EVELYN L. BARRETO v. JUAN BRYANT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EVELYN L. BARRETO,

Plaintiff-Respondent,

v.

JUAN BRYANT,

Defendant-Appellant.

________________________________________________

October 6, 2014

Submitted September 16, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Family Division, Essex County, Docket No. FD-07-4944-11.

Juan Bryant, appellant, pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Juan Bryant appeals from the Family Part's order of April 22, 2013, that denied his pro se motion for modification of a prior order setting child support for a child he fathered with plaintiff, Evelyn L. Barreto. The parties have represented themselves throughout the litigation in the Family Part, and defendant is a self-represented litigant on appeal. Plaintiff failed to file any brief.

It appears from the record that defendant's support obligation was first set by order entered February 12, 2012, the result of plaintiff's complaint seeking the fixing of support for their child who was born April 15, 2011. Plaintiff appeared before the hearing officer, and defendant did not. The judge set defendant's weekly support obligation at $153, fixed arrears at $5049, and ordered their payment at the weekly rate of $30.

The order further provided that the support obligations were calculated in accordance with the Guidelines, see Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2014), based upon defendant's imputed yearly income of $57,750, calculated by use of the "wage compendium for a marketing manager." The order also provided that defendant's wages from Extra Storage Space, located in Downington, Pennyslvania, would be subject to garnishment. Additionally, the order set forth that defendant had only worked there for two years, so the judge applied "the lower 10% salary[,]" and that defendant had been served "by Parent Locator," but failed to appear. 1

It appears that defendant first sought modification in late 2012, resulting in a hearing before the hearing officer ("H.O.") on January 11, 2013. Plaintiff again appeared, and defendant appeared by telephone. We have not been provided with defendant's motion, but we gather he asserted entitlement to a downward modification based upon changed financial circumstances. A second judge entered an order dated January 11, 2013, that denied the motion because defendant "failed to provide sufficient proof of a significant and permanent/long term change in circumstances." The judge continued the prior support order.

We gather that defendant soon filed another motion for downward modification. In support, he apparently furnished his W-2 from 2012, demonstrating that his gross annual pay was actually $33,470.59, and a bank statement demonstrating a meager amount in his checking account. On March 13, 2013, a hearing was held before an H.O. Plaintiff did not appear, having just faxed a travel itinerary indicating she was outside the state; defendant appeared by phone. He objected to any adjournment, noting that plaintiff had filed no opposition, and her travel itinerary had just been forwarded. Defendant had also furnished an unsigned letter from his employer, which the H.O. noted but did not consider.2

The H.O. recommended an adjournment, and a third judge entered an order on March 14, 2013, carrying defendant's motion to another date. The order specifically provided, "defendant [was] allowed to appear by telephone" at the next hearing if he filed his supporting documentation in a timely fashion, including a signed letter from his employer.3

The motion was listed for April 22, 2013. Defendant filed a signed letter from his employer's "District Manager," dated March 22, 2013, that indicated defendant's wages had been reduced to minimum wage, as a result of the company s downsizing. It further provided that the change was "out of [defendant's] control," and that while defendant remained a "fulltime [sic] employee," his wages had decreased.
According to the district manager, this was "a long[-]term permanent change" effective as of October 2012.

The transcript of the hearing before a different HO on the return date of April 22, 2013, presents a surreal scenario. Plaintiff was present, and defendant did not physically appear. The H.O. asked the court clerk if defendant had requested to appear by telephone; the court clerk indicated that she did not have the file. The H.O. then denied defendant's motion, noting a similar motion had been denied in January, and that defendant lived in Bethlehem, Pennsylvania, only one hour away. She stated, "[W]e don't give telephonics for a little over an hour away." The H.O. recommended dismissal for, among other things, "lack of prosecution." She advised plaintiff to consult with court staff to see if "they can stop [defendant] from doing this."

The order of April 24, 2013, entered by a fourth different Family Part judge, indicated defendant's motion was denied because he failed to demonstrate "a change of circumstances since the motion was denied on January 11, 2013." It further provided that defendant "lives within [ninety] minutes of the court house and he should appear for court proceedings." The existing support order was continued. Defendant filed a timely appeal on June 5, 2013.

Defendant asserts numerous arguments as to the merits of his application for a downward modification, and, more importantly for our purposes, he contends that he was never contacted by phone for the April 22, 2013 hearing. Having considered those arguments, we are compelled to reverse the order under review and remand the matter to the Family Part for a hearing on defendant's motion.

It is axiomatic that self-represented litigants are accorded the same procedural due process rights as those represented by counsel. As we recently said, "[p]ro se litigants are not entitled to greater rights than litigants who are represented by counsel." Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014) (citing Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982)).

But we also recognized in Rubin - in concluding that a self-represented litigant was deprived of a meaningful opportunity to be heard due to a lack of understanding of motion practice - that it is "fundamental that the court system . . . protect the procedural rights of all litigants and to accord procedural due process to all litigants."

[Ibid. (quoting Rubin, supra, 188 N.J. Super. at 159).]

Our review of the record clearly demonstrates that defendant was not accorded a modicum of due process in the proceedings that resulted in the April 22, 2013 order. The prior order expressly provided that defendant could appear by phone; the H.O. took it upon herself to decide that defendant should have come to the courthouse because he lived in Bethlehem, Pennsylvania, apparently not far enough in her mind to have been accorded this accommodation.4

We recognize that the H.O. and the judge also concluded that defendant had failed to demonstrate a change of circumstances since the January hearing that denied a downward modification; however, defendant was specifically advised when the prior hearing was adjourned that he would have an opportunity to present his proofs on the return date if he provided a signed letter from his employer. He did so, but was denied the opportunity.

We hasten to add that we reach no conclusion about the merits of defendant's request. We only determine that he was not accorded his due process rights, and that he should have the opportunity for a full hearing in the Family Part.

Reversed and remanded to the Family Part for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Defendant asserts in his brief that he was never provided with proof that plaintiff s motion was actually served on him at his residence in Pennsylvania.

2 The unsigned letter is not in the appellate record.

3 The record reflects that defendant filed requests to appear by telephone in advance of the January and March 2013 hearings because of a lack of transportation. The request obviously were granted. See Memorandum from Glenn A. Grant, J.A.D., Acting Administrative Director of the Courts, to Assignment Judges and Trial Court Administrators, "Child Support Hearing Officer Program Standards Promulgation of Amended Standard 13 Appearance by Video or Telephone" (Aug. 23, 2013), http://infonet.courts.judiciary.state.nj.us/wps/wcm/connect/28c1f60040e3d2bc9e5dbe3e1e315645/Amended+Standard+13.pdf?MOD=AJPERES&CACHEID=28c1f60040e3d2bc9e5dbe3e1e315645 (authorizing use of telephone or video conference for child support hearings upon good cause and describing application procedure); Uniform Interstate Family Support Act, N.J.S.A. 2A:4-30.92 ("In a proceeding under this act, a tribunal of this State may permit a party or witness residing in another state to . . . testify by telephone . . . .").

4 An arbitrary rule denying telephonic or video conferences to all persons within a ninety minute drive presumes all parties have access to a private automobile, and is also inconsistent with Child Support Hearing Standard 13, which requires consideration of the particular circumstances presented by the party. Although "[m]erely being out of state does not . . . constitute a per se basis" for a telephonic or video conference, the standard includes "party out of state" as an example of a valid reason for such conferences, along with "serious illness or injury, extraordinary needs of a child or matters where a party may be subject to violence or for other good cause determined." Grant Memorandum, supra note 2, at 4. An arbitrary drive-time rule also undermines the policy of the standard. "The availability of video and telephonic conferencing expands the public's access to the courts and provides for fairness in court proceedings before the CSHO [Child Support Hearing Officer]." Ibid.