LISA CRESS v. JOHN CRESS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1582-05T21582-05T2

LISA CRESS,

Plaintiff-Appellant,

v.

JOHN CRESS,

Defendant-Respondent.

______________________________

 

Submitted September 5, 2006 - Decided November 6, 2006

 

Before Judges Payne and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM 01-801-02C.

Steven D. Janel, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Plaintiff Lisa Cress, previously divorced from defendant John Cress, appeals from a post-judgment order entered in the Family Part on September 16, 2005. Except to reverse that part of the order terminating defendant's child support obligation, retroactive to August 1, 2004, rather than to July 13, 2005, the date defendant filed his motion to modify child support, we affirm.

Plaintiff and defendant were married on May 16, 1995, and divorced in November 2002. Two children were born of the marriage: Kayla, born December 4, 1995; and Kassay, born March 8, 1997. At the time of divorce, plaintiff was designated the parent of primary residence, and defendant was obligated to pay child support in an amount not disclosed to this court. In 2004, defendant filed a motion to reduce his child support obligation, alleging that he had become disabled from injuries suffered in an accident at a Wal-Mart store in June 2003. It is unclear to us when this motion was heard or its result. However, the record contains an April 30, 2004 order by a Family Part judge sitting in Atlantic County that, among other matters: 1) fixed the amount of child support arrearages owed by defendant at $10,929.94; and 2) directed defendant to pay child support in the amount of $100 per week in accordance with a prior March 2, 2004 order, with the payments to be paid through the Atlantic County Probation Department.

On or about July 29, 2004, defendant suffered additional injuries when he was pushed through a plate glass window sustaining a broken left wrist, a laceration of the left wrist and arm, and loss of three-quarters vision in his right eye. On August 23, 2004, defendant filed for Supplemental Social Security Income (SSI). On June 21, 2005, defendant was declared eligible to receive SSI benefits, retroactive to August 23, 2004, at the rate of $595.25 per month. On January 1, 2005, the monthly benefits increased to $610.25. On July 13, 2005, defendant moved to reduce child support payments. Plaintiff opposed the motion, and cross-moved to enforce litigant's rights because defendant had not paid child support for a period of sixty-nine weeks.

Following oral argument on September 16, 2005, the motion judge entered an order that: 1) terminated defendant's child support obligation, retroactive to August 1, 2004; 2) directed the Camden County Probation Department to adjust defendant's account for child support from August 1, 2004, to the date of the order; 3) directed defendant to pay arrearages in the amount of $50 per week; 4) directed defendant to provide plaintiff with status reports at sixty-day intervals concerning his personal injury lawsuit against Wal-Mart; 5) denied plaintiff's request to transfer enforcement of defendant's child support obligation from Camden County to Atlantic County; and 6) denied plaintiff's motion to enforce litigant's rights.

On this unopposed appeal, plaintiff presents the following issues for our consideration:

THE LOWER COURT COMMITTED AN ERROR OF LAW AND/OR ABUSE OF DISCRETION BY ENTERING AN ORDER ON SEPTEMBER 16, 2005, GRANTING DEFENDANT'S MOTION FOR A REDUCTION IN CHILD SUPPORT AND DENYING PLAINTIFF'S CROSS-MOTION FOR RELIEF.

A. THE LOWER COURT ERRED BY TERMINATING DEFENDANT'S PRESENT CHILD SUPPORT OBLIGATION.

B. THE LOWER COURT ERRED BY RETROACTIVELY TERMINATING DEFENDANT'S CHILD SUPPORT OBLIGATION IN CONTRAVENTION TO N.J.S.A. 2A:17-56.23a.

C. THE LOWER COURT ERRED BY DENYING PLAINTIFF'S APPLICATION TO HAVE THE CHILD SUPPORT ENFORCEMENT PROBATION PROCEEDINGS HELD IN ATLANTIC COUNTY.

D. THE LOWER COURT ERRED BY DENYING PLAINTIFF'S APPLICATION TO ENFORCE LITIGANT'S RIGHTS.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that 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). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision of the Family Part judge.

Plaintiff argues that the motion judge erred by terminating defendant's child support obligation because the judge focused solely upon defendant receiving SSI benefits and failed to consider whether defendant had the ability to earn additional income. Plaintiff contends that defendant failed to establish a substantial change in circumstances because he had previously alleged that he was totally disabled in support of his 2004 motion, and the mere fact that he now receives SSI benefits does not constitute a change in circumstances. We disagree.

Generally, a non-custodial parent is relieved from child support obligations where he or she "is totally disabled" and "indisputably indigent, surviving solely on SSI benefits directed at providing him [or her] with the legislatively-established minimum level of subsistence." Burns v. Edwards, 367 N.J. Super. 29, 41 (App. Div. 2004). "The intent of the child-support framework to ensure that parents support their children has no application to those parents whose sole source of income is SSI, and where such parents have no ability to generate any additional income." Ibid. Accordingly, "SSI benefits cannot be included in the child-support calculus." Id. at 45. However, "a child support order may be entered against a parent who is an SSI recipient where the court concludes that the parent is earning or has the ability to earn additional income." Id. at 50.

Defendant's July 2005 motion for a reduction of child support obligations was supported by his certification; a physical examination report from the Division of Family Development, State of New Jersey, dated December 28, 2004; a copy of his award of SSI benefits dated June 21, 2005, retroactive to August 23, 2004; and his case information statement (CIS). The documents submitted in support of the motion disclosed that defendant: 1) is disabled; 2) suffers from heart congestion; 3) sustained serious injuries on July 29, 2004, resulting in a broken left wrist, laceration on his left wrist and arm, loss of three-quarters vision in his right eye, and medical bills approaching $500,000; 4) has limited use of his left hand, secondary to the traumatic injury of the left forearm; and 5) other than SSI, has no source of income. The motion judge's findings that defendant is disabled and has no other source of income other than his SSI benefits, were amply supported in the motion record. Accordingly, we conclude that the judge did not mistakenly exercise her discretion when she terminated defendant's child support obligation. Burns, supra, 367 N.J. Super. at 41.

Defendant contends that the judge should have imputed as income, for purposes of determining defendant's child support obligation, defendant's personal injury claim against Wal-Mart. We reject this argument. Proceeds, in a lump sum or by a structured settlement, are to be considered income under the child support guidelines, and a proper resource to satisfy a parent's child support obligation. Cleveland v. Cleveland, 249 N.J. Super. 96, 100-01 (App. Div. 1991). However, the same is not true of a mere personal injury claim. Generally, personal injury claims, by their very nature, are contingent. Income that a supporting parent might possibly receive in the future from a personal injury lawsuit is too speculative to form a basis for imputing income for purposes of determining child support. The judge's direction that defendant keep plaintiff apprised of the status of his personal injury claim was proper. Should defendant recover damages from the lawsuit, then and in such event, the court may revisit the issue of imputation of income. Cleveland, supra, 249 N.J. Super. at 99.

Defendant argues next that the motion judge erroneously reduced defendant's child support obligation retroactive to August 1, 2004, although defendant's motion for modification was not filed until July 2005. We concur.

N.J.S.A. 2A:17-56.23a provides in pertinent part:

No payment or installment of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the Court except with respect to the period during which there is pending application for modification, but only from the date of the notice of motion was mailed either directly or through the appropriate agent.

The statute "was enacted to ensure that ongoing support obligations that became due were paid. A change of circumstances, such as loss of a job, could, therefore, not be used as a basis to modify retroactively arrearages which already accrued under a child support order." Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). Defendant's motion, seeking a reduction of child support, was filed on July 15, 2005. Therefore, the decision, terminating the child support obligation effective August 1, 2004, violated the statute. Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996). Although defendant's child support obligation was terminated because of a lack of income other than SSI, his duty to support his child continues, subject to receipt of non-SSI income. Accordingly, those portions of the order of September 16, 2005, terminating defendant's child support obligation retroactive to August 1, 2004, and directing that the Camden County Probation Department retroactively adjust defendant's account, are reversed. Defendant's obligations remain payable out of any funds received by him other than SSI benefits.

Plaintiff argues next that the judge erred by denying her request to have the Atlantic County Probation Office monitor and enforce defendant's compliance with his child support obligation. Defendant asserts that the denial of her motion was contrary to the court's order of April 30, 2004, directing that payments of child support be made through the Atlantic County Probation Department, not Camden County. Plaintiff contends that the denial of her motion effectively deters her "from appearing and participating in any enforcement proceedings against [d]efendant" because of the time and expense needed to travel to Camden County.

Procedures governing payment and enforcement of child support obligations are governed by Court rules. Prior to the September 2002 and 2004 rule amendments, child support orders were enforceable in the county where the obligor resided. Pressler, Current N.J. Court Rules, comment 1 on R. 5:7-4 (2006). Rule 5:7-4(b) was amended, effective September 2002, by deleting the requirement that child support orders be enforceable in the county where the obligor resided. The rule was further amended, effective September 2004, to provide "[t]he responsibility for the administration and enforcement of the judgment or order, including the transfer of responsibility, shall be governed by the policies established by the Administrative Director of Courts." R. 5:7-4(b).

On January 31, 2005, the Administrative Director of the Courts issued Directive #3-05, Intercounty Child Support Case Management Policy. The standards concerning enforcement of child support orders under Directive #3-05 "provide that upon establishment of a child support order in the Family Division, that case will presumptively be assigned to the Probation Child Support Enforcement (PCSE) unit in that county, regardless of the residence of the obligor." Ibid. at 1. The Directive further provides that "[i]f at some point the obligor moves to another county, the case will not ordinarily be transferred to the new county of residence." (underscoring in original). Ibid. The reason for the change was explained by the Administrative Director:

Minimizing the transfer of enforcement cases saves significant time and effort by eliminating the preparation, approval, transmittal, and acceptance of case transfers. Moreover, in many cases, enforcement actions result in the obligor's request to modify the underlying child support order (e.g., support amount, parenting time, attorney's fees). Since motions to modify orders must be heard in the county of venue (usually where the court issued the original order), initiating the enforcement in the county of venue makes it possible to consolidate the enforcement and modification proceedings, pursuant to R. 5:7-6.

[Id. at 2.]

Other than for a few exceptions, the Directive is prospective. Concerning cases previously transferred to the county where the obligor resides, the Directive provides "pending cases will remain with the county to which they are presently assigned. Previously transferred cases should not be returned to the county of venue." (underscoring in original). Id. at 5.

Here, although Atlantic County is the county of venue, enforcement of defendant's child support obligation was previously transferred to Camden County where defendant resides. Because denial of plaintiff's motion to re-transfer the matter back to Atlantic County is consistent with Directive #3-05, providing that "[p]reviously transferred cases should not be returned to the county of venue," id. at 5, we conclude that the judge correctly decided that portion of plaintiff's motion.

Lastly, plaintiff contends that the judge erred by denying her application to enforce litigant's rights. Rule 5:7-5(a) permits a party, aggrieved by the supporting spouse's failure to pay child support, to institute contempt proceedings via a motion to enforce litigants' rights. Relief under the rule may include suspension or revocation of one's driving privileges. R. 5:7-5(e). However, "[r]elief by way of motion to enforce litigant's rights under R. 1:10-3 is 'not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of [a] court order.'" P.T. v. M.S., 325 N.J. Super. 193, 220 (App. Div. 1999) (alteration in original). "Clearly, before relief can be afforded, the court must be satisfied that the obedience to the order was not within the capacity of the party to comply with and hence was willfully contumacious." Pressler, Current N.J. Court Rules, comment 4.3 on R. 1:10-3 (2006). Accordingly, "before the contempt finding may be made, the court must be satisfied that the defendant is able to comply and had no good reason to resist compliance." Ibid.

Defendant moved to reduce his child support obligation in 2004, asserting that he was disabled, resulting in the court ordering child support payments at the rate of $100 per month. Shortly after entry of that order, defendant was severely injured, and now receives SSI benefits and has no other additional income. Following receipt of the SSI determination from Social Security, defendant moved to reduce his child support obligation, resulting in the September 16, 2005 order of termination. Although not expressly stated by the motion judge, we conclude that she denied the motion, determining that defendant was unable to pay child support and was not willfully contumacious. We find no mistake in the judge's exercise of discretion.

Affirmed in part; reversed in part; and remanded to the Family Part to enter an amended order terminating defendant's child support obligation effective July 15, 2005, in accordance with this opinion.

 

The record does not contain copies of the judgment of divorce, the parties' property settlement agreement, defendant's motion seeking to reduce his child support obligation leading to the entry of the Family Part's order of April 30, 2004, the transcript of the court's decision, or the court's statement of reasons, determining that motion.

The appendix does not contain a copy of an order transferring the responsibility to enforce the child support order to Camden County. We assume the transfer was made by the court sua sponte pursuant to former Rule 5:7-4 discussed infra.

(continued)

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A-1582-05T2

November 6, 2006