EVELYN O'DANIELS v. JULIO MELENDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0682-05T50682-05T5

EVELYN O'DANIELS,

Plaintiff-Appellant,

v.

JULIO MELENDEZ,

Defendant-Respondent.

______________________________________________________________

 

Submitted June 6, 2006 - Decided September 27, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, FD-10-32-01.

Marc A. Rapaport, attorney for appellant.

Julio Melendez, respondent pro se.

PER CURIAM

Plaintiff, Evelyn O'Daniels, appeals from a June 21, 2005 order reducing arrears and reducing the child support obligation of defendant, Julio Melendez, and from an order dated August 31, 2005 awarding attorneys' fees to defendant. We reverse and remand for a recalculation of credits against arrears, and we reverse the portion of the August 3, 2005 order that awards attorneys' fees.

Plaintiff and defendant were involved in a relationship that resulted in the birth of a child, Aiyana Nicole Rivera-O'Daniels, born May 24, 2000. Initially, defendant contested, but later stipulated, paternity. In addition, a paternity test confirmed that defendant is Aiyana's biological father. In November 2000, the court entered an initial child support order directing defendant to pay $260 a week, effective from the date of Aiyana's birth. Because the obligation was effective from the date of the child's birth, defendant owed plaintiff $6,500 in arrears immediately upon entry of the order. He was ordered to pay an additional $25 per week toward the arrears. Thereafter, as a result of periodic reviews and based upon cost of living adjustments, the weekly child support obligation was adjusted to $286. On April 22, 2005, it was determined that defendant was responsible for child support arrears in the sum of $7,021.84 and that he was required to pay weekly child support of $286, plus $50 per week toward arrears.

On April 27, 2005, defendant, who was injured on September 11, 2001, and lost his job as a Customs Officer at the World Trade Center, moved for a recalculation of his child support obligations based on his income from workers' compensation, a lump sum Social Security Disability (SSD) payment for Aiyana of $3,273, monthly SSD payments for Aiyana made to plaintiff on defendant's behalf, and an alleged $600 monthly support obligation to his three other children in New York. Plaintiff cross-moved to require defendant to produce current verification of his income. She sought, among other things, tax returns for the prior three years and details and documents relating to defendant's child support obligations to his other three children in New York. Plaintiff also asked the court to increase defendant's child support obligation to reflect her childcare costs. In response to the cross-motion, defendant asserted that plaintiff had withheld information about monthly SSD checks she had received for Aiyana on his behalf.

After a hearing, the court, in accordance with an opinion dated June 22, 2005, reduced defendant's child support obligation from $286 per week to $219 per week based on defendant's income from SSD, workers' compensation, and an inheritance. The court instructed the Probation Department to calculate a credit balance against defendant's arrears in the full amount of the SSD benefits that had been paid for the benefit of Aiyana on his behalf. At that time, the total was believed to be $8,556.80.

Plaintiff moved for reconsideration, and on August 31, 2005, the court entered a second order, which was filed on September 1, 2005, that: (a) corrected the total "undisclosed excess support payments," adjusting the total from $8,556.80 to $7,207.00; (b) adjusted the weekly support obligation upward by $5 to $224 per week; (c) denied plaintiff's request to require defendant to provide current financial information; and (d) ordered plaintiff to reimburse defendant one-half of the $2,235 he had incurred for attorneys' fees as a result of plaintiff's act of bad faith in not informing the Probation Department that she had been receiving SSD payments for Aiyana on defendant's behalf.

On appeal, plaintiff asserts that the court erred (1) by reducing defendant's child support obligation without current financial documentation; (2) by crediting defendant's child support arrears with the full amount of the monthly SSD payments received for Aiyana; and (3) by finding that bad faith on plaintiff's part justified an order requiring plaintiff to reimburse one-half of defendant's counsel fees. We perceive no error in the refusal to compel production of current financial documentation, but agree that a remand is required for a recalculation of credits toward arrears. We also conclude that the court's order requiring plaintiff to reimburse one-half of defendant's counsel fees on the motion to account for uncredited governmental benefits was an improper exercise of discretion.

"[A]limony and support orders define only the present obligations of the former spouses." Lepis v. Lepis, 83 N.J. 139, 146 (1980). Thus, alimony and support obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Ibid. (citations omitted).

Examples of such "changed circumstances" warranting modification include: "(1) an increase in the cost of living; (2) increase or decrease in the supporting spouse's income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse's loss of a house or apartment; (5) the dependent spouse's cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law." Id. at 151 (internal citations omitted).

In Lepis, the Court outlined the procedures to be followed in petitioning a court for a modification of an alimony or support order. First, the party seeking modification has the burden of making a prima facie showing of changed circumstances. Id. at 157. "When the movant is seeking modification of child support, the guiding principle is the 'best interests of the child[].'" Ibid. See also Dolce v. Dolce, 383 N.J. Super. 11, 19 (App. Div. 2006) (quoting Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991)). Only after the moving party has made a prima facie showing of changed circumstances, i.e., that the child's needs have increased to an extent for which the original arrangement does not provide, "should the respondent's ability to pay become a factor for the court to consider." Lepis, supra, 83 N.J. at 157. It is for the court to determine whether to order discovery and hold a hearing. Id. at 158-59.

Here, we are satisfied that, in a reasonable exercise of discretion and consistent with prevailing law, the court denied plaintiff's cross-motion for discovery of financial information and documents. However, we cannot adequately review and evaluate the statement in the court's written opinion attached to its June 22, 2005 order, that it was "satisfied as to the [defendant's] explanations as to the absence of [his] tax returns, his SSD/work[er]s compensation and his FEMA/Red Cross income since his 9/11 experience." The court did not specify or summarize defendant's explanation and it is not apparent in the record. But we observe that the burden to establish sufficient changed circumstances for a reduction of support was borne by defendant. We are not satisfied that defendant met his burden.

The trial court applied the SSD benefits Aiyana received to reduce defendant's arrearages and ordered the probation department to credit any excess toward future obligations. Credits may be properly applied to arrears which accrue during the period of defendant's disability, but credits allowed for pre-disability arrearages and for future obligations are not authorized. Sheren v. Moseley, 322 N.J. Super. 338, 341-42 (App. Div. 1999). In Sheren, we concluded that a disabled supporting parent is "entitled to a credit only against the arrearages accrued during the period of his [or her] disability, not against his [or her] future obligations." Id. at 341. Moreover, a trial court is to consider "[SSD] payments received for the child's benefit not as a credit against support payable but as a factor in calculating the [payor's] child support obligation." Tash v. Tash, 353 N.J. Super. 94, 103 (App. Div. 2002).

Here, defendant's disability appears to stem from the events of September 11, 2001. Yet, the court applied the total amount of SSD benefits Aiyana received to defendant's total arrearages, which date back to May 24, 2000. The SSD payments should have been used only as a credit toward defendant's arrears that accrued during the time that defendant was disabled. The SSD payments should not have been credited against any arrears that accrued prior to defendant's disability. Thus, on remand, the court must determine the amount of credit to be applied to defendant's arrears for the SSD payments received during the period of defendant's disability. Defendant would still be responsible for any arrears that accrued prior to his disability.

Also, the SSD payments do not automatically qualify for use as a credit to defendant's future obligations. As we explained in Sheren, supra, 322 N.J. Super. at 344:

We hold that defendant is not entitled to a retroactive credit for that part of the lump sum social security disability benefit paid to his dependent children which exceeds the amount attributable to the period of his disability. That amount belongs to his dependent children even though it exceeds the amount of child support ordered in the judgment of divorce.

[(Citations omitted.)]

As previously stated, according to the Child Support Guidelines, Appendix IX-B, the SSD benefits reduce the total child support amount and then from that amount defendant's obligation is to be determined. Therefore, the court erred by directing that defendant receive a $1,100 credit toward future payments. If the SSD payments to Aiyana exceeded defendant's arrears, he was entitled to move to calculate Aiyana's total support in accordance with the Child Support Guidelines, but the excess should not have been presumed to be a credit in defendant's favor.

Finally, plaintiff argues that the court erred when it ordered her to reimburse one-half of defendant's counsel fees of $2,235. That order was based upon the court's finding that plaintiff "acted in bad faith by failure to acknowledge receipt of" defendant's government benefits. In reviewing any request for counsel fees in family matters, reference must be made to R. 5:3-5(c), which incorporates the requirements of R. 4:42-9 in the presentation of the application. In order to determine an appropriate fee award in a matrimonial action, the trial court must consider the following factors:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

The decision to award counsel fees is, of course, discretionary. Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

[Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952).]

The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004).

Bad faith is a proper consideration in the determination to award attorneys' fees. Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992). Thus, "fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees." Ibid. However, the exercise of judicial discretion must have factual underpinnings and legal basis. State v. Madan, supra, 366 N.J. Super. at 110.

The court's decision assumes plaintiff concealed the receipt of SSD payments and implies that plaintiff should have acted affirmatively to inform the probation department of the SSD payments. There was no evidence produced by defendant, however, that he did not know Aiyana was receiving SSD payments. It was, therefore, defendant's obligation to move to have the SSD payments considered and properly credited toward the satisfaction of his obligations. Conversely, absent any false or misleading representations by plaintiff, we do not perceive that plaintiff had a burden to communicate with the probation department or that her failure to volunteer information of which defendant was aware constituted bad faith.

Reversed as to the award of counsel fees and reversed and remanded as to the credits for SSD payments.

 

In that order and opinion, Julio Melendez is referred to as plaintiff and Evelyn O'Daniels is the defendant, the opposite of their respective designation in this matter. To avoid confusion, we have used the designations that conform to the designations of the parties in the caption of this appeal.

For example, among the materials submitted to this court is a letter dated January 10, 2006, from counsel addressed "To whom it may concern," which advises that "an offer was made on behalf of Mr. Julio Melendez to appellant's attorney to pay the increase of child support sought by Ms. O'Daniels in the amount of $19 per week." That letter indicates that counsel was not retained by defendant in connection with the appeal and, indeed, the defendant's brief was suppressed by order dated March 29, 2006. Thus, we cannot and do not accept the representation in the letter, but we note that if the representation is true, that defendant is voluntarily offering to make the support payments plaintiff is seeking, the dispute on that issue may be moot or, if it is not moot, there is a need for further exploration of the basis for defendant's application for a reduction of child support.

(continued)

(continued)

11

A-0682-05T5

 

September 27, 2006