of the equities or his comment about how Hernandez's counsel at the time of the judgment may have failed to fulfill the duty of candor to the judge who signed the divorce judgment. However, these are secondary considerations to due process. If a May 2002 order never existed, or if it were entered without appropriate due process of law, an enforcement rationale is mere surplusage. On remand, the first issue that must be addressed is whether, in fact, there ever was a valid order for child support entered against Hernandez. If not, then Meza's enforcement motion must be denied. Alternatively, if the May 17, 2002 order is found to be valid, and its $10 per week arrears' component explained, the Family Part is authorized to exercise its full reservoir of powers and principled discretion in deciding what remedies, if any, should be provided to Meza.
Reversed and remanded for a new evidentiary hearing in accordance with this opinion. We do not retain jurisdiction.
