LOVELACE SCOTT III v. DALYA O'NEAL

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0177-07T30177-07T3

LOVELACE SCOTT III,

Plaintiff-Respondent,

v.

DALYA O'NEAL,

Defendant-Appellant.

__________________________

 

Submitted September 29, 2008 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-769-06.

Dalya O'Neal, appellant pro se.

Law Offices of Scott Joseph Capriglione and Diane Mellott-Capriglione, attorneys for respondent (Mr. Capriglione, on the brief).

PER CURIAM

Defendant, Dalya O'Neal, appeals pro se from a July 26, 2007 order entered on the recommendation of a hearing officer, pursuant to Rule 5:25-3, requiring her to pay weekly child support of $123 plus $23 towards arrears. We vacate and remand.

We glean the following from a very scant record. Plaintiff, Lovelace Scott III, and defendant have two children, now ages fifteen and fourteen, who are in the custody of their father. It is their support that is in dispute. Plaintiff has a third child, from another relationship, in his custody. Defendant, who is separated from her husband, has custody of her five children from other relationships, ranging in ages from eleven to two.

On August 4, 2006, a support order was entered against defendant by default requiring her to pay $190 weekly in child support. The record does not reveal if this was the first child support order entered against her. At the time, defendant was unemployed, homeless, and pregnant with her youngest child. The August order was subsequently vacated on October 31, 2006, because defendant had not been "properly served."

The October 31 order directed the parties to appear before a hearing officer for "a recalculation of the [defendant's] support obligation." This appeal is taken from the child support order entered on July 26, 2007, after such a hearing. We cannot determine from this record if the July 26, 2007 proceeding was the first after the October 31, 2006 order.

At the July 26, 2007 hearing, plaintiff testified that he earned a weekly gross income of $892 from his state employment. Defendant stated that she earned $14 per hour for a forty-hour week at her last job, which lasted for one year. Defendant did not say, and she was not asked, when her employment terminated. Although defendant disclosed that she received "help" from the fathers of her other five children, she was not asked, nor did she volunteer, the actual amount that they contribute. There are no child support orders in effect against them.

The hearing then continued:

Hearing Officer: Based on a gross weekly income of $892 per week for [plaintiff], which is your year-to-date average, based upon $560 per week for [defendant], which is what you had made as your hourly rate at your job.

. . . .

Hearing Officer: Do you have any day care expenses connected to these two children, sir?

[Plaintiff]: Currently no, ma'am.

. . . .

Hearing Officer: I'm going to reduce [the child support obligation] to $123 per week effective the date this motion was filed, June 18[]. There is currently a $23 pay back toward arrears and I'm going to continue that. That's a total of $146 per week by income withholding.

[T]he plaintiff/obligee[] will provide the medical insurance, as he is currently doing. And, [defendant] is responsible for 31 percent of any unreimbursed medical expenses in excess of $250 in a calendar year. Are there any other issues, ma'am? Are there any issues that I need to be aware of?

[Plaintiff]: No, ma'am.

Hearing Officer: I do note that you have not been making payments. You need to bring this current. And I would suggest that you contact [p]robation before it develops into a bigger problem.

Hearing Officer: Okay. This order is for your review. I will remind you I'm a hearing officer not a judge

[Defendant]: If you're not appealing, you have to sign it?

Hearing Officer: You do have the option of objecting and go[ing] before the judge. If you wish to do so just let me know. If not, I need you to sign the order. We'll give you a copy for your records and I'll also give you a copy of the calculation that was done. . . . Thank you both. Have a nice afternoon.

Plaintiff contends as a preliminary matter that this appeal should be dismissed because defendant's signature on the hearing officer's order effectively operates as a consent to its entry and is therefore a waiver of the right to appeal. Rule 5:25-3(d)(3), however, specifically provides that orders entered as a result of a hearing officer's recommendations are final orders of the Superior Court appealable directly to the Appellate Division. Consequently, we will consider defendant's appeal as from a final order and as of right. See R. 2:2-3(a)(1).

Furthermore, it is not clear that defendant understood that by virtue of her signature she was consenting to the entry of the order. Nor was it clear whether she understood that if she objected to the order, she could obtain an immediate review of the hearing officer's recommendation by a Family Part judge. See R. 5:25-3(d)(2).

Along the same lines, plaintiff's contention that entry of the child support order was in effect a default judgment not subject to direct appeal lacks merit. Our consideration of the matter is in accord with Rule 5:25-3(d)(3).

Attached to the hearing officer's order is the "Child Support Guidelines Sole Parenting Worksheet," setting forth the mathematical calculations that resulted in the order. Based on defendant's imputed weekly gross income of $560 and the five children in her custody, the support award as originally calculated came to $33 weekly. By way of explanation for the deviation from the Guidelines amount, in line three of the section titled "Comments, Rebuttals, and Justification for Deviations," the hearing officer noted, "[Self-support] reserve disallowed as [defendant] is below poverty threshold only because of multiple support obligations. [S]he has 5 children living with her and she indicates that she receives assistance from all 3 fathers, although there are no formal court orders."

We understand the time constraints under which hearing officers labor, but this proceeding was so truncated that we do not have the information necessary to conduct a meaningful and fair review. See R. 1:7-4. The hearing officer's brief comments are not the equivalent of requisite findings of fact and conclusions of law. See Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006). The hearing raised more questions than it supplied answers.

As we have previously said, "Attachment of the child support guidelines worksheet to an order for child support is not a substitute for a statement of reasons for the decision, particularly when the amount of income earned by one of the parties is in dispute." Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002). "[A]n articulation of reasons is essential to the fair resolution of a case." Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000). Here, we do not have an explanation of why the hearing officer increased support from the $33 guidelines figure to $123.

The child support guidelines may be modified or disregarded by a court "only where good cause is shown." R. 5:6A. The hearing officer may have considered contributions made to defendant by the fathers of her other children as good cause for deviation, but there are no facts in the record to warrant the decision.

In fact, the guidelines specifically state such good cause may be present when the income of the obligor is at or near the poverty level and payment of child support would reduce the obligor's net income below basic subsistence, as described in Section 7(h) of Appendix IX-A. Section 20 of Appendix IX-A states that payment of child support is not intended to deny the supporting parent "the means of self-support at a minimum subsistence level." The order entered here may be so high that defendant cannot support herself above basic subsistence, although, on this limited record, we cannot conclude even that much with certainty.

In addition, we see nothing that explains how it was possible for defendant to have accrued arrears if the earlier $190 per week order was vacated in October 2006. The hearing officer imputed income to defendant, even though defendant had five children under the age of eleven at home, had been unemployed for some unknown period of time, and had been homeless within the prior year. No deduction was made for imputed child care costs offsetting the imputed income. The offset is required by Section 12 of Appendix IX-A of the guidelines.

Accordingly, we reverse and remand. We direct that, given the very confused procedural history and circumstances of the parties, a Family Part judge, not a hearing officer, consider the matter. We anticipate that if the order were to be revisited by a hearing officer, pursuant to Rule 5:25-3(d)(2), whichever party was dissatisfied with the outcome would exercise his or her right to an immediate appeal to a judge. Hence, in the interest of judicial efficiency, as well as more comprehensive review, it is to be heard by a judge on remand. We do not retain jurisdiction.

Vacated and remanded.

The hearing officer recommendation was made after the July 26, 2007 hearing, and the recommendation was signed and ratified on August 1, 2007. R. 5:25-3(d).

(continued)

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A-0177-07T3

November 17, 2008