ROSEMARIA FUENTES v. JOHN SALGADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6164-08T36164-08T3

ROSEMARIA FUENTES,

Plaintiff-Respondent,

v.

JOHN SALGADO,

Defendant-Appellant.

___________________________________

 

Submitted May 26, 2010 - Decided

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-849-05.

Community Health Law Project, Inc., attorneys for appellant (Brian G. Smith, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant John Salgado appeals from an order of the Family Part refusing to suspend his child support obligation. We remand to the Family Part for further consideration consistent with this opinion.

Salgado and plaintiff Rosemaria Fuentes are the parents of a son born in March 2003. In October 5, 2006, Salgado was ordered to pay child support in the amount of $32 per week, plus an additional $5 towards arrears. On June 19, 2009, Salgado filed a motion to suspend his child support obligation, arguing that he was disabled and that his only income was Supplemental Security Income (SSI), in the amount of $8.73, and Social Security Disability Insurance Benefits (SSD), in the amount of $646.

On July 17, 2009, the Family Part judge denied the motion. According to the order, she concluded that the SSI income was exempt from consideration in fixing child support, citing Burns v. Edwards, 367 N.J. Super. 29 (App. Div. 2004), but that the SSD was not. She denied the motion because the child support obligation was correctly determined using the $646 from SSD as Salgado's income. On appeal, Salgado argues, as he did before the motion judge, that his SSD income should be treated in the same manner as his SSI income because his entitlement to SSI income was significantly reduced by his receipt of SSD.

There does not appear to be any dispute that Salgado is disabled. The issue on appeal is whether his SSD should be used to calculate his child support obligation. While SSI is a means-tested benefit, SSD is not. Id. at 36-37. In Burns, we drew a distinction between the two, holding that SSI could not be used to calculate child support because it is intended to keep people above the poverty line, but that SSD could be used because it is a form of insurance benefit replacing lost salary. Ibid. In doing so, we observed that "SSI benefits are not a substitute for lost income due to disability; rather, they are a supplement to the recipient's income" and that their purpose "is to assure that the income of a recipient is maintained at a level viewed by Congress as the minimum necessary for subsistence." Id. at 37.

If Salgado were not receiving SSD benefits, his SSI benefit would be $634.73. See 20 C.F.R. 416.410, 416.1121(a) (2010). However, because SSD is considered a substitute for earned income, all but the first $20.00 of his SSD benefit is deducted from his SSI benefit, which is why he receives only $8.73 from SSI. See 20 C.F.R. 416.1124(c)(12) (2010). The result is that Salgado's total income, $654.73, is only $20 more than his SSI would have been. That is $20 more than the income level "viewed by Congress as the minimum necessary for subsistence."

Our child support guidelines recognize that the amount of child support resulting from the application of the guidelines may require adjustment when the obligor's net income, after deducting the obligor's share of the child support obligation, "'is less than 105% of the U.S. poverty guideline for one person.'" Burns, supra, 367 N.J. Super. at 47-48 (quoting Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2004)). Whether such a reserve is appropriate depends, in part, on whether the obligee is also living below that level. Ibid. The record does not contain the child support worksheet utilized when the child support was first determined, nor was there a worksheet attached to the order on appeal. Consequently, we cannot determine whether there was a calculation of a self-support reserve, although the record's silence on that issue suggests that there was not.

In addition, we cannot tell with certainty from the record before us whether the parties' son is receiving any SSD benefit directly, although he would presumably be eligible to do so. See id. at 38; 20 C.F.R. 404.350 to .368 (2010). Those benefits would also be reflected on the child support worksheet and would affect the calculation of support. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A(10)(c) to R. 5:6A at 2391-92 (2009); see also Herd v. Herd, 307 N.J. Super. 501, 502 (App. Div. 1998). If the child is not receiving such benefits, but is eligible, the motion judge should ensure that the parents take the steps necessary to obtain them.

Although we appreciate the logic in Salgado's argument that his SSD benefits up to the amount of what would have been his SSI benefits should be exempt, we have concluded that the policy considerations involving the interplay between federal and state law with respect to a parent's support obligation and the exemption for some, but not other, federal benefits does not warrant such a result. See Burns, supra, 367 N.J. Super. at 39-45. Instead, the issue of whether Salgado should be required to pay his full child support obligation is appropriately addressed through application of the child support guidelines and use of the child support worksheet with respect to the availability of a self-support reserve and consideration of any SSD benefits directly available to the child.

Because those considerations are not addressed in the record before us, we remand to the Family Part for reconsideration in light of the issues we have raised. Jurisdiction is not retained.

Remanded.

 

(continued)

(continued)

5

A-6164-08T3

RECORD IMPOUNDED

July 2, 2010