FRANK K. SASSO v. DIANE L. DUBINSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3158-04T23158-04T2

FRANK K. SASSO,

Defendant-Appellant,

v.

DIANE L. DUBINSKI,

Plaintiff-Respondent.

_____________________________

 

Submitted October 25, 2005 - Decided

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, FM-14-237-93.

Frank K. Sasso, appellant pro se.

Respondent Dubinski did not file a brief.

PER CURIAM

Plaintiff, Frank K. Sasso, appeals from the entry of an Order dated January 11, 2005, granting defendant's motion for reconsideration of a December 7, 2004, Order that reduced his child support. The January Order also required the payment by plaintiff of accumulated child support arrears and implicitly denied plaintiff's cross-application that "... the court dismiss arrearages."

When the parties were divorced on September 30, 1992, they resolved the parenting and support issues by a Property Settlement Agreement which vested residential custody of their child in defendant and set plaintiff's child support obligation at $125 per week. On October 11, 2004, plaintiff, who had fallen behind in his support payments, filed an application to "decrease child support payments ... [and dismiss] arrearages...." Defendant filed a cross-motion seeking modification of child support in accordance with the guidelines. Plaintiff's motion to reduce his support obligation suggested that he had become disabled and was receiving Social Security benefits. As a result of the cross-motions respecting support, Judge Zucker-Zarett reduced child support payments from $133 per week to $0 per week. The reduction of plaintiff's continuing support obligation was entered as a result of plaintiff's representation that he was receiving Social Security Income benefits as his only income. Those benefits may not be used as income when computing child support. See Burns v. Edwards, 367 N.J. Super. 29 (App. Div. 2004). Had the information provided to her been correct, the judge's decision to reduce the support would have also been correct.

The judge also denied plaintiff's application to dismiss arrears. The denial of the application to vacate those arrears was clearly correct. N.J.S.A. 2A:17-56.23a prohibits the reduction or elimination of child support arrears. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995)(The statute does not allow a "change of circumstances . . . [to be used] . . . as a basis to modify retroactively arrearages which already accrued under a child support order.") The judge lacked the legal authority to grant plaintiff's request.

Both parties sought reconsideration. On defendant's motion for reconsideration of the child support reduction, it became clear that plaintiff received Social Security Disability benefits, which are included in the income of a supporting parent for child support purposes, rather than the non-includible Social Security Income benefits as had been originally thought. The motion judge then recomputed plaintiff's support obligation using the Child Support Guidelines, into which she incorporated plaintiff's Social Security Disability payments. The child support obligation of $75 per week is appropriate and defendant does not make any coherent argument disputing that sum. Given the nature of plaintiff's benefits, the entry of the Order on reconsideration was correct.

 
Plaintiff has not appealed the amount of the arrears he was required to pay; rather he appeals the refusal to vacate the accumulated arrears. As we have noted, the motion judge lacked the authority to vacate accumulated arrears and her decision refusing to do so was not only correct, but compelled as well. Affirmed.

The parties were divorced by judgment entered September 30, 1992, in an action initiated by Diane L. Sasso. Although the Judgment of Divorce does not provide for resumption of her birth name, it appears that Ms. Sasso has assumed the name Diane L. Dubinski. After the entry of the Judgment of Divorce, there were applications, by each party, in the matrimonial action. However, in each application, Frank L. Sasso was designated "plaintiff" and Diane L. Dubinski was designated "defendant." For purposes of this opinion, we refer to Mr. Sasso as "plaintiff" and Ms. Dubinski as "defendant."

The Order from which the appeal is taken is dated January 11, 2004, but it was filed on January 11, 2005, and it is clear that the year was simply designated incorrectly.

We are unable to determine on this record why the support of $125 was increased to $133 but that increase does not affect our decision.

(continued)

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4

A-3158-04T2

November 10, 2005