MICHAEL GEANEY v. LILLIAN GEANEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1034-10T3

MICHAEL GEANEY,

Plaintiff-Appellant,

v.

LILLIAN GEANEY,

Defendant-Respondent.

________________________________________________________________

February 24, 2012

 

Submitted November 30, 2011 - Decided

 

Before Judges Graves and Koblitz.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-150-07-C.

 

Michael Geaney, appellant pro se.

 

Respondent Lillian Geaney has not file a brief.

PER CURIAM

In this highly-litigated, post-judgment matrimonial matter, plaintiff Michael Geaney appeals the trial court's decisions of September 16, 2010, entered without an evidentiary hearing, denying his motion to emancipate his twenty-two-year-old son and to recalculate child support for the remaining child; denying his request for defendant Lillian Geaney to file an updated case information statement (CIS); and denying his request for a credit for overpayment of child support and for a reduction in alimony and counsel fees. Given the contested factual issues before the court, and after reviewing the record in light of the contentions advanced on appeal, we reverse and remand for a plenary hearing.

This matter has a complex procedural history. The parties were married on September 7, 1979 and have two sons, one born in 1988 and the other in 1991. The parties were divorced by final judgment dated July 28, 1999. The property settlement agreement (PSA) incorporated into the final judgment of divorce provided that: (1) plaintiff was to pay permanent alimony of $575 per week; (2) plaintiff was to pay child support in the amount of $266 per week; (3) emancipation of the children was to occur upon the occurrence of graduation from a four-year undergraduate program, termination of education for reasons other than health after the age of eighteen, full-time employment while not attending school full-time, marriage or induction in the military. The agreement was based on plaintiff's gross employment income of $120,016 per year and defendant's imputed employment income of $8580 per year and her non-taxable rental income of $8996 per year.

After a brief post-divorce reconciliation, the parties executed a consent order dated October 15, 2003, which contained various forms of relief, including stipulations that the provisions related to custody and parenting time in the final judgment were to "remain unchanged" and all communication between the parties was barred except email concerning the children.

A subsequent consent order dated July 20, 2004, increased plaintiff's alimony obligation from $575 to $1000 per week and his child support obligation from $297 to $358 per week. These amounts were based on plaintiff's 2003 gross annual income of $167,000 and defendant's imputed gross annual income of $9360.

Plaintiff was terminated with severance from his position with McGraw-Hill Companies, effective January 6, 2006. On January 27, 2006, plaintiff moved to reduce his support obligations based on changed circumstances. His motion to reduce support was ultimately denied on July 18, 2006, based upon his failure to establish changed circumstances. Plaintiff appealed, and while the appeal was pending, he filed an emergent application to stay enforcement. On August 14, 2007, we summarily remanded the matter to allow the court to amplify the record and make findings as to plaintiff's indigency for the purpose of appointing counsel pursuant to Pasqua v. Council, 186 N.J. 127 (2006), and to determine his ability to pay arrears.

The court then conducted an ability-to-pay hearing on November 8, 2007. Plaintiff detailed his job search efforts and enrollment in a paralegal studies program. Defendant testified that she believed plaintiff quit his job with McGraw-Hill purposefully to avoid paying support. By written decision dated November 27, 2007, the court found that plaintiff did not have the ability to meet the terms of the July 20, 2004 consent order. The court maintained the child support obligation at $358 per week, but reduced alimony to $42 per week; the order did not address alimony arrears.

Thereafter, we decided plaintiff's appeal on May 14, 2008, determining that he had "established a prima facie case of changed circumstances" and that he was entitled to a plenary hearing to determine "whether a change in [his] financial circumstances warrants a reduction in his alimony and child support payments" and whether any modification should be retroactive to an earlier date. Geaney v. Geaney, No. A-4591-06 (App. Div. May 14, 2008).

At the hearing on October 23, 2008, plaintiff testified that he was employed "using [his] paralegal skills as a contracts type administrator" earning $40,000 per year. Plaintiff indicated that he could afford only $50 per week in alimony. He claimed that he agreed in 2004 to essentially double his support obligations in order "to see [his] kids" and he denied going "on a mission" to decrease his income when that did not work. An extensive cross-examination explored whether plaintiff intentionally failed to disclose his 401K with McGraw-Hill1 when he applied for indigency status in 2007. The questioning also probed the reasons why plaintiff filed the motion for a reduction so soon after losing his job in January 2006.

By letter dated September 29, 2009, plaintiff's counsel advised the court that plaintiff was withdrawing his request for modification of support, thereby obviating "the need to continue the pending plenary hearing."

In a letter dated October 2, 2009, defendant's counsel alerted the court that she received information about a "super secret session" between plaintiff, plaintiff's counsel and the judge. At a hearing eight months later, the court explained that this session "was limited to the question of whether or not ethically [plaintiff's counsel] could remain in the case."

By letter dated November 11, 2009, defendant's counsel asked the court to compel plaintiff to pay arrears in a lump sum, to resume paying $1000 per week in alimony and $358 in child support, and to pay counsel fees. The letter indicated that counsel was "fairly confident" that plaintiff's arrears totaled $245,715. It further claimed that defendant had incurred taxes and penalties when cashing in her IRA because of plaintiff s failure to pay support, as well as "nearly $40,000" in counsel fees.

By an administrative cost-of-living adjustment order dated December 8, 2009, plaintiff's child support was increased to $372 per week pursuant to Rule 5:6B, alimony remained at $42 per week and arrears remained payable at $50 per week for a total support obligation of $464 per week.

The court subsequently entered an order dated December 24, 2009, pursuant to plaintiff's request, withdrawing "with prejudice" his 2006 application for a modification of child support and alimony. This order further provided that the July 20, 2004 order compelling plaintiff to pay $1000 per week alimony and $358 per week in child support was to "remain in full force" and probation was to calculate arrears by January 6, 2010.2 The order also detailed an additional $630 payment plaintiff was to make and stated that a bench warrant would be issued if the payment was not made timely.

On March 9, 2010, plaintiff filed a new motion to: (1) emancipate his older son as of December 1, 2008; (2) recalculate child support for his younger son as of the same date; (3) compel defendant to provide an updated CIS; (4) compel probation to credit plaintiff for any overpayment since the emancipation date; (5) eliminate or modify plaintiff's alimony obligation based on changed circumstances; and (6) award counsel fees and costs.

Plaintiff certified that his older son should be emancipated because he was twenty-one years old, no longer attended school, and had been working full-time since December 1, 2008. The record includes a document entitled "Bucks County Intermediate Unit Transition Services Work Training Agreement," which is signed by defendant and lists the older son's hours of employment, rate of pay and December 1, 2008 start date with a supermarket in Pennsylvania.

Plaintiff also certified that he was earning only $90,000 per year.3 He contended his child support obligation should be $106 per week, retroactive to December 1, 2008, based on his reduced income and the emancipation of his older son. Plaintiff based his request to eliminate or modify his alimony obligation on his reduced income and inability to obtain employment at his previous salary level. His March 3, 2010, CIS reports a 2009 net income of $87,542, with a gross earned income of $12,150, unearned income of $127,556, and $52,164 in taxes paid. Plaintiff's 2009 Federal income tax return reports the same earned and unearned income figures.

Defendant cross-moved seeking various forms of relief, including (1) the enforcement of prior orders; (2) the calculation of alimony arrears by probation and issuance of a bench warrant for plaintiff's arrest if not paid timely; (3) counsel fees "with respect to [p]laintiff's conduct leading to the December 24, 2009 [c]ourt [o]rder;" (4) disclosure of "the record of the 'super secret session' conducted by [p]laintiff and his prior counsel in September 2009 and making same available to [d]efendant and her attorney;" (5) the reporting of plaintiff to probation "for his perpetration of perjury upon the court;" and (6) counsel fees and costs in the amount of $47,759.22.

In support of her motion, defendant certified that plaintiff withdrew his application to reduce his support obligations with prejudice in September 2009, and had made false claims of poverty since losing his job at McGraw-Hill, when he received over $100,000 in severance pay and refused other positions within the company. Defendant asserted she has health issues that prevent her from earning more than the income imputed to her, as supported by evidence submitted in camera, and that plaintiff has significant assets hidden with his mother and fiancée. Defendant further claimed that their older son is not emancipated because of his "developmental problems." In support of her allegations, she attached investigation reports and other documents concerning their older son's educational and emotional limitations. Two letters from the Social Security Administration reported that their son received $483 per month in Social Security benefits starting in December 2008, and $240.67 in Supplemental Security Income (SSI) starting in May 2008, based on his own income and plaintiff's support payments.

At the June 28, 2010 oral argument, plaintiff's counsel argued that even though the older son was not working full-time and had a "slight learning disability," he should be declared emancipated because he was not attending school full-time and was receiving Social Security benefits directly for his disability. Plaintiff also amended his request for modification of support to be retroactive to June 2009, instead of December 2008. Alternatively, plaintiff requested a recalculation of support in light of his son's Social Security benefits. He asked for a credit towards alimony arrears of what he calculated to be roughly $15,000 in overpaid child support. Finally, plaintiff requested a decrease in alimony because he was earning 46% less income than when he agreed to the increase in 2004. In response to defendant's objection to plaintiff's liquidation of his 401K, plaintiff claimed it was used to pay $16,000 in lump sum support and then to satisfy his alimony obligation going forward.

Counsel for defendant responded that plaintiff could not prove a prima facie case of changed circumstances for a reduction in alimony because nothing had changed from the time plaintiff withdrew his motion with prejudice. Counsel argued that although plaintiff was making less money now, defendant should be allowed to argue that he was intentionally under-employed. Defendant had filed the cross-motion for enforcement based on plaintiff's actions in ceasing to pay alimony in 2006 and because she claimed the probation audit missed an entire year of unpaid alimony. Defendant also alleged that plaintiff s failure to pay support caused her to incur a debt to the IRS. As to the issue of emancipation, defendant maintained the older son had a disability, but still possessed the aptitude to pursue his college degree and was not beyond his parents' sphere of influence. She claimed, however, that the older son "may never be" emancipated. Defendant also requested significant counsel fees for the work on the prior withdrawn motion.

Before entering a decision on the parties' motions, the court conducted a telephonic hearing on July 30, 2010, because plaintiff had turned himself in on a "number of warrants," one of which had been issued by the judge the previous week with a "release figure" of $7500. Plaintiff argued that he was only $4383 in arrears. He argued that, after a "tax intercept"4 of $3935, plaintiff owed only $448, but to be released from jail, he had to pay a "purge amount" of $7500. Further, plaintiff claimed he had filed his motion for a reduction in good faith because he knew he was without means to pay the current support order, but that motion had been adjourned again at defendant's request. Defendant responded that plaintiff was more than $200,000 in arrears.5

The court ruled that "the accumulated arrears in this case exceed[s] in great measure the . . . release amount of $7500" based upon "what Probation was showing as a substantial six figure amount of arrears." Plaintiff's counsel argued that plaintiff earned $90,000 per year and had a support obligation over $70,000, which, after taxes, left a negative number. Accordingly, he requested an ability-to-pay hearing, claiming there was no proof of defendant's claim of hidden assets. The court refused to reduce the $7500 release figure. Ultimately, at a subsequent hearing two weeks later, the court accepted plaintiff's offer of a release payment of $1500.

Thereafter, by order dated September 16, 2010, the court ruled on the motion and cross-motion filed in March. The court denied plaintiff's motion to emancipate his older son and recalculate child support for the younger son. The court explained that, based on the totality of circumstances, the older son, although twenty-two years old, was "a special needs child" who was legitimately pursuing his education. The order also denied plaintiff's requests for defendant to submit an updated CIS, for a credit for overpayment of child support, for a reduction in his alimony obligation and for counsel fees. The court did not rule on defendant's claim that the September 2009 order precluded plaintiff's motion procedurally.

Although the court acknowledged that plaintiff was earning only $90,000 per year, it made "a Deegan finding"6 that plaintiff "has the capacity to earn more than that amount of money." It therefore found no change in circumstances on which to modify the "agreed upon sums between the parties." The court also indicated that he "could not find that the plaintiff had proceeded in good faith" and so awarded counsel fees to defendant.

By separate order on the same date, defendant's motion to enforce the terms of the December 24, 2009, order, "as well as prior Orders," was granted and "unallocated arrears" were set at $198,179 "without prejudice." The order further provided that plaintiff was to: (1) continue to pay child and spousal support weekly through probation; (2) provide medical insurance coverage for the two children; (3) contribute to the children's unreimbursed medical expenses in accordance with prior orders; (4) provide proof of current life insurance with beneficiary designations within ten days; and (5) contribute to the older son's college tuition and expenses "in proportion to the [p]arties' respective incomes." The order denied defendant additional relief, but awarded her counsel fees of $52,366.41, payable within forty-five days and reduced to judgment. The court indicated it had reviewed the billings submitted by defendant's counsel and found "that in every aspect of that submission the work that is identified in the billings was necessary in every instance."

In a supplemental order dated September 20, 2010, defendant's request to have plaintiff "execute documentation and authorization for the release of his 2005 and 2006 Federal and State filed tax returns" was granted and the amounts set as support arrears and counsel fees from the September 16, 2010 order were "entered as judgments against [p]laintiff."

Plaintiff raises the following issues on appeal:

POINT I: TRIAL COURT ORDERED BY APPELLATE DIVISION FROM PRIOR APPEAL TO CONDUCT "EXPEDITIOUS" PLENARY HEARING, AND EGREGIOUSLY ABUSED DISCRETION BY DENYING PLAINTIFF DUE PROCESS IN DELAYING HEARING FOR OVER 2 YEARS, CAUSING INABILITY TO COMPLY WITH ORDERS AND CAUSED OPPRESSIVE, UNJUST, INEQUITABLE ALIMONY & SUPPORT ARREARS.

 

POINT II: TRIAL COURT ABUSED DISCRETION BY MAKING NO FINDINGS OF FACTS OR CONCLUSIONS OF LAW, R.1:7-4, RE: MODIFICATION OF ALIMONY, CHILD SUPPORT, AND APPROXIMATELY $200,000 IN ALIMONY ARREARS.

 

POINT III: TRIAL COURT ABUSED DISCRETION IN FAILING TO MAKE FINDINGS AS TO EMANCIPATION OF 22-YEAR OLD SON [].

 

POINT IV: ALIMONY ARREARS OF OVER $200,000 ARE UNJUST, OPPRESSIVE AND INEQUITABLE, CAUSED BY DEFENDANT AND HER ATTORNEY'S DELAYS, OBSTRUCTIONS, AND MALICIOUS ACTS; PLAINTIFF WAS ARRESTED ON 3 CIVIL CHILD SUPPORT WARRANTS ISSUED ON JULY 30, 2010 BY TRIAL COURT UPON EX PARTE COMMUNICATIONS AND/OR HEARINGS, WHILE THERE AS A PENDING MODIFICATION MOTION FILED BY PLAINTIFF'S ATTORNEY. TRIAL COURT ABUSED DISCRETION AND VIOLATED PLAINTIFF'S FUNDAMENTALLY SECURED DUE PROCESS RIGHTS AND DENIED PLAINTIFF AND HIS ATTORNEY ANY ABILITY TO PAY HEARING ON MATTER & HELD PLAINTIFF FOR 14 DAYS, RELEASING HIM FOR $2500 TOTAL, AFTER PLAINTIFF HAD OFFERED SAME AMOUNT FOR RELEASE ON FIRST DAY OF ARREST.

 

POINT V: TRIAL COURT ALLOWED EX PARTE COMMUNICATIONS BY DEFENDANT AND HER ATTORNEY WHERE THEY MADE SPECIOUS CLAIMS THAT PLAINTIFF HAD "HIDDEN MONIES" AND MALICIOUSLY REFERRED THE MATTER TO COUNTY GRAND JURY, WHICH FOUND NOTHING; TRIAL COURT ABUSED DISCRETION IN ALLOWING EX PARTE COMMUNICATIONS FROM DEFT'S. ATTORNEY THAT "TAINTED" CASE AGAINST PLAINTIFF (WHICH SAID COMMUNICATIONS REFERENCES EX PARTE GRAND JURY INVESTIGATION), WHEREIN TRIAL COURT HAD DUTY TO DISQUALIFY ITSELF FROM ANY FURTHER PROCEEDINGS, THUS VIOLATING THE N.J. CODE OF JUDICIAL CONDUCT, CANONS 1,2, AND 3.7

 

We are constrained to remand to the court for a plenary hearing as to plaintiff's income and the older son's emancipation. Although plaintiff withdrew his 2006 request for modification with prejudice, that withdrawal covered any adjustments made during the time prior to the order of dismissal. No determination was made of plaintiff's financial circumstances after 2006, and thus, any modification request should use as its comparison point the $167,000 in income agreed-upon by the parties. The court implicitly accepted this rationale in finding that plaintiff's diminished income of $90,000 reflected a reduction in income, which the court then found to be voluntary. Given the contested nature of many of the relevant facts, these findings are unsupportable without a plenary hearing.

A trial court's obligation to make such findings of fact and conclusions of law is critical to an appellate court's "meaningful review." Ronan v. Adely, 182 N.J. 103, 110-11 (2004). This requirement is succinctly stated in Rule 1:7-4(a), which mandates that the court "shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right." "Naked conclusions are insufficient. A judge must fully and specifically articulate findings of fact and conclusions of law. . . . The absence of adequate findings . . . necessitates a reversal to allow the trial judge to reconsider the alimony decision." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (internal citations omitted).

The courtruled on plaintiff's application to reduce support based on his reduced income without conducting a plenary hearing, yet the parties disputed not only whether plaintiff's termination from McGraw-Hill was voluntary, but also the amount of plaintiff's severance package, the extent and breadth of plaintiff's subsequent job search, and whether plaintiff had other "hidden" assets available to him. While the courtmay have been relying on facts presented during the partial plenary hearing connected with the prior motion, the oral decision fails to specify on which facts it relied.

As a general matter, "[t]he duties of former spouses regarding alimony are always subject to review or modification by our courts based upon a showing of changed circumstances." Miller v. Miller, 160 N.J.408, 419 (1999) (citing Lepis v. Lepis, 83 N.J.139, 145 (1980)). The party seeking such a modification has the burden of demonstrating that changed circumstances have occurred. Innes v. Innes, 117 N.J.496, 504 (1990).

In Deegan, supra, 254 N.J. Super.at 352, we addressed "what standard should apply in determining whether unanticipated early retirement, or any other voluntary life style alteration, constitutes a change in circumstances warranting a support modification pursuant to Lepis v. Lepis, 83 N.J.139 (1980)." We concluded that the inquiry turns on whether the lifestyle alteration was voluntary or involuntary. Id.at 355. In the case of an involuntary act, a court should consider only the parties' financial conditions in determining whether a changed circumstance exists. Ibid. It should compare the parties' financial positions at the time of the entry of the order or agreement with the conditions that exist at the time of the application. Ibid.

When the change is voluntary, the analysis is more complex. The court must examine the individual circumstances of each case to determine whether the voluntary act was reasonable. Id.at 357-58.

A court must not impute income without first finding voluntary underemployment without just cause. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). "Inherent in a finding of 'underemployment' is the notion the obligor is intentionally failing to earn that which he or she is capable of earning." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). "Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004) (citing Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002)). A trial court's determination regarding the imputation of income should not be disturbed "unless the underlying findings are inconsistent with or unsupported by competent evidence." Id. at 475 (citing Tash, supra, 353 N.J. Super. at 99).

Other than the fact that plaintiff earned more than $167,000 in 2006 at his previous job with McGraw-Hill, therecord does not support the court's finding that plaintiff had the capacity to earn more than the $90,000 a year he was earning at the time he filed the motion to reduce his alimony obligation.

Moreover, the court's determination of alimony arrears is not supported on the record provided. In its decision, the motion judge noted that there was "a dramatic difference" between what plaintiff claims he owes defendant and what defendant claims plaintiff owes to her. Accordingly, the courtmade the following decision:

I propose and would order the following without prejudice to the position of [defendant]. I would fix arrears unallocated. The reason I use unallocated is because I'm satisfied that there really is not a sustainable credible record here to parse and divide between spousal support arrears and child support arrears[.] I will accept for purposes of today and for purposes of the order that I will generate today, unallocated, the proffered sum advanced by [plaintiff's attorney] of $198,179.

The Court enters that amount without prejudice, . . . . [A]s much as I would like to end this litigation today . . . .

 

That might require additional discovery. But I leave that to yourselves as lawyers.

These limited findings preclude meaningful review.

In addition, the court decided counsel fees without sufficient fact-finding. The award of counsel and expert fees in a matrimonial matter rests in the discretion of the trial court. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). Absent a clear abuse of discretion, a trial court's award of fees should not be disturbed. Platt v. Platt, 384 N.J. Super. 418, 429 (App. Div. 2006).

The record contains a number of bills and invoices dating back as far as 2003. One chart includes handwritten calculations adding up to the $52,366.41 figure awarded by the court, but there is no indication of who made those calculations or from where the individual figures came.

Rule 4:42-9 authorizes an award of legal fees and refers to Rule 5:3-5, which lists factors to be considered when awarding legal fees in a matrimonial matter. In determining such an application, a court should consider:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other fact bearing on the fairness of an award.

 

[R. 5:3-5(c).]

A relevant factor for consideration is whether a litigant has acted in "bad faith." The courts have found that an award of fees against a "bad faith" litigant is not a sanction, seeDarmanin v. Darmanin, 224 N.J. Super.427, 430 (App. Div. 1988), or punitive, seeChestone v. Chestone, 322 N.J. Super.250, 259 (App. Div. 1999), but reflects the additional and unnecessary costs imposed on the innocent party. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).

The courtfailed to issue sufficient findings of fact and conclusions of law to support its decision to award defendant counsel fees of $52,366.41. It is apparent that the award includes fees exceeding those related to the most recent motion, and the court's finding that all the fees were "necessary" without further amplification is insufficient to support such a large award.

Finally, plaintiff argues that the court abused its discretion in failing to emancipate his oldest son, who graduated high school in 2009 and worked full-time while attending community college only part-time. Plaintiff contends that he should not be required to maintain support because the older son's disability as claimed by defendant proves the older son has not shown an aptitude for college.

The court's decision to deny plaintiff's motion to emancipate his older son was based on "a combination of circumstances beyond age and beyond, at least a minimal capacity to work." The court found the older son to be "a special needs child" and explained:

I remain convinced today that even though he is [twenty-two] he has what I would call a repository of either cognitive developmental issues which, although not standing alone, would be the impediment to emancipation. But certainly it is a factor in a very critical component of the emancipation decision which is the child's pursuit of higher education.

 

. . . .

I'm satisfied his pursuit [of a higher education] is legitimate.

Because the court determined that the older son was not emancipated, it denied plaintiff's request to recalculate child support for the younger son and found no need to require defendant to submit an updated CIS.

Without conducting a plenary hearing, the courtdenied plaintiff's request to emancipate his older son. The findings as to the older son's disability are not supported by the limited record provided. The parties substantially disagreed as to the extent of their older son's disability, the effect of that disability on his capacity to succeed at pursuing a higher education, whether his attendance at school was only part-time, and whether he worked full-time at the supermarket. The court also failed to address the provisions of the PSA which called for emancipation if a child ceased attending school full-time because of full-time employment or for reasons other than serious health problems. Resolution of these issues requires a plenary hearing and likely expert testimony regarding the extent and impact of the older son's learning disability.

In sum, the court's determination that the older son was not emancipated is not supported by the limited record provided. We are therefore unable to determine whether the judge abused his discretion or not.

Although the court made no mention of the older son's receipt of SSI benefits in his decision, it did not err in essentially denying plaintiff a credit for those payments. The child support guidelines "prohibit SSI benefits received by the child from being deducted from a support award. The prohibition against crediting a child's SSI benefits against a parent's support obligation is accomplished by excluding SSI benefits from the definition of 'government benefits' that are to be deducted from the support award." Gifford v. Benjamin, 383 N.J. Super. 516, 520-21 (App. Div. 2006).

It is unclear from the record whether the other social security payments the son receives are Social Security Disability (SSD) payments. If so, plaintiff may be entitled to a credit for those payments on his child support obligation. See Herd v. Herd, 307 N.J. Super. 501, 503 (1998); Burns v. Edwards, 367 N.J. Super. 29, 36 (App. Div. 2004). This issue should also be resolved at the plenary hearing on remand.

To the extent that we have not specifically addressed any of defendant's arguments, we find them to be without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded. We do not retain jurisdiction.

1 In 2009, plaintiff received $73,159.07 upon liquidating this account.

2 According to a January 12, 2010, "Direct Payment Inquiry Letter" sent to defendant by the Monmouth County Probation Division, Child Support Enforcement, the arrears at that time were calculated to be $108,272.68.

3 The record includes evidence of plaintiff's numerous attempts to secure employment from December 2005 through November 2009, when he secured a temporary consulting job earning $45 per hour, or $90,000 per year.

4 See N.J.A.C. 10:110-17.1; 42 U.S.C.A. 664; 45 C.F.R. 303.72.

5 Elsewhere in the record she asserted that he owed more than $400,000.

6 See Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992).

7 Aside from capitalization and the deletion of the older son's name from Point III, the point headings are reproduced as written in plaintiff's brief.