MARTHA RUGGERO v. MICHAEL RUGGERO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1694-05T21694-05T2

MARTHA RUGGERO,

Plaintiff-Respondent,

v.

MICHAEL RUGGERO,

Defendant-Appellant.

_______________________________

 

Submitted: May 9, 2006 - Decided May 31, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Essex County, FM-07-648-95.

Robert S. Dorkin, attorney for appellant.

Martha S. Ruggero, respondent, pro se.

PER CURIAM

In this post-judgment matrimonial matter, defendant Michael Ruggero appeals from denial of his September 16, 2005 motion to retroactively modify his child support obligation to April 10, 2003, due to his disability. The parties were married in l983 and divorced in l995, pursuant to which plaintiff Martha Ruggero retained custody of the three minor children. Prior to this application, defendant unsuccessfully attempted several times to reduce his financial obligations under the final judgment of divorce and subsequent orders, the last such order being issued in the fall of 2002. Defendant accrued significant outstanding child support, college contribution and other related arrearages, which prompted plaintiff to institute enforcement proceedings in this state and in New York, pursuant to the Uniform Interstate Family Support Act. Following a support enforcement hearing in Nassau County, defendant was incarcerated for a three-month period commencing on April l4, 2005.

Defendant injured his left foot and ankle on April 10, 2003, requiring surgery and preventing him from working. In August 2003 he filed a motion in the New York state courts to modify his support obligation. Plaintiff cross-moved in New York for enforcement of support. In October of 2003, the New York court dismissed the application for lack of jurisdiction, based on the residence of plaintiff and the children. At that time defendant represented to the New York court that he intended to pursue relief from the Family Part in New Jersey.

In January 2004 defendant filed for social security disability benefits. His counsel appeared at the hearing before the federal Administrative Law Judge (ALJ) on May 3, 2005, and a physician testified on his behalf. Defendant, however, was apparently unable to attend due to his incarceration. On June 16, 2005 defendant obtained a favorable ruling from the ALJ, finding him disabled and entitled to benefits from April l0, 2003 to June 15, 2005.

On September 1, 2005, defendant filed a pro se application to modify his child support and any other financial obligations for the children retroactive to April l0, 2003 in reliance upon the ALJ's determination of disability. He also requested that the court credit any derivative disability payments received by plaintiff for the children against any child support or arrears that accrued since his date of disability. Defendant certified that his medical condition worsened, he continued to be unable to work, and explained that if he had been able to testify before the ALJ, he was "confident" he would have been declared permanently disabled by the Social Security Administration. He attached a disability certificate dated August 11, 2005 and a narrative report dated August 4, 2005 from his treating physician. In the narrative report, the physician opined that defendant was totally disabled, that he requires the aid of an ambulatory assist device, and recommended foot surgery. Defendant explained that he had to re-file an application with Social Security seeking a determination of total disability. Although defendant acknowledged he was advised by the Nassau County judge in 2003 that he had to file his application for support modification in New Jersey, he provided no explanation for his two-year delay in doing so.

Plaintiff filed a cross-motion for enforcement. She certified that defendant's child support arrearages were in excess of $45,000 and that he owed about $17,000 in court-ordered unreimbursed college expenses for his eldest daughter. Neither party requested oral argument.

On October 21, 2005, the Family Part judge entered orders denying defendant's requested relief and granting plaintiff's cross-motion. In a December 21, 2005 letter submitted pursuant to Rule 2:5-1(b), the trial judge explained that defendant's retroactive application was prohibited by N.J.S.A. 2A:17-56.23a and that defendant failed to meet his burden under Lepis v. Lepis, 83 N.J. 139 (1980) to show changed circumstances in demonstrating a disability justifying a downward modification of his financial obligations as of September 2005. The judge found defendant's CIS was incomplete; he failed to provide his tax returns or W-2 statements; and his medical evidence was not compelling.

On appeal, defendant argues that he met his burden of proof under Lepis and that his changed circumstances make it impossible for him to meet his support obligations under the court's October 21, 2005 order. Defendant urges that his situation warrants an exception to the retroactive bar of N.J.S.A. 2A:17-56.23a. He further seeks a remand to credit the derivative social security disability benefits plaintiff received for the minor children "towards outstanding support/college arrears which defendant may ultimately owe to the plaintiff."

We are not persuaded by defendant's arguments on the retroactive application of N.J.S.A. 2A:17-56.23a. In Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2001), we held only that an adjudication of disability by the Social Security Administration constitutes a prima facie showing of disability. Defendant's reliance on that case to eliminate retroactively his legal duty to pay child support as of April 10, 2003, in the absence of having filed a timely motion for modification, is misplaced. Defendant cannot even rely on his New York filing in 2003 as an equitable basis for retroactivity. Despite promptly being apprised that he had filed in the wrong forum and being directed to file in New Jersey, he waited over two years before filing his motion for modification in this state. During this period, defendant made no payments on account of his financial obligations to his children. Nor did he provide any explanation for his delay in filing the motion. Moreover, defendant's disability was not a pre-determined event, such as emancipation or one agreed upon between the parties, which merited relief from the retroactive statutory bar as in Thorson v. Thorson, 241 N.J. Super. 10 (Ch. Div. l989). See also Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) (emancipation); Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 9 (App. Div. 1991) (mutual agreement).

In his reply certification, defendant had explained he had not worked since April 2003 and there were no state or federal income tax returns to produce. The trial judge did not explain the basis for his conclusion that defendant's medical evidence of his continuing disability "was not compelling." In his reply brief, defendant's counsel represented that on February 3, 2006 the Social Security Administration confirmed that defendant met the medical requirements to receive disability benefits and that he expected a second determination to be rendered confirming that defendant is permanently disabled. Accordingly, we remand to allow defendant the opportunity to present that supplemental evidence, and grant the trial judge the discretion to use the September 16, 2005 filing date of defendant's initial motion as the effective date of any future modification.

According to plaintiff's brief, defendant received $36,306 from Social Security for temporary disability benefits from April 10 through August 31, 2005, of which $11,000 was remitted to Probation on September 5, 2005 on account of child support. On November 4, 2005, plaintiff represented that she received a direct payment from Social Security of $29,086 ($14,543 disability benefit for each of his two younger daughters covering the same period for which defendant was awarded temporary disability). Defendant's motion requested a credit of any derivative disability benefits received by plaintiff against child support or arrears accruing since April 10, 2003. The trial judge did not have the specifics at the time of the motion and denied the application without prejudice. In her responsive brief plaintiff indicated she had no objection to a remand to determine if the derivative payments should be credited against defendant's arrearages, which were in excess of $50,000. We remand this issue to the trial court for analysis of the benefits received by the minor children and a determination of the appropriate application of such derivative payment. See Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998) and Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix 1X-A and 1X-B to R. 5:6A (SSD non-means tested benefits paid to a dependent child by reason of either parent's disability and which have not resulted in diminution of Social Security payments to the custodial parent are deducted from a total support award).

Affirmed in part, remanded in part. We do not retain jurisdiction.

 

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A-1694-05T2

May 31, 2006