JOANNE R. BUNDSCHUH v. JOANNE R. BUNDSCHUH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1847-05T21847-05T2

JOANNE R. BUNDSCHUH,

Plaintiff-Respondent,

v.

JOHN F. BUNDSCHUH,

Defendant-Appellant.

_______________________________________

 

Submitted August 8, 2006 - Decided August 16, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-1096-97.

Central Jersey Legal Services, attorneys for appellant (Russell Gale, of counsel and on the brief).

Respondent did not file a brief.

PER CURIAM

This is a child support matter. Defendant John F. Bundschuh, the father of five children with his former wife plaintiff Joanne R. Bundschuh, appeals certain aspects of child support modification orders issued by the Family Part on September 28, 2005 and on November 15, 2005. We affirm those orders in part, and modify them in part.

The parties were divorced through a default final judgment entered on April 24, 1998. At the time of the divorce judgment, the parties had one emancipated child twenty-two years of age and four unemancipated children: Lacey Ann (born November 20, 1983); Matthew (born July 30, 1985); Bethany (born June 17, 1991) and Sarah (born June 8, 1995). The judgment awarded the mother primary residential custody of the four younger children, requiring the father, then a truck driver for a bread company, to pay $230 weekly to the mother in child support through the probation department.

The present appeal arises out of an unopposed motion to modify child support filed by the father in June 2005. According to the father's certification and supporting documents, he developed serious medical problems in 2003, including heart disease and diverticulitis, which led to his hospitalization. These medical issues resulted in the Social Security Administration declaring the father disabled as of March 1, 2004. As the result of that determination, the dependent children were deemed eligible to receive monthly Social Security disability benefits as of August 2004. The father remains disabled.

The father's motion before the Family Part sought to terminate his child support obligations respecting the two older children on grounds of emancipation, both of those children having reached the age of eighteen. According to the father's uncontested certification, neither of those two children completed high school or pursued higher education. The motion also sought to reduce the father's child support for the two younger children, in light of the Social Security disability payments they were receiving and the father's inability to continue to work.

In the Family Part's initial order of September 28, 2005, the court granted the father's application in part, declaring Lacey Ann and Matthew emancipated as of March 1, 2004, the date upon which their father was declared disabled. See Wasserman v. Parciasepe, 377 N.J. Super. 191 (App. Div. 2004)(determination of disability by Social Security Administration creates rebuttable presumption of disability for purposes of child support). The motion judge declined, however, to provide retroactive relief to the father before March 1, 2004, stating in the order that "the date of [the father's] disability is the earliest date on which the emancipation [of Lacey Ann and Matthew] should be effective."

With respect to the two youngest children, Bethany and Sarah, the motion judge reduced the father's combined child support obligation to $43 per week, effective August 1, 2004, the date upon which they were first eligible as dependents to receive Social Security disability payments. That adjustment was based on calculations pursuant to the New Jersey Child Support Guidelines and a corresponding worksheet prepared by the father's counsel. See Child Support Guidelines, Pressler, Current New Jersey Court Rules, Appendix IXA to R. 5:6A at 2301 (2006). The motion judge denied the father's application to receive, apart from this retroactive adjustment in his weekly support obligation, a further credit of $7,532 for lump-sum Social Security payments remitted to Bethany and Sarah through their mother in August 2005.

The father moved for reconsideration of the Family Part's initial order on the limited issues of the emancipation dates for Lesley Ann and Matthew and the denial of the additional requested $7,532 credit. The mother did not file opposition. On November 15, 2005, the motion judge issued an order denying reconsideration. The judge clarified in her order that the father's request for a $7,532 credit was "moot" because the September 27, 2005 order "has the effect of crediting the [father] for his retroactive Social Security [d]isability." She also noted that "[t]he Social Security [d]isability arrearages [paid for the benefit of the two younger children in 2005] date back to the same effective date, the date of his [the father's] disability."

The father now renews his arguments on these two items before this court, and the mother has filed no opposing brief. Upon consideration of the record and the controlling law, we affirm the motion judge in denying the $7,532 credit but modify the motion judge's orders fixing emancipation dates for the older children.

As to the requested $7,532 credit, we agree with the motion judge that the father's request, in essence, would constitute improper double-counting. Although Social Security disability payments to a former spouse for the benefit of dependent children are to be factored as income pertinent to child support calculations, see Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998), a disabled parent is not entitled to have those benefits considered twice: once in reducing his weekly obligation and again as a credit against that reduced obligation. Here, the documents in the record show that the lump sum of $7,532 represents approximately eleven months of Social Security disability paid for the two younger children from August 2004 through and including June 2005. Each monthly combined payment was $692. That same $692 monthly income figure was used by the court in recalculating the father's modified child support obligation effective August 2004. Thus, the requested $7,532 credit was duplicative and inappropriate. We affirm the motion judge's denial of the father's request.

We do, however, concur with the father that the motion judge erred to the extent that she denied emancipation effective as of the respective dates upon which the two older children, Lacey Ann and Matthew, reached age eighteen. The unrefuted proofs indicate that both children did not continue their education upon reaching the age of majority, and there is nothing in the record to suggest that they were unable to obtain employment and sustain themselves. Therefore, the father's support obligation to each of them ceased as a matter of law upon their eighteenth birthdays, and recognizing that circumstance retroactively does not violate N.J.S.A. 2A:17-56.23a. See Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995). We therefore modify the orders appealed from to reflect that Lacey Ann was emancipated as of November 20, 2001 and Matthew was emancipated as of July 30, 2003. Appropriate credits arising from this modification shall be determined by the Family Part and the probation department.

Affirmed in part, modified in part, and remanded.

 

Sheren v. Moseley, 322 N.J. Super. 338 (App. Div. 1999), a case cited by the father involving child support credits associated with retroactive Social Security payments, is inapposite because it did not involve a double-counting scenario such as is presented here.

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A-1847-05T2

August 16, 2006