MICHELLE WALKER v. FRANCIS WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2438-06T5

MICHELLE WALKER,

Plaintiff-Appellant,

v.

FRANCIS WALKER,

Defendant-Respondent.

_____________________________

 

Submitted September 24, 2007- Decided

Before Judges S.L. Reisner and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FM-20-1435-92.

Central Jersey Legal Services, attorneys

for appellant (Susan McCue, on the brief).

Respondent did not file a brief.

PER CURIAM

Plaintiff Michelle Walker appeals from a May 11, 2006 order of the trial court denying her application to reinstate child support retroactive to April 24, 1998, and a December 19, 2006 order denying her motion for reconsideration. Because we conclude that the Family Part judge should have held a plenary hearing to resolve material factual disputes before deciding, on equitable grounds, to relieve defendant Francis Walker of approximately eight years of child support obligations, we reverse and remand this matter for further proceedings.

I

This appeal arises from the disposition of plaintiff's application, filed in 2006, to re-establish defendant's child support obligation, which had been suspended by a court order entered in 1995, and to impose that child support obligation on a retroactive basis going back to 1998, when plaintiff regained legal custody of the couple's two children. The court determined to re-establish child support but to deny retroactivity.

These are the most pertinent facts. The parties were divorced in 1992. Defendant was ordered to pay plaintiff ninety-one dollars per week in child support for the couple's two children. According to her certification in support of her 2006 application, plaintiff was incarcerated from February 1995 until October 1995, during which time the children lived with her sister. While she was incarcerated, defendant was arrested for failure to pay child support. At a hearing which plaintiff did not attend and of which she contends she received no notice, Judge Callahan entered an order on June 28, 1995, suspending defendant's "child support and arrears" because he was "collecting social security." The record does not reflect what evidence defendant had presented to Judge Callahan concerning his financial situation.

Thereafter, the record reflects a 1997 application by the Board of Social Services to enforce child support. Plaintiff has supplied us with an order entered by Judge Callahan dated May 15, 1997, directing defendant to pay $50 per week on arrears of $1092 owed to plaintiff and $4995 owed to the Board of Social Services. The same order directed that a hearing be scheduled on defendant's ability to pay, as he claimed to be homeless and living on city welfare. Between 1998 and 2002, the Board filed a series of applications to enforce child support, all of which were unsuccessful because, according to the Board, defendant could not be located for purposes of service.

In the meantime, plaintiff, who had been attending a drug rehabilitation program, regained physical custody of the children in 1997 and obtained physical and legal custody by order entered on April 24, 1998. She was "on welfare" during some of the time between 1997 and 2005, but claimed in her 2006 motion certification that she did not receive notice of the Board's various child support applications. She attested that she did not realize that no ongoing child support order was in effect, until she was finally terminated from receiving welfare benefits in 2005, and was "informed by Probation that there was not a child support order and had not been a child support order since it was suspended in 1995." Accordingly plaintiff, through her Legal Services attorney, filed the 2006 application to reinstate child support.

Defendant, who was pro se, filed a certification in opposition to the application. He agreed that his initial child support obligation was ninety-one dollars per week. However, he contended that he, and not plaintiff's sister, had physical custody of the children while plaintiff was incarcerated. He denied any knowledge of attempts to serve him with the later child support applications. He contended that when he was "released from prison in 2003 to the Intensive Supervision Program and went to work," he assumed that certain deductions from his pay "were for the purpose of child support." He also attested that he was currently a full-time college student with an income of $196 per week. He requested that any child support order be effective as of the date of the hearing rather than retroactive, as "[a] retroactive order would not only devastate my meager finances it would also jeopardize my education . . . to become a Certified Alcohol and Drug Counselor."

In reply, plaintiff filed a certification conceding that defendant had custody of the children for a time, but contending that the Division of Youth and Family Services took the children from his custody on January 30, 1997 due to his drug use and neglect of them. She conceded that she did not officially regain custody of the children until April 24, 1998. She also agreed there was no dispute that "arrears payments have been deducted from defendant's pay check for years." Apparently, no current support was being assessed. She modified her initial request to seek support retroactive to April 24, 1998.

In her reply papers, plaintiff also submitted a certification from the deputy counsel to the Union County Division of Social Services (UCDSS) attesting that plaintiff had received public assistance on various dates between September 1994 and August 31, 2005, and that the UCDSS had attempted to obtain child support orders but had been unable to locate defendant to serve him with the applications. The certification also attested that Probation apparently misconstrued the 1995 order suspending defendant's child support obligation as having terminated his obligation. The certification also indicated that the agency joined in plaintiff's application to reinstate or reestablish defendant's child support obligation on a retroactive basis and asked that the arrears be awarded to the UCDSS for the periods of time when plaintiff was receiving public assistance. None of the parties filed briefs in support of or opposing the motion.

A second Family Part judge heard plaintiff's application on March 30, 2006. In this and all subsequent hearings, the parties were placed under oath prior to the hearing, but there was no formal testimony and no opportunity for cross-examination. At the hearing, plaintiff's counsel conceded that both parties were apparently under the mistaken assumption that defendant was subject to a continuing child support order, neither realizing that the fifty dollars per week being deducted from his pay was only for the 1995 arrears. In his comments to the court, defendant conceded that he was not on "social security" in 1995, but he contended he never said that to the court; rather, he claimed he told the court he "was on Social Services at the time. They may have misunderstood me. . . ." The UCDSS attorney, however, indicated that even if defendant had been receiving welfare benefits, he would not have been obligated to pay child support. The attorney offered to obtain the information concerning what, if any, public benefits defendant had received. Defendant also contended that a large child support judgment entered against him might prevent him from obtaining a professional license or certification as a drug counselor; however, the court indicated that there would be no impact on licensure so long as defendant was adhering to any court-ordered payment schedule.

In an oral opinion placed on the record on May 11, 2006, the judge found that if he were to reinstate child support retroactive to 1998, defendant would owe approximately $50,000. He concluded that N.J.S.A. 2A:17-56.23 precluded such a retroactive award of child support. He also concluded that "[t]here may very well have been an error made internally by the probation department, but to require a retroactive modification back" to either 1995 or 1998 "would not be fair under the circumstances."

Plaintiff filed a motion for reconsideration, supported by a certification in which she attested that defendant had, at all relevant times, lived at his mother's house and could "have responded to the multiple notices sent to him in the past eight years for court appearances." She contended that the court had "essentially rewarded the defendant for his deceptive behavior" in avoiding service of process all these years.

Defendant filed a responding certification attesting that he had not always lived at his mother's house in Scotch Plains, that plaintiff was aware that he had lived in Trenton and had visited him there, and that she was otherwise aware of where he was living during all relevant time periods. He also attested that on occasion he had given plaintiff cash to help support the children and his family had done so as well. He further attested that Probation knew where he lived and could have served him with its child support applications. In fact, he submitted pay stubs with his address on them, and notations that child support had been deducted to be paid to Probation. He also contended that plaintiff herself could have applied for child support or could have provided the UCDSS with his address.

The reconsideration motion was heard on August 4, 2006, by which time defendant was employed at a drug treatment program. The court questioned why plaintiff did not file her own application for child support during those periods when she was not collecting public assistance. She contended that she talked to a child support caseworker and was told that "they can't find him." She also contended that she told Probation where defendant lived but whenever anyone went to look for him, "[h]is mother or somebody would say he didn't live there." She contended that even the Scotch Plains police could not find defendant despite her requests for their assistance. Her counsel also contended that plaintiff was not noticed on several of the UCDSS applications to reinstate child support.

Defendant, who was still pro se, contended that plaintiff could have gone to court and inquired about the status of the child support order. He also stated that when he was released from prison to the ISP program, he was living in Trenton and plaintiff knew where he was and brought the children to visit him. Defendant further contended that while he was on probation, the Probation Department obviously knew where he was, and he was unaware that he had a different obligation under the 1995 support order to notify Probation of his address for child support purposes.

On December 19, 2006, the judge placed an oral opinion on the record deciding the reconsideration motion as it related to the retroactivity issue. He first indicated that his decision on that issue was not affected by whether imposition of arrearages would affect defendant's ability to become a certified alcohol and drug counselor. He construed Judge Callahan's June 28, 1995 order as suspending defendant's obligation to pay child support as well as his obligation to pay arrearages. Thus, until the order was modified, defendant had no obligation to pay child support. By order of May 15, 1997, defendant was ordered to pay arrears, but not to pay child support on an ongoing basis. The judge acknowledged that N.J.S.A. 2A:17-56.23(a) did not bar retroactive modifications increasing support "where equitable." However, he determined that in this case it would not be equitable to do so.

In support of his decision, he considered plaintiff's failure to apply for an upward modification prior to 2006, even though there were substantial periods when she was not on public assistance and hence could not rely on UCDSS to make such an application. He noted that defendant did not appear in response to UCDSS'S applications and there "was an issue as to where he was living." He also noted that defendant had an obligation to notify probation of his current address, but defendant claimed that he did notify probation of his whereabouts on his criminal case. The judge reasoned

I cannot conclude that the defendant engaged in deceptive, intentional efforts to change his address and thwart his child support obligation as alleged by [plaintiff] in this case. He didn't do what 2A:17-56.13 requires him to do [in terms of address notification]. He perhaps notified his criminal probation officer of where he was living. However, I don't see where it has been established that his behavior in this regard has amounted to deceptive behavior in efforts to avoid service for as long as possible as argued by [plaintiff]. There were numerous efforts at enforcement. There was never an effort made by the plaintiff to seek modification of Judge Callahan's order from June 28th, 1995, which order modified the defendant's child support obligation to zero pending further order of the Court.

In response to plaintiff's counsel's further argument that her client was completely unaware of the 1995 order, and that at the time she stopped receiving public assistance in 2005 she did not know where defendant was, the judge declined to change his decision, noting that plaintiff could have attempted to serve defendant at his last known address.

II

Ordinarily, we will defer to a decision of the Family Part, recognizing its special expertise in matrimonial and other family issues, so long as the decision is supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, we must review de novo the legal issue of whether the trial court decided contested issues of material fact without a plenary hearing. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

On this appeal, plaintiff first contends that the application should not have been denied "on the basis of N.J.S.A. 2A:17-56.23a." This point is moot, however, because on reconsideration the judge acknowledged that the statute did not bar modification, and he did not base his decision on the statute. See Keegan v. Keegan, 326 N.J. Super. 289, 293-94 (App. Div. 1999).

Thus, we turn to the key issue before us, which is whether the judge should have conducted a formal evidentiary hearing and resolved the credibility issues presented by the evidence before deciding the application for retroactive child support. We conclude that he should have done so.

We do not quarrel with the judge's conclusion that he had equitable discretion to determine whether or not to order defendant to pay child support retroactive to 1998 or to some other prior point. We also bear in mind, however, that the fundamental purpose of child support is to benefit the parties' children, who apparently have lived in poverty for the past decade with little or no support from their father.

The purpose of child support is to benefit children, not to protect or support either parent. Our courts have repeatedly recognized that the right to child support belongs to the child, not the custodial parent. See, e.g., Pascale v. Pascale, 140 N.J. 583, 591 (1995); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). "The custodial parent brings the action on behalf of the child and not his or her own right." Martinetti, supra, 216 N.J. Super. at 512. Thus, the right to child support cannot be waived by the custodial parent.

[J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007).]

Moreover, the children were clearly blameless in this matter. Hence, they may well have a stronger claim to equitable relief than does the UCDSS which perhaps might have done more to try to locate defendant.

However, any equitable decision would need to be based on an evidentiary record and findings of fact including credibility determinations. Such determinations are not properly made based on competing certifications and a motion hearing with no formal testimony and no opportunity for cross-examination. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995), certif. denied, 142 N.J. 455 (1995). In this case, there were disputed factual issues as to whether plaintiff knew defendant's location, and whether defendant intentionally evaded service of process or otherwise concealed his whereabouts from either plaintiff or Probation. If defendant hid himself from plaintiff or avoided service of process in any of the filed child support applications, it may be highly inequitable to deny his children child support for the period during which he was evading his obligations.

It is also relevant whether defendant in fact had the ability to pay child support during the hiatus between 1998 and 2006, and if so how much he was earning. If he was on public assistance or otherwise had no income, the issue of retroactive support may be moot with respect to at least portions of that time period. During the first hearing, the UCDSS attorney offered to obtain information concerning defendant's possible receipt of public assistance. That information as well as defendant's employment history and income should be produced on remand.

With respect to any claim by the UCDSS, there is also an unresolved issue as to why the UCDSS could not locate defendant if he was incarcerated, in the ISP program or on probation. N.J.S.A. 2A:17-56.13 provides that service may be made at the address defendant last provided to the Probation Division. It is not clear why the UCDSS did not invoke this provision or whether it followed the statutorily-required procedures for attempting to locate a missing child support obligor. See N.J.S.A. 2A:17-56.13 (requiring "inquiries that may include, but are not limited to: the United States Postal Service, the Division of Motor Vehicles . . . , the Division of Taxation . . . and the Departments of Labor and Corrections.")

Since this case, which potentially involves significant amounts of child support, cannot be decided without an evidentiary hearing, we remand the matter to the trial court for that purpose. We do not retain jurisdiction and we intimate no view as to how the trial court should resolve the factual and credibility issues noted here or any other factual issues that may be raised at the hearing.

Reversed and remanded.

 

Plaintiff's reconsideration motion raised additional issues which are not the subject of this appeal and hence will not be addressed here.

(continued)

(continued)

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A-2438-06T5

October 9, 2007