AIESHA S. ROBINSON v. ERIC L. LEONARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1463-09T2

AIESHA S. ROBINSON,

Plaintiff,

v.

ERIC L. LEONARD,

Defendant-Appellant.

________________________________________________________________

May 11, 2011

Submitted November 9, 2010 - Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-003297-92.

Eric L. Leonard, appellant pro se.

Joshua Markowitz, Chief Counsel, attorney for respondent Mercer County Board of Social Services (Timothy L. Bauersachs, on the brief).

PER CURIAM

It is undisputed that defendant received Supplemental Security Income (SSI) benefits from January 1, 1988, through December 1, 1996, and is currently receiving SSI benefits. He has no current support obligation but has accumulated arrears. Defendant appeals from the denial of his motion for reconsideration of an order that denied his request to retroactively modify his child support obligation. For the reasons that follow, we reverse and remand.

Aiesha Robinson is the mother of defendant's son, E.R., born September 14, 1990. Although she is the nominal plaintiff, an action for child support was brought by the Mercer County Board of Social Services (MCBSS) in 1992 because Robinson was receiving Temporary Assistance for Needy Families (TANF). A child support order was entered in August 1992 that required defendant to pay $87.00 per week. Defendant did not appear at the hearing that resulted in this order. As a result, the fact that defendant was receiving SSI benefits was not presented to the court at the time support was ordered. Defendant did not appeal from the order. During the period from 1992 to 2002, he did not file a motion to vacate the order based upon the fact that his only income was derived from the SSI benefits.

Defendant was incarcerated from September 7, 1995, to August 31, 2004. He filed a motion to suspend arrears and child support payments during his incarceration and was granted that relief by order dated April 15, 2002, for the period from September 8, 2000, until his release.

Because Robinson received TANF prior to 1994 and for the period from September 7, 1995, to August 31, 2004, all the arrears for those periods are assigned to MCBSS. By order dated June 28, 2002, defendant's arrears were modified to reflect only those arrears due to MCBSS, arrears were fixed at $22,707 and reduced to judgment. As a result of a court-ordered audit of his child support account, defendant's arrears were amended in July 2009 to $14,744.22 to deduct $8,352 charged to defendant while he was incarcerated.

After his release, defendant applied for SSI benefits. The Social Security Administration found him "disabled as of December 18, 2007 because of psychiatric conditions so severe that [he is] unable to perform any work existing in significant numbers in the national economy." It is undisputed that SSI benefits have been his sole source of income since that determination was made. This fact has a critical impact upon any effort to collect defendant's arrears because "[b]enefits received through the SSI program are exempt from attachment, garnishment, levy, execution or any other legal process. 42 U.S.C.A. 407(a); 20 C.F.R. 581.104 . . . [and] cannot be garnished or attached for child support. . . . 42 U.S.C.A. 659(a)." Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004).

In September 2009, defendant filed a motion to "vacate order entered while receiving (S.S.I.) and to [r]eceive credit for money paid based on receipts provided." The statement he submitted in support of this motion clarifies that defendant sought to vacate the order entered seventeen years earlier, in 1992. His motion was denied.

Defendant then filed a motion for reconsideration, which was denied by order dated October 16, 2009, with the following explanation: "The Defendant's request to modify arrears is denied as the Court cannot retroactively modify child support." The order does not reflect consideration of the fact that, because defendant was receiving SSI benefits, collection of the arrears required the invasion of funds which are "exempt from attachment, garnishment, levy or execution." See 42 U.S.C.A. 407(a); Burns, supra, 367 N.J. Super. at 39, 45.

On appeal, defendant argues he should have been granted the relief requested because the execution of $87.00 weekly during the time he was receiving SSI benefits was contrary to 42 U.S.C.A. 407(a). In opposition, MCBSS argues that defendant's request for retroactive modification of his support order is prohibited by N.J.S.A. 2A:17-56.23a, which states 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 established prior to or subsequent to the effective date of P.L.1993, c.45 (C.2A:17-56.23a), shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," New Jersey Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." New Jersey Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). 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).

On its face, defendant's motion, filed seventeen years after the entry of the support order, appears to be barred by the statutory prohibition against retroactive modification. However, since defendant has no court-ordered support obligation at this time, the actual relief defendant seeks is to bar the collection of arrears based upon the support obligation imposed in 1992.

Crespo v. Crespo, 395 N.J. Super. 190 (App. Div. 2007) presented a factual scenario similar to this case. The obligor was found disabled due to his psychiatric illness and entitled to SSI benefits by the Social Security Administration in 2001. Due to his mental illness, he had accumulated substantial child support arrears based upon an order entered at the time of his divorce eleven years earlier. He appealed from an order that denied his motion to suspend enforcement on arrears, despite the fact that his only income was the amount he received in SSI benefits. We drew upon language from Burns as dispositive:

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." "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." Accordingly, "SSI benefits cannot be included in the child-support calculus." 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." Said another way, SSI benefits should not be included in the calculation of child support when the disabled parent receives no other income, and no other income can be imputed to him. Moreover, "[b]enefits received through the SSI program are exempt from attachment, garnishment, levy, execution, or any other legal process," even for child support or alimony.

Because defendant's only source of income is SSI benefits intended "to assure that the income of a recipient is maintained at a level viewed by Congress as a minimum necessary for subsistence," we are satisfied that Burns controls the resolution of the issue presented. The only income defendant receives is SSI benefits, funds which may not be included in the calculation of child support and are exempt from attachment, garnishment, levy, or execution.

[Id. at 194-95 (internal citations omitted) (emphasis added).]

Accordingly, we reversed the orders that required the obligor to make weekly payments toward arrears, remanded and directed that "the orders be amended to suspend collection of arrears until such time as defendant has the ability to pay the arrears from income or assets, actual or imputed, other than SSI." Id. at 195.

In this case, a pro se defendant disabled by psychiatric illness filed a motion that technically requested a retroactive modification of a seventeen year old order. The intent of the motion was, however, clear. Defendant sought to halt the collection of arrears from the SSI benefits that constitute his sole source of income. We are satisfied that his failure to properly denominate his motion should not deprive him of the relief to which he is entitled pursuant to Burns and Crespo. Therefore, we reverse and remand for entry of an order that suspends collection of arrears until such time as defendant has the ability to pay the arrears from income or assets, actual or imputed, other than SSI.

Reversed and remanded. We do not retain jurisdiction.