BRO UTTAL v. KATHI J. PATON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0632-04T20632-04T2

BRO UTTAL,

Plaintiff-Appellant,

v.

KATHI J. PATON,

Defendant-Respondent.

_____________________________________

 

Argued November 10, 2005 - Decided March 7, 2006

Before Judges Wefing and Wecker.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Somerset County, FM-18-892-00.

William Z. Shulman argued the cause for

appellant.

Kathi J. Paton, respondent, argued the cause

pro se.

PER CURIAM

Plaintiff, Bro Uttal, appeals from an August 20, 2004 order denying his Rule 4:50-1 motion for relief from a June 11, 2004 order that denied reconsideration of a March 5, 2004 order denying his motion to eliminate or reduce child support. The Family Part judge did, however, address plaintiff's motion under Rule 4:50-1 and placed her reasons for denying relief on the record on August 20, 2004. We now reverse and remand for further proceedings.

The parties were married on September 28, 1985. On May 20, 1994, they adopted one child, a girl born on May 30, 1993. After a lengthy trial (before a different judge), an amended final judgment of divorce was filed on April 1, 2003, retroactive to March 10, 2003. The judgment provided by consent that the parties would have joint legal custody of their daughter, but primary residential custody was to be with defendant.

The parties enjoyed a comfortable lifestyle during the marriage, largely as a result of plaintiff's substantial income. Plaintiff, a Harvard University and Harvard Business School graduate, was employed as a senior technology management consultant earning approximately $180,000 per year in salary and bonus, until he lost his job in 1996. Also in 1996, the Social Security Administration determined plaintiff to be totally disabled on account of acute and chronic depression. At the time of the divorce, plaintiff's monthly Social Security disability benefits were approximately $1,581.

Paragraph 29 of the divorce judgment provided the following with respect to child support:

In addition to whatever Social Security payment the defendant receives for [the child] as a result of the plaintiff's disability (now approximately $400 per month), the plaintiff shall pay $450 per month in child support at the beginning of each month, i.e. the first of each month, through the Somerset County Probation Department.

Paragraph 32 of the final judgment included the following provision with respect to alimony:

The defendant's request for alimony is denied at this time based on the plaintiff's disability income from Social Security but directs the plaintiff to provide the defendant the information he is ordered to provide on a yearly basis for child support purposes (See paragraphs 30 and 31) on a quarterly basis i.e. January 1, April 1, July 1 and October 1. In addition, however, he is directed to provide her with copies of all of his credit card statements and statements of any bank or brokerage accounts in which he has an interest and which reflect deposits of money plaintiff has made whether from employment or other sources. Regardless of any other ruling in this Judgment, the plaintiff shall pay the defendant 35% of any compensation of any kind he receives outside of Social Security as alimony.

The judgment also provided at paragraph 33 that "[t]he defendant may file a Lepis[] application for alimony or child support based on a change of circumstances, any time after six months of the entry of this order." Neither party appealed the judgment. Plaintiff invoked paragraph 33 in his original 2004 motion to reduce child support.

Not surprisingly, defendant opposed plaintiff's 2004 motion for relief from child support and cross-moved for enforcement of litigant's rights, including the right to alimony to the extent of thirty-five percent of plaintiff's earned income above his Social Security benefits.

On this appeal, plaintiff maintains:

[t]he [trial] Court's reasoning in requiring Plaintiff to pay $450 above what he was receiving for Social Security Disability was that this is what Defendant contended that Plaintiff was spending per month for his lifestyle privileges, allegedly alcohol, tobacco and other expenses, and therefore, if he could spend that on himself, then that amount should better go to [the child].

In support of his motion to reduce child support, plaintiff certified that he was no longer purchasing alcohol, had cut his cigarette expenditure to $20 per month, and had reduced his living expenses from $4,400 per month in 2001 to $2,070 in 2003, as reflected in an updated Case Information Statement. He also certified that his Social Security benefits were being garnished by the Internal Revenue Service in the amount of $233 per month for past taxes. He claimed that he was borrowing from friends and family to make up the shortfall in his income and to make child support payments.

In response, and in support of her cross-motion for alimony, defendant submitted copies of some of plaintiff's American Express credit card statements evidencing charges for various items that did not appear to be essential living expenses.

In response to defendant's cross-motion, seeking thirty-five percent of plaintiff's "non-SSD income" as alimony, plaintiff stated that he received $23,100 "in loans from friends and family" in 2001 and "$17,800 in loans from friends and family" in 2002. He also described "$372 in repayments for credit card purchases [he] made for friends and family" in 2001 and $664 in similar "repayments for credit card purchases . . . for friends and family" in 2002. Plaintiff certified that he was in the process of filing for bankruptcy in order to obtain forgiveness of substantial non-marital debts.

Plaintiff also alleged that defendant was capable of earning additional income based upon her training and experience, and the fact that their only child was in school all day. Defendant was a self-employed literary agent and author, who has owned and operated a literary agency for many years. She earned $17,000 from that agency in 1999, earnings which decreased thereafter until in 2003, her annual gross income from the agency was only $2,500 less than the $20,000 she admits she projected in her trial testimony. Defendant contends that she has been unable to obtain suitable employment in New Jersey; that only by living in New York City could she be gainfully employed. Defendant did not submit an updated Case Information Statement in opposition to defendant's Rule 4:50-1 motion.

The motion judge explained that her June 11 order denied reconsideration because plaintiff failed to file and serve that motion within the prescribed time.

Nonetheless, in addressing plaintiff's motion for relief under Rule 4:50-1, the judge expressed her disbelief that plaintiff actually lived on his Social Security disability check:

[T]he fact of the matter is that this Court does not believe the plaintiff's information before the Court about his income. The reason that the Court doesn't believe it . . . is there is a presumption that the plaintiff can't work when he is qualified for . . . Social Security Disability benefits . . . and that presumption needs to be rebutted in order for the Court to start imputing income to him.

[Defendant] provided the plaintiff's American Express card statements from January 17th, 2004 through July 18th, 2004. Before that six-month period, it shows that the plaintiff spent $512.40 on restaurants, $174 on sporting goods and this is for a person who is allegedly disabled . . . $67.37 on liquor; $122 on videos; $43 on car detailing; $30 on an interactive classified internet service; $270 on software and computer parts; $8 a day on imported English Dunhill Blue cigarettes, $1,440 over six months; for a total of $2,660.

Now the Court has to question, with a rent of over $800 and these obvious luxury items that the plaintiff spends money on, just how is it that the plaintiff meets his basic expenses for food and medical if he is so disabled . . . and the subsistence level expenses that he doesn't appear to have, to say nothing of middle class level expenses that that one would expect him to have before the analysis would get to the rather frivolous and luxury expenses detailed in his American Express card statements. And that's just one credit card . . . .

It's clear that the plaintiff still buys computer software and components for himself, while at the same time [his child] apparently is working with a six-year-old computer whose time has passed. The picture remains that the plaintiff spends money on frivolous items . . . .

[He hasn't answered the question of] why somebody who earned $180,000 as a senior technology management consultant . . . still travels the world, spends $1,440 over six months on imported cigarettes and spends . . . other money on luxury items, one who has apparently not experienced any kind of reduction in his standard of living, how he does it and that's why the Court finds his representation as to his income incredible . . . .

The Court is convinced that this plaintiff has . . . access to assets and income that he has not disclosed . . . .

After the motion judge set forth her decision in the presence of the parties, plaintiff told the judge that her findings did not reflect plaintiff's certification filed in response to defendant's submission. In that certification, plaintiff once again explained the American Express charges and claimed that he personally had spent only $62 per month in the past six months. The motion judge acknowledged that she did not consider those papers because they were filed late. Plaintiff asserted that his papers were late because the defendant's reply brief had been late, but the motion judge replied:

The defendant's paper is not marked late. When papers are received late, they're marked late by Family Case Management. It was not received late here . . . If that's inaccurate, then you're right, you may file another motion.

As the motion judge recognized, the Social Security Administration's determination created a rebuttable presumption that plaintiff was totally disabled from employment. See Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2001). It appears that the judge reasonably relied on copies of plaintiff's credit card records to rebut that presumption. But the judge refused to consider plaintiff's late certification purporting to explain those records, and in any case, reliance upon motion papers to determine plaintiff's credibility was unwarranted.

Moreover, the judge did not address the disparity between defendant's $2,500 annual income and her lifestyle. Nor did she address the fact that Social Security dependency benefits for the child were now more than $800 per month.

On appeal, plaintiff argues that child support should be recalculated and reduced in accordance with the Child Support Guidelines, and child support so calculated should be reduced by the Social Security benefits the child receives on account of his disability, citing Tash v. Tash, 353 N.J. Super. 94 (App. Div. 2002). Plaintiff also argues that additional income was improperly imputed to him, whereas additional income should have been imputed to defendant.

Defendant argues that Tash is inapplicable, that plaintiff is not credible, and that the record supports the judge's rulings.

We do not encourage or condone repetitive motions to modify support orders. Nonetheless, at the heart of the problem is that the record does not demonstrate an appropriate calculation of child support under the Child Support Guidelines, which clearly apply. Nor does the record demonstrate that either the trial judge or the motion judge applied the Guidelines and Tash to incorporate in that calculation the Social Security dependency benefits paid for the parties' child.

A court must consider "Social Security disability payments received for the child's benefit not as a credit against support payable but as a factor in calculating the father's child support obligation." Tash, supra, 353 N.J. Super. at 103 (citing Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998)). "Government benefits that are received by or on behalf of a child based on a parent's earnings, disability, or retirement, that do not reduce the related benefits paid to the parent, and that are not means-tested, are deducted from the basic support obligation, before calculating each party's percentage share of the obligation. The Guidelines state that these dependency benefits are deemed to replace the lost earnings of the parents." Pasternak v. Pasternak, 310 N.J. Super. 483, 487 (Ch. Div. 1997) (citations omitted); see Pressler, Current N.J. Court Rules, comment 4 on R. 5:7-4 and Appendix IX-A, Child Support Guidelines 10c (2006); see generally Burns v. Edwards, 367 N.J. Super. 29, 36-38 (App. Div. 2004).

The motion judge did not mention Tash in her decision. The trial judge inexplicably ordered plaintiff to pay $450 a month in child support "in addition to whatever Social Security payment the defendant receives for [the child] as a result of plaintiff's disability (now approximately $400.00 per month)." We recognize that plaintiff did not appeal from the judgment. But in light of (1) the provision in the divorce judgment allowing a Lepis motion after six months; (2) the full dependency benefits payable for the child after the divorce; (3) the passage of three years since entry of judgment, cf. R. 5:7-4(e)(7); and (4) the imputed income questions raised by the numerous motion papers, a new determination of plaintiff's child support obligation is warranted.

We are greatly concerned at the time, energy, and expense each of the parties has devoted to litigating the issues of child support over the several years since the divorce trial. Nonetheless, the record is insufficient for us to exercise our original jurisdiction to decide the matter without a remand. In addition, the allegations of each party concerning the other party's actual earnings and ability to earn require findings of fact that demand an evidentiary hearing, and not merely reliance upon certifications. See Lepis, supra, 83 N.J. at 157; Deegan v. Deegan, 254 N.J. Super. 350, 359 (App. Div. 1992).

We therefore reverse the June 11 and August 20, 2004 orders denying plaintiff's motions for relief from child support and remand the matter for a plenary hearing which shall be accomplished with all due speed. The resulting child support order shall be retroactive to the date of plaintiff's initial 2004 motion to modify child support. Prior child support orders, however, remain in force pending conclusion of the hearing on remand. The judge on remand shall include in the final determination a calculation of arrears and a payment schedule toward arrears consistent with the court's findings as to plaintiff's ability to pay.

Finally, in light of the fact that the motion judge did express credibility findings based upon the parties' certifications, we are convinced that a different judge should be assigned to hear the matter on remand. See Pressler, Current N.J. Court Rules, comment 4 on R. 1:12-1(d) (2006).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

Plaintiff's motion also sought "reconsideration" of the June 11, 2004 order. The Family Part judge declined further reconsideration because "[t]he June 11, 2004 Order is a Final order. As such, this Court cannot grant Plaintiff the relief from judgment that he seeks. Plaintiff's remedy is with the Appellate Division."

We have not been provided with the trial judge's opinion.

Plaintiff's appellate brief indicates that his benefits have "slightly increased since."

Lepis v. Lepis, 83 N.J. 139 (1980).

The record does not include any evidence of a bankruptcy proceeding.

At the argument on August 20, the judge explained her June 11 order:

The plaintiff apparently concedes that Rules 163 and 154 modify his understanding of the application of Rule 1:3-3 and it is this Court's decision to deny the motion for reconsideration, which is the plaintiff's first request for relief in the current motion, based upon the fact that motion papers must be received by the recipients, the addressees, within the time frame set forth in the various rules. The time frame for Rule 4:42-9 is 20 days after receipt of the order from the Court. The motion for reconsideration on the ground that the Court misapplied Rule 1:3-3 and Rule 4:49-2 is denied for those reasons.

Prior to the divorce, dependency benefits were divided between mother and child. After the divorce, the entire dependency benefit was paid for the benefit of the child. As a practical matter, the entire sum was obviously available to the household either way. But the effect on child support differs, as we shall address below.

(continued)

(continued)

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A-0632-04T2

March 7, 2006