MARGARET L. ANDREKO v. RICHARD WILHELM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARGARET L. ANDREKO,

Plaintiff-Respondent,

v.

RICHARD WILHELM,

Defendant-Appellant.

______________________________

October 29, 2013

 

Submitted July 9, 2013 Decided

 

Before Judges Ostrer and Hayden.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-0974-04.

 

Richard Wilhelm, appellant pro se.

 

Respondent has not filed a brief.

PER CURIAM

Defendant Richard Wilhelm appeals from a June 27, 2012, order that granted plaintiff's request to enforce, and denied defendant's request to modify, provisions of a previous child support order governing the parties' respective responsibilities for their three children's unreimbursed medical expenses. We remand the matter to the Family Part for further proceedings.

We discern the following from the record. The parties, who never married, are the parents of three sons, Michael, born in 1986; Matthew, born in 1988; and Mark, in 1992. According to a January 3, 2007, child support order, Matthew was emancipated effective November 29, 2006, and child support pursuant to the Child Support Guidelines continued for the other two children.1 Defendant also appears to indicate that Michael was emancipated later in 2007, although he does not provide a copy of the order.

On June 22, 2011, plaintiff obtained an order by default requiring defendant to place Michael and Matthew on his health insurance within twenty days "as allowed by his insurance under the Affordable Care Act (Age 26)."2 The order reflected that defendant did not appear, but left blank the sections of the order for findings regarding "service upon which this order is based" and that he was "properly served to appear for a hearing" on the specific date. There was no explicit mention in the order of either son's prior emancipation. The order required defendant to pay seventy-seven percent of unreimbursed medical expenses for the three sons after plaintiff incurred $250 annually. The order did not clearly specify that the $250 obligation was for each child. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A, 9 (2013).

Defendant asserted that he did not appear for the hearing on that application because he did not receive notice. However, he acknowledged that he was informed of the order in the middle of July 2011. He did not seek to vacate the order, nor did he file an appeal. Instead, he complied by obtaining health insurance for the two children.

In April 2012, defendant received a request from plaintiff seeking payment of his seventy-seven percent share of a $3465.15 unreimbursed balance owed to a hospital that treated Matthew in December 2011. Defendant attempted to contact the hospital to establish a payment plan but was denied information because he did not have authorization from his son to speak to the provider about the account. After defendant failed to reimburse plaintiff for the amount requested, plaintiff filed a motion to compel defendant to pay his seventy-seven percent share of the unreimbursed medical expenses.3

Defendant filed a cross-motion to emancipate all three sons, then aged 26, 23 and 20, and to terminate all support responsibilities for them. Defendant also sought an order vacating the June 22, 2011, order pursuant to Rule 4:50-1, based on plaintiff's alleged failure to properly serve him.

However, defendant's cross-motion was filed the day before the return date of plaintiff's motion. Defendant argues he was late because he had been in the hospital.

On June 27, 2012, the parties appeared before a child support hearing officer (CSHO), who declined to consider defendant's cross-motion because it was untimely filed. At the outset of the hearing, the CSHO mistakenly believed plaintiff sought reimbursement of medical bills for Mark the youngest child and, apparently, the only unemancipated child. The CSHO referred to Mark as "the only child that remains on this case."

Plaintiff then clarified that the June 22, 2011, order required defendant to obtain insurance for Matthew and Michael, and she sought reimbursement of defendant's share of Matthew's unreimbursed medical bills. Plaintiff asserted there was a $3465 balance owed to a treating hospital, $100 to a referring hospital, and $611 to an ambulance company.4 Defendant argued that Matthew was emancipated; plaintiff did not promptly submit the treating hospital's bill to him, and he did not receive the two smaller bills at all; defendant was denied access to Matthew's billing records because he did not sign a HIPAA5 release; and plaintiff had failed to demonstrate she paid the first $250 of unreimbursed expenses.

The CSHO rejected plaintiff's claim that she paid the $250, because she presented no supporting documentation. She also accepted that defendant had not received the smaller bills as plaintiff did not present persuasive proof of mailing. The CSHO rejected defendant's other arguments, and ordered defendant to pay $2418, which equaled seventy-seven percent of the amount due to the hospital (.77 times $3465 = $2668), minus $250 ($2668 - $250 = $2418).6 The CSHO also required defendant to pay his share of the two smaller bills a $611 ambulance bill, and a $100 bill from the referring hospital. The final order reflected that defendant had a credit in his child support account of $532.74 as of June 27, 2012, but the CSHO did not apply that against the amount due for medical expenses.7

The order stated:

Both parties appeared. Plaintiff's request to enforce medical bills is granted in part. Court order dated June 22, 2011 indicates the parties['] responsibility for unreimbursed medical expenses for the parties['] children Mark and Matthew. In accordance with that Order, the Defendant is obligated to pay $2,418.16 (77% of $3,465.15-$250.00 as plaintiff failed to provide proof of the first $250.00 per year payment she made for her sons' unreimbursed medical expenses). A $2418.16 lump sum payment shall be paid on the above date or a bench warrant shall issue. The bills for Robert Wood Johnson Statement date[d] 4.29.2012 in the amount of $100.00 and the bill from Always Caring Medical Transportation dated 1.20.2012 in the amount of $611.00 were provided to the Defendant today. Should Plaintiff not receive Defendants' share of responsibility for same; she may file once again to address those two bills. Defendants' application filed this morning will not be addressed today as he failed to timely file same in accordance with the Rules of Court.

 

The CSHO obtained both parties' signatures on the order by means of an electronic signature pad. Defendant did not seek an immediate de novo appeal before a Superior Court judge. See R. 5:25-3(d)(3).8 However, there is no evidence in the hearing record that the CSHO advised defendant that he had a right to an immediate appeal to a Superior Court judge that day. Cf. New Jersey Judiciary, Child Support Hearing Officer Program Operations Manual (Manual), 1005.3, 1205.3 (2009) (stating that "CSHO must inform the litigants of their right to object or 'appeal' the CSHO's decision" and explain "how they may exercise that right").

In his notice of appeal, defendant identified the part of the order being appealed as "IN SECTION 23: 'THE DEFENDANT IS OBLIGATED TO PAY.'" Defendant argues that he should be absolved of all support obligations for Matthew, as he was emancipated as of November 29, 2006, and remains outside his parents' "sphere of influence." Even if responsible for a share of unreimbursed medical expenses, defendant argues that his responsibility for the ambulance bill should be reduced because the provider failed to obtain pre-certification from his insurer, and therefore the provider should bear an increased cost.9 He asks the court to stay enforcement of the June 27, 2012, order pending resolution of "upcoming proceedings" in which he intends to seek his sons' emancipation.

Based on our review of the defendant's arguments in light of the record and applicable legal principles, we remand to the Superior Court, Family Part, to consider, as a threshold matter, after plaintiff has had the opportunity to file a written response, defendant's motion pursuant to Rule 4:50-1 to vacate or modify the June 27, 2011, order; and, if necessary, to consider issues related to defendant's reimbursement obligation.

We note at the outset that defendant did not avail himself of the opportunity to seek a de novo review by a judge of the Superior Court, Family Part. It is unclear whether he bypassed that review because he was unaware of it. The record does not reflect that the CSHO advised defendant of his appeal right. Given that uncertainty, we do not address whether a defendant should be barred from raising issues on appeal that he could have raised before the Family Part judge. Compare Neider v. Royal Indem. Ins. Co., 62 N.J.229, 234 (1973) (holding that appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation was available), withR.5:25-3(d)(3) (stating that orders entered as a result of a CSHO's recommendation "shall be recognized as a final order of the Superior Court. . . . [and] may be appealed to the Appellate Division" consistent with procedures governing appeals); Manual, supra, at 1214 (stating that the CSHO's record should be preserved since the CSHO's recommendation "once ratified may be the only proceeding subject to review").

Although the CSHO did not err in declining to consider defendant's cross-motion, given its late filing, we nonetheless conclude that it should be considered in conjunction with plaintiff's motion to enforce her rights under the challenged June 2011 order. Defendant argues the order is void because he was not properly served. He also argues, on the merits, there was no legal basis to impose a duty upon him to add his emancipated sons to his insurance, and to bear a share of unreimbursed expenses.

We note that federal law bars insurers from preventing willing parents from adding a child under twenty-six whether dependent or non-dependent to family coverage. See Patient Protection and Affordable Care Act, P.L. 111-148, 2714, 124 Stat. 119, 132 (2010) (codified at 42 U.S.C.A. 300gg-14(a)) (stating that a health insurer offering group or individual coverage that provides support to a dependent child "shall continue to make such coverage available for an adult child (who is not married) until the child turns 26 years of age"); 45 C.F.R. 147.120 (2013) (stating that an insurer may require proof of a child-parent relationship, and that the child is under the age of 26, but may not consider the child's financial dependency, residency, student status, or employment status). Insurers may not surcharge a parent for adding a child under twenty-six, unless the charge applies to all children, regardless of age. 75 Fed. Reg. 27122, 27124 (May 13, 2010).

However, no basis is evident in the record for the June 2011 order (1) requiring defendant to add his two emancipated sons to his coverage; and (2) requiring defendant to bear a share of the sons' unreimbursed medical expenses. There also is no basis in the record for unemancipating Matthew, nor does the June 2011 order expressly provide that he is unemancipated. See Sakovitz v. Sakovitz, 178 N.J. Super. 623, 627-28 (App. Div. 1981) (recognizing that there may be circumstances where a previously emancipated child may be unemancipated). Were the court to vacate that portion of the June 2011 order compelling defendant to bear a share of his emancipated sons' unreimbursed medical expenses, then the June 2012 order compelling him to pay would be vacated as well.

We also remand for the presentation of additional evidence and further fact finding with regard to the unreimbursed expenses, if the trial court denies defendant's Rule 4:50-1 motion and confirms his obligation to bear a seventy-seven percent share of Matthew's unreimbursed medical expenses. The court should determine what, if any, portion of the $611 ambulance bill was reimbursed or should have been reimbursed by insurance. Moreover, the $250 deduction should be made against the total unreimbursed medical expenses, not defendant's proportionate share.

Remanded for further proceedings. We do not retain jurisdiction.

1 The order included in the record was signed by the child support hearing officer, but not the judge.

2 See 42 U.S.C.A. 300gg-14(a).

3 Although plaintiff's motion referred to an August 16, 2011, order, it is apparent she sought enforcement of the June 22, 2011, order.

4 The record does not include the hospital bill; instead, it includes a collection agency's claim for the hospital's service in 2011. Also included is the bill from the ambulance company, without any reflection of an insurance payment.

5 Health Insurance Portability and Accountability Act, P.L. 104-191, 110 Stat. 1936 (1996).

6 The CSHO's calculation did not comply with the order, which required deduction of the $250 first, then allocation of the remaining unreimbursed expenses. Assuming defendant was responsible for unreimbursed medical expenses, the obligation should have been $2475, which is seventy-seven percent of $3215 ($3465 - $250 = $3215).

7 The order stated, at paragraph 9, "ARREARS indicated in the records of the Probation Division are $ -532.74 as of 06/27/2012."

8 The record does not include a copy of the CSHO's recommended order, as signed by a judge.

9 He also contests a $75 radiology bill from 2011 that was not presented at the hearing, but which plaintiff included in a request for payment apparently sent to him after entry of the June 2012 order. Also included in that request was a $265 physician's bill that reflected no insurance payment. As these bills were not presented to the CSHO and are not the subject of the order on appeal, we do not address them.