ROBERT CROSS v. COUNTY OF ESSEX et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0610-05T50610-05T5

ROBERT CROSS,

Plaintiff-Appellant,

v.

COUNTY OF ESSEX and

THE ESSEX VICINAGE

PROBATION DIVISION,

Defendants-Respondents.

______________________________________________________________

 

Argued December 5, 2006 - Decided January 29, 2007

Before Judges Kestin and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6149-04.

Robert M. Rich argued the cause for appellant.

Matthew Sapienza, Deputy Attorney General argued the cause for respondents (Steven Rabner, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Sapienza, on the brief).

PER CURIAM

Plaintiff Robert Cross appeals from an order dismissing with prejudice his complaint filed under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, for failure to state a claim upon which relief can be granted. R. 4:6-2(e). Cross sought damages suffered as a result of the alleged negligence of defendant, Essex Vicinage Probation Division (Essex), which Cross asserts "failed to make proper investigation" and "proper disposition of [child support] funds" paid on behalf of Cross. We affirm.

Cross is obligated to pay child support for two children born in two distinct relationships as a result of two different state court matters; one child resides in Hudson County, and the other resides in Portsmouth, Virginia. In the former matter, Cross pays $88 bi-weekly for the Hudson County beneficiary, pursuant to an order entered by the Family Part, which required an attachment of Cross's wages. Cross received benefits as a disabled federal employee. So the attachment order was sent to the United States Department of Labor (USDOL) as Cross's employer.

In the latter case, Cross asserts he was ordered to pay $139 bi-weekly, based upon an order issued by the Circuit Court in Virginia. It is not disputed that this order was never presented to Essex. However, the order presumably was provided to the USDOL because a total of $227 bi-weekly was deducted from Cross's funds by USDOL. USDOL sent all monies to Essex.

On May 1, 2003, after Cross appeared before the Circuit Court of the City of Portsmouth, Virginia, he was incarcerated for more than 120 days upon a finding of contempt for his failure to satisfy the ordered child support obligation. Cross was released when he borrowed and paid $15,000 toward the sums due under the Virginia order. Thereafter, Cross determined all monies that had been deducted from his disability pay by USDOL were received by Essex and remitted for the benefit of the child in Hudson County, notwithstanding the fact that the amount greatly exceeded the ordered obligation.

On appeal, Cross argues Essex had a duty to ascertain why it had been receiving remittances that substantially exceeded the ordered Hudson County child support obligation, and to return any excess funds to Cross, rather than distribute them to the Hudson County obligee.

When a motion challenging the legal sufficiency of a complaint is filed, the plaintiff is entitled to a liberal interpretation and to be given the benefit of all favorable inferences that reasonably may be drawn. Stubaus v. Whitman, 339 N.J. Super. 38, 52 (App. Div. 2001), certif. denied, 171 N.J. 442, (2002); Burg v. State, 147 N.J. Super. 316, 319-20 (App. Div.), certif. denied, 75 N.J. 11 (1977). "Our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," after an in depth search made with "liberality," to discern whether a cause of action is found, even from "an obscure statement of claim." Printing Mart- Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989); see also Rieder v. State, Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987).

Cross contends he suffered damages due to Essex's negligence, a cause of action requiring proof that "a defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach." Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005); Gilleski v. Comty. Med. Ctr., 336 N.J. Super. 646, 652 (App. Div. 2001). Absent a legal duty of care no recovery for negligence is warranted. Dwyer v. Sky Line Apts., 123 N.J, Super. 48, 52 (App. Div.), aff'd, 63 N.J. 577 (1973); Krauth v. Geller, 54 N.J. Super. 442, 453 (App. Div. 1959), aff'd, 31 N.J. 270 (1960).

The existence of a duty of care is a matter of law. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996);
Longo v. Aprile, 374 N.J. Super. 469, 472 (App. Div. 2005); Rogers v. Bree, 329 N.J. Super. 197, 201 (App. Div. 2000). Whether a duty exists depends upon the weighing and balancing of a number of factors, including:

the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.

[J.S. v. R.T.H., 155 N.J. 330, 337 (1998).]

In "weighing and balancing" the factors, it must be emphasized that it is not enough to show defendant's "carelessness" may have caused plaintiff's injury. Weinberg v. Dinger, 106 N.J. 469, 484-85 (1987); Kelly, supra, 96 N.J. at 544; Taylor by Taylor v. Cutler, 306 N.J. Super. 37, 42 (App. Div. 1997), aff'd in part, 157 N.J. 525 (1999). The inquiry must include the element of forseeability, that is, whether the injury to plaintiff would have been reasonably anticipated by defendant's actions. Taylor by Taylor, supra, 306 N.J. Super. at 42-43. A related question is whether plaintiff lacked the ability or opportunity to avoid the harm. See Kuehn v. Pub Zone, 364 N.J. Super. 301, 310 (App. Div. 2003) (citing J.S. v. R.T.H., supra, 155 N.J. at 337. Finally, the public interest concern centers on whether plaintiff's interest, along with those similarly situated, is entitled to legal protection against defendant's conduct. Weinberg, supra, 106 N.J. at 481; Portee v. Jaffee, 84 N.J. 88, 101 (1980) (citing Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583 (1962)).

Essex's role in the collection and distribution of monies ordered to be paid by a child support obligor is set forth in the provisions of the New Jersey Child Support Program Improvement Act, N.J.S.A. 2A:17-56.7a to -56.25 (the Act). The Act implements the "requirements which the State must adopt under the federal 'Personal Responsibility and Work Opportunity Reconciliation Act of 1996,'" Assembly Judiciary Committee Statement to Assembly No. 1645, and gives the Department of Human Services broad powers to enforce child support orders. Through the use of wage or other income attachments, N.J.S.A. 2A:17-56.8, the Act's provisions enforce the timely collection of child support to promote the best interests of all families with children. N.J.S.A. 2A:17-56.7b(b); see also Pryce v. Scharff, 384 N.J. Super. 197, 206 (App. Div. 2006).

A support account, administered by the Probation Division, is established and recorded on the Family Court's Automated Child Support Enforcement System (ACSES), R. 5:7-4. The status of an account is accessible by obligors and obligees through an assigned probation officer or the automated telephone service system. The Probation Division of the County responsible for monitoring and enforcing compliance with the child support order, in this case, Essex, initiates an income withholding against the obligor's current and future income. R. 5:7-5. Identification of the account or accounts for which the funds are remitted is through a child support account number assigned to each case.

Rule 5:7-5(d) states in relevant part:

An employer or other source of income is not required to alter normal pay cycles to comply with the withholding but shall withhold and forward the required amount beginning with the first pay period that ends immediately after the notice is postmarked and each time the obligor is paid thereafter . . . . If the obligor has more than one support order subject to withholding, the employer or other source of income shall withhold the payments on a pro-rata basis.

[R. 5:7-5(d).]

After giving Cross "the benefit all favorable inferences," Stubaus, supra, 339 N.J. Super. at 52, when reviewing the allegations in his complaint, we determine he insufficiently states a cause of action for negligence against Essex, as no duty of care to discern the nature and beneficiary of additional monies mistakenly sent by Cross's employer exists. The only support obligation ordered withheld and payable through the Probation Division of Essex County, was the sum stated in the Hudson order, which was $88 bi-weekly. It is undisputed that Essex had no knowledge of the provisions in the Virginia order. Cross knew he was obligated to pay money to Virginia but never sought payment of that order through the Probation Division. R. 5:7-5(g). Somehow, the USDOL also knew to withhold additional funds. The employer's decision to remit all funds to Essex was not by request of Essex. The only support docket number to identify the application of those payments apparently was for the benefit of the Hudson County child. Essex had no responsibility to determine why extra monies were sent; its defined responsibility was to collect and transmit the child support. See R. 5:7-5.

We conclude that the imposition of a duty on the Probation Divisions of this State, as proffered by Cross, requiring the extension of liability in the event of the misapplication of unidentified child support monies received, would not only be unfair but also would thwart the legislative purpose that the statute requiring collection of child support monies was designed to address. Courts should be wary of imposing unreasonable burdens such as that advanced by Cross. Judge Merkelbach properly dismissed the complaint under Rule 4:6-2(e).

Affirmed.

 

In the caption and throughout the record, the name of this defendant is misstated. The correct name of defendant is used in this decision.

All references in this opinion to "Essex" refer solely to the Essex Vicinage Probation Division, which is the remaining defendant. All claims against defendant Essex County were dismissed early in the litigation.

The orders are not included in the record on appeal.

(continued)

(continued)

9

A-0610-05T5

January 29, 2007