CUMBERLAND COUNTY BOARD OF SOCIAL SERVICES ON BEHALF OF CATHERINE WRIGHT v. RICARDO DEJESUS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4592-04T34592-04T3

CUMBERLAND COUNTY BOARD OF

SOCIAL SERVICES ON BEHALF

OF CATHERINE WRIGHT,

Plaintiff-Appellant,

v.

RICARDO DEJESUS,

Defendant-Respondent.

 

Submitted December 21, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FD-06-0130-00.

Jose B. Velez, attorney for appellant.

Eli B. Kuhnreich, attorney for respondent.

PER CURIAM

On October 5, 1999, a child support judgment was docketed against defendant Ricardo DeJesus pursuant to N.J.S.A. 2A:17-56.23a. The issue on appeal is how much of the proceeds from three workers' compensation actions DeJesus has settled must be applied against the judgment. The Family Part judge, in a January 6, 2005 order, concluded that the judgment should be reduced by an amount calculated "in accordance with the procedures utilized by the New Jersey Division of Workers Compensation [Division]." Appellant, the Cumberland County Board of Social Services (Cumberland County), challenges that decision. It claims that the Division's procedures, which call for sixty-five percent of the settlement proceeds to be used to reduce the child support lien, is contrary to the express language of N.J.S.A. 2A:17-56.23b; that statute provides, inter alia, that the child support lien shall have priority over all other levies and garnishments against the net proceeds of any workers' compensation settlement, where the amount to be distributed is in excess of $2000.

We conclude that whether the Division's procedure violates the express provisions of N.J.S.A. 2A:17-56.23b is a question in the first instance for the Division. Consequently, we reverse the decision of the Family Part, stay distribution of the proceeds, and transfer the case to the Division for further proceedings consistent with this opinion.

Catherine Wright, the maternal grandmother of DeJesus's three minor children, was approved in Cumberland County for public assistance for herself and the children. An order for child support issued on August 26, 1999, required defendant to pay $72 per week. As of October 4, 2004, he owed $15,899.93.

Meanwhile, DeJesus filed three workers' compensation petitions. Those cases were settled. One claim would be dismissed; in another, he would receive $7565; in the third, he would receive $6594, less a substantial Medicaid lien. The dispute centers around how much of the settlement should be applied to reduce the child support lien.

Defendant claims the allocation is governed by the provisions of the Consumer Credit Protection Act, 15 U.S.C. 1673, which sets maximum amounts that can be deducted from aggregate disposable earnings pursuant to any support order. He argues that that federal statute limits the net award payable for child support arrears to sixty-five percent of his recovery, citing to 15 U.S.C.A. 1673(a),(b)(2)(B). In support of his argument, defendant has submitted a letter from Christopher L. Leavey, Administrator Workers' Compensation, which says, in pertinent part,

[a]s the Supreme Court was given the lead role in interpreting and effectuating [N.J.S.A. 2A:17-56.23b], . . . the Administrative Office of the Courts (AOC) conducted the initial research and drafted guidelines for our review. The AOC advised us that, after researching the matter, it had determined that 15 U.S.C. 1673 was applicable to workers' compensation awards. We concurred in that determination.

Cumberland County challenges that procedure. The county relies on the language of N.J.S.A. 2A:17-56.23b, which says, in pertinent part,

A judgment for child support . . . docketed with the Clerk of the Superior Court shall be a lien against the net proceeds of any settlement negotiated prior or subsequent to the filing of a lawsuit . . . or workers' compensation award. The lien shall have priority over all other levies . . . against the net proceeds of any settlement negotiated prior or subsequent to the filing of a lawsuit, . . . or workers' compensation award unless otherwise provided by the Superior Court, Chancery Division, Family Part.

[N]et proceeds means any amount of money, in excess of $2000, payable to the prevailing party . . . .

Based on the plain language of this statute, Cumberland County argues it is entitled to so much of the proceeds from the settlement as are necessary to reduce the child support lien to $2000. In a letter to the Family Part dated March 22, 2005, the county's attorney explained its position:

I would further like to reemphasize that N.J.S.A. 2A:17-56.23b was enacted on August 14, 2000. It is a fairly new statute. Prior to August 14, 2000 there was no statutory scheme to deal with a number of recoveries, including workers' compensation awards. It is our position that the workers' compensation distribution formula and a scheme may have been applicable prior to the enactment of N.J.S.A. 2A:17-56.23b. However, N.J.S.A. 2A:17-56.23b supersedes any such distribution scheme.

Given that the trial judge's order required that payment toward the child support judgment be made in accordance with the Division's procedures, and it is those procedures that Cumberland County challenges as being in conflict with N.J.S.A. 2A:17-56.23b, the issue must be resolved first by the Division.

Consequently, we transfer the case to the Division for further proceedings. We reverse the order on appeal and stay distribution of the settlement funds pending a decision by the Division. Because the AOC has apparently drafted guidelines for the distribution of the funds, notice is to be provided to the AOC, which should be given an opportunity to intervene in the Division's proceedings.

 
Reversed and transferred to the Workers' Compensation Division. We do not retain jurisdiction.

Those guidelines are not part of the record on appeal.

(continued)

(continued)

5

A-4592-04T3

January 9, 2006