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October 9, 2015


Submitted September 24, 2015 Decided

Before Judges Ostrer and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-001157-06.

Robert W. Mayer, attorney for appellant.

The Nowicki Law Firm, LLC, attorneys for respondent (Carole Lynn Nowicki, on the brief).


In this post-judgment matrimonial matter, plaintiff appeals from the January 16, 2014 order of the Family Part dismissing his motion for modification of his child support obligation. Plaintiff also appeals from the court's April 2, 2014 order denying his motion for reconsideration. We affirm.

The parties were married in November 2004, and they have two children. The parties separated in October 2005 after defendant obtained a Final Restraining Order against plaintiff. The parties were divorced in May 2008, and defendant was designated the parent of primary residence for the children. Pursuant to the Final Dual Judgment of Divorce, plaintiff was required to pay defendant $305 per week in child support. By September 2001, plaintiff was $18,675.45 in arrears on his child support obligation.

In March 2012, plaintiff filed a motion to modify or terminate his child support and to resume regular visitation with the children. In support of his motion for modification of child support, plaintiff alleged he was disabled1 and that his sole source of income was $705.25 per month in federal Supplemental Security Income (SSI) benefits. The only evidence plaintiff produced in support of his claim that he was disabled was a September 3, 2011 notice from the Social Security Administration stating the amount of his monthly SSI payment. This notice did not contain any information concerning the nature or extent of plaintiff's disability. In a certification accompanying his motion, however, plaintiff stated, "I require a complete ankle replacement and have other physical and mental ailments."

Defendant opposed plaintiff's motion, and requested that the court order defendant to undergo psychological and substance abuse evaluations before considering his motion to terminate child support or resume parenting time. In her certification, defendant noted that plaintiff alleged he was suffering from "physical and mental ailments" that contributed to his disability. Therefore, defendant asserted that the evaluations she requested were necessary to determine the nature of these alleged disabling conditions. Defendant also argued that the evaluations were relevant to plaintiff's request to resume parenting time.

On May 11, 2012, Judge James M. DeMarzo suspended plaintiff's child support obligations pending a plenary hearing on the issue of whether plaintiff's alleged disability prevented him from earning any additional income. The judge ordered the parties to exchange discovery concerning plaintiff's "income and/or disability." The judge also directed plaintiff to "submit to psychological, risk assessment, drug, and alcohol evaluations" to be conducted by evaluators agreed upon by the parties. The order further stated: "[S]hould at the hearing it be found that [p]laintiff could have been employed, is perpetrating a fraud, or for any other reason the [c]ourt may find meritorious and supported by the law, child support may be reinstated in full retroactive to the date of this [o]rder." The judge also permitted plaintiff to have supervised parenting time with the children.

Plaintiff did not undergo the evaluations or provide the discovery required by the May 11, 2012 order. Following a case management conference, Judge DeMarzo issued an order on October 2, 2012, directing that plaintiff "comply with all discovery demands of . . . [d]efendant in a timely manner."2

In spite of this order, plaintiff did not submit to the evaluations and, as a result, the plenary hearing on his motion to modify his child support obligation and to resume parenting time could not proceed. In August 2013, defendant filed a motion to enforce the May 11, and October 2, 2012 orders. In response, plaintiff asserted that, although he had health insurance, he could not find a provider willing to perform the required evaluations and he lacked the funds to pay for them on his own. He asked for additional time to produce the evaluations.

On January 16, 2014, Judge Maenza granted defendant's enforcement motion and dismissed plaintiff's "application . . . for post[-]judgment modification of support and other relief . . . ." In a written statement of reasons appended to his order, the judge stated that plaintiff had "obtained significant financial relief contingent upon his obtaining the assessments." However, plaintiff failed to undergo the evaluations in the twenty months since the May 11, 2012 order was issued. Based upon plaintiff's "complete noncompliance" with the May 11, 2012 order and the October 2, 2012 enforcement order, the judge dismissed plaintiff's motion for modification of child support.3

Plaintiff filed a motion for reconsideration, which the judge denied on April 2, 2014. In his statement of reasons accompanying this order, Judge Maenza stated that plaintiff did not raise any new arguments or facts in support of his motion and, therefore, reconsideration was not warranted. This appeal followed.

On appeal, plaintiff argues that the judge erred in enforcing the May 11, and October 2, 2012 orders. He asserts that the psychological, risk assessment, and substance abuse evaluations required by the May 11, 2012 order were only relevant to his request to resume parenting time and, therefore, his request for a child support modification should not have been dismissed when he failed to undergo these evaluations. We disagree.

The scope of our review of the Family Part's orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Id. at 413. Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we 'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We will only reverse the judge's decision when it is necessary to "'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

Rule 1:10-3 "provide[s] a mechanism, coercive in nature, to afford relief to a litigant who has not received what a Court Order or Judgment entitles that litigant to receive." D'Atria v. D'Atria, 242 N.J. Super. 392, 407 (Ch. Div. 1990).4 "The particular manner in which compliance may be sought is left to the court's sound discretion." Bd. of Educ. of Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501, 509 (Ch. Div. 2001).

Applying these standards, we discern no basis for disturbing the judge's decision to dismiss plaintiff's request for modification of his child support obligation after he failed to submit to the required psychological, risk assessment, and substance abuse evaluations. A parent's receipt of means-tested benefits, such as SSI, does not in and of itself require a suspension or reduction of a child support obligation. Rather, the court must find that the parent receives means-tested benefits and is unable to earn additional income, such that additional income cannot be imputed to the parent. Crespo v. Crespo, 395 N.J. Super. 190, 194-95 (App. Div. 2007); Burns v. Edwards, 367 N.J. Super. 29, 50 (App. Div. 2004).

In his motion for modification of child support, plaintiff did not present any supporting documentation concerning the nature or extent of his disability or whether he was capable of earning additional income. Thus, Judge DeMarzo properly ordered plaintiff to submit evidence supporting his claim that he was permanently and totally disabled so that a hearing on his ability to pay could be held. When plaintiff continually failed for over twenty months to obtain the evaluations Judge DeMarzo ordered, Judge Maenza properly dismissed plaintiff's modification motion because plaintiff had not demonstrated that he was unable to earn additional income. See Crespo, supra, 395 N.J. Super. at 194-95; Burns, supra, 367 N.J. Super. at 50.

Plaintiff argues that the psychological and substance abuse evaluations are only relevant to his request to resume parenting time and, therefore, Judge Maenza mistakenly exercised his discretion by dismissing his motion for termination of his child support obligation when he failed to undergo them. We disagree. In his motion to modify support, plaintiff expressly stated that he was disabled because he "require[d] a complete ankle replacement and [had] other physical and mental ailments." (emphasis added). Thus, plaintiff's psychological health was directly relevant to his disability claim and, when he failed to submit to these evaluations, Judge Maenza properly dismissed plaintiff's modification motion.5

Finally, we note that the January 16, 2014 order does not expressly state that plaintiff's modification motion was dismissed with prejudice. Thus, we perceive that the judge intended the dismissal to be without prejudice. R. 4:37-2(a). Accordingly, if plaintiff obtains sufficient documentary and medical evidence in the future of his alleged disability and inability to earn income apart from SSI, he would be permitted to file a new motion seeking modification of support.


1 Prior to his alleged disability, plaintiff worked as a contractor.

2 Thereafter, the matter was reassigned to Judge Philip J. Maenza.

3 The judge reinstated plaintiff's child support obligation effective May 11, 2012. The judge also permitted plaintiff to continue to have supervised parenting time with the children.

4 The D'Atria opinion refers to Rule 1:10-5, but that rule has been amended and re-designated as Rule 1:10-3. Pressler & Verniero, Current N.J. Court Rules, note on R. 1:10-3 (2015).

5 We also conclude that the judge properly exercised his discretion in denying plaintiff's motion for reconsideration. D'Atria, supra, 242 N.J. Super. at 401.