DEIRDRE R. SCOTT v. MALANEY HILL

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1075-17T1

DEIRDRE R. SCOTT,

           Plaintiff-Respondent,

v.

MALANEY HILL,

     Defendant-Appellant.
________________________

                    Submitted September 13, 2018 – Decided October 10, 2018

                    Before Judges Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FD-07-7095-03.

                    Hegge & Confusione, LLC, attorneys for appellant
                    (Michael J. Confusione, of counsel and on the brief).

                    Law Office of Harriet Raghnal, attorneys for
                    respondent (April C. Bauknight, of counsel and on the
                    brief; Harriet E. Rahgnal, on the brief).

PER CURIAM
      Defendant Malaney Hill appeals from that portion of a September 21,

2017 Family Part order denying his motion for a credit against his child support

arrearages for claimed payments made toward his child support obligation.

Because we are convinced the court erred by determining  N.J.S.A. 2A:17-56.23a

barred its consideration of defendant's claim for a credit against certain child

support arrearages for payments he caused to be made to his child from his social

security retirement benefits, we vacate the court's order denying defendant's

credit request and remand for further proceedings on that issue, and affirm the

remaining portions of the order. 1




1
   We affirm those portions of the order modifying defendant's child support
obligation to $32 per week and requiring that his payments be made through
probation because he does not challenge those portions of the order on appeal.
An issue not briefed on appeal is deemed waived. Jefferson Loan Co. v. Session,
 397 N.J. Super. 520, 525 n.4 (App. Div. 2008). We also do not address plaintiff's
contention that the court erred by modifying defendant's child support obligation
without requiring a forensic audit of defendant's finances, and by failing to make
findings of fact concerning defendant's ability to pay, because plaintiff did not
cross-appeal from the court's order. See Mondelli v. State Farm Mut. Ins. Co.,
 102 N.J. 167, 170 (1986) (finding that where defendants did not file a cross-
appeal, the court's review was "confined to the sole issue raised on plaintiff's
appeal").



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                                        I.

      The pertinent facts are not disputed.      Plaintiff Deirdre R. Scott and

defendant have a son, who was born in 2000. In 2015, the court considered a

probation department application for enforcement of defendant's child support

obligation, and entered an order directing that defendant pay $140 per week in

child support and $10 per week toward his arrears, which then totaled $560. By

2017, defendant's child support obligation had increased to $143 per week. 2

      On August 11, 2017, defendant filed a motion seeking modification of his

support obligation and an award of credits toward his child support arrears. At

the hearing on the motion, defendant testified he retired in 2015, and thereafter

his income was limited to $1415 per month in social security retirement benefits.

He arranged to have the Social Security Administration deduct $689 from his

monthly benefit and send it directly to his son. Defendant and plaintiff testified

the child had received the $689 each month since January 2016.  3 As a result of

 2
    Child support orders are subject to automatic biennial cost-of-living
adjustments. See R. 5:6B(a); Burns v. Edwards,  367 N.J. Super. 29, 34 (App.
Div. 2004).
3
  Defendant also explained that he made arrangements with the Social Security
Administration to make the monthly payments to his son commencing in 2015
and that, although $689 was deducted from defendant's monthly benefits in
2015, no payments were sent to the child during that year. Defendant testified


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the deduction of the $689 from defendant's monthly retirement benefit, he

directly receives only $726 per month in social security retirement benefits.

      Defendant further testified that from January 2016 through April 2017, he

also paid $153 per week in child support and arrears payments in accordance

with the 2015 child support order. During that period, defendant paid the full

amount of his court-ordered child support and contribution toward his arrears,

and also made provision for the child to receive the monthly $689 payment from

defendant's social security benefits. It therefore appears defendant did not

accumulate any additional child support arrears during this time.

      The record shows that beginning in approximately May 2017,4 however,

defendant became financially unable to make the monthly $153 child support

and arrears payment pursuant to the court's 2015 order, and stopped doing so.

Thereafter, the child received only $689 per month from defendant's social




there was a pending appeal concerning the sums that were deducted in 2015
from his benefit, but never paid to the child. In any event, we need not consider
the issue because defendant does not request a credit for any sums that were
deducted from his social security benefits in 2015.
4
   The record does not include the precise date defendant ceased making the
court-ordered child support and arrearage payments. On remand, the court shall
be required to determine the date defendant ceased making the court-ordered
child support to assess defendant's entitlement, if any, to a credit for the child's
receipt of a portion of defendant's social security retirement benefit.
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security benefits. Thus, commencing in approximately May 2017, defendant

began accumulating child support arrears at the rate of $143 per week. At the

time of the September 19, 2017 hearing on defendant's modification motion, the

court determined his child support arrears totaled $3561.23.

      At the hearing, the court determined defendant's retirement and

subsequent receipt of income limited to social security retirement benefits

constituted changed circumstances warranting modification of his child support

obligation. The court reviewed income information supplied by the parties and

testimony concerning the costs for their son's medical and dental insurance,

made adjustments for the child's ongoing receipt of $689 per month from

defendant's social security retirement benefits, and modified defendant's child

support obligation by reducing it to $32 per week effective August 11, 2017, the

filing date for his modification motion.

      Defendant also sought a credit against his child support arrears based on

the child's receipt of $689 per month commencing in January 2016. The court

found "[defendant] is entitled to a credit . . . for the government benefit that he

has set aside on the child's behalf," and observed defendant could have

"collect[ed] those benefits and [paid] the child support[,]" but instead had the

monies "diverted by [S]ocial [S]ecurity directly for the benefit of the child."


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      The court, however, determined defendant was not entitled to a credit

against arrears that accrued prior to the August 11, 2017 filing date of his

modification motion.     The court found it was barred by the "anti-arrearage"

statute,  N.J.S.A. 2A:17-56.23a, from providing defendant with a credit against

the arrears for the social security benefits paid to the child prior to the motion

filing date. The court concluded defendant was entitled to a credit against his

child support arrears, but only in the amount equal to the difference between the

social security benefits paid to the child following the motion filing date and the

amount of child support that was otherwise due during that period.

      The court entered a September 21, 2017 order5 finding defendant's child

support arrears were $3561.23, modifying defendant's child support obligation

to $32 per week effective August 11, 2017, and directing that defendant pay $18

per week toward his arrears. 6 This appeal followed.


 5 The September 21, 2017 order from which defendant appeals is an amended
order. The original order, which was entered by the court on September 19,
2017, "did not include text due to a computer error."
6
   The court roughly estimated that the $689 monthly benefit paid to the child
represented a $160 weekly payment. The court further estimated that from the
August 11, 2017 motion filing date to the September 19, 2017 hearing date, the
child received a total of approximately $500 from defendant's social security
retirement benefits. The court left the final calculation of the credit to the
probation department, but determined defendant is entitled to a credit against his


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                                        II.

      We owe no special deference to the trial court's "interpretation of the law

and the legal consequences that flow from established facts." Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995). A reviewing court

is compelled to reverse if the trial court abused its discretion, failed to consider

all the controlling legal principles, or reached a determination that "could not

reasonably have been reached on sufficient credible evidence present in the

record after considering the proofs as a whole." Heinl v. Heinl,  287 N.J. Super.
 337, 345 (App. Div. 1996).

      Defendant contends he is entitled to a credit against his child support

arrears for the $689 monthly sums that were paid to his son from his social

security retirement benefits prior to the August 11, 2017 filing of his

modification motion. Defendant argues the court erred by finding  N.J.S.A.

2A:17-56.23a barred the award of a credit against the child support arrears

accruing prior to the August 11 filing date. He also argues that because the total

of the $689 monthly payments to his son from his social security benefits




child support arrearages for the social security payments the child received
following the filing of the modification motion.


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exceeds the sums he otherwise owed for child support, he is entitled to a credit

against his future child support obligations.

       N.J.S.A. 2A:17-56.23a prohibits retroactive modification of child support

and child support arrearages. Keegan v. Keegan,  326 N.J. Super. 289, 293 (App.

Div. 1999). In pertinent part, the statute provides:

            No payment or installment of an order for child support,
            or those portions of an order which are allocated for
            child support established prior to or subsequent to the
            effective date of P.L.1993, c. 45 (C.2A:17-56.23a),
            shall be retroactively modified by the court except with
            respect to the period during which there is a pending
            application for modification, but only from the date the
            notice of motion was mailed either directly or through
            the appropriate agent.

            [N.J.S.A. 2A:17-56.23a.]

      Prior to the statute's enactment, "New Jersey adhered to the 'practice

where retroactive modification of support and vacation of arrearages on

equitable principles were long permitted.'" Keegan,  326 N.J. Super. at 293

(quoting Bowens v. Bowens,  286 N.J. Super. 70, 72 (App. Div. 1995)). The

statute "was designed to comply with" the federal Omnibus Budget

Reconciliation Act of 1986, 42 U.S.C. § 666(a)(9)(C), which mandates that "as

a condition of receiving federal funding for collection of child support

arrearages, states must conform with various federal standards governing child


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support." Bowens,  286 N.J. Super. at 71. "Those requirements include that

child support obligations may not be subject to retroactive modification on and

after the date that they are due." Mahoney v. Pennell,  285 N.J. Super. 638, 642

(App. Div. 1995); accord Bowens,  286 N.J. Super. at 71-72. 42 U.S.C. §

666(a)(9)(C)'s prohibition against retroactive modification of child support

obligations was included in the legislation "to prohibit the retroactive

modification of child support arrearages." Keegan,  326 N.J. Super. at 293

(citing 132 Cong. Rec. S5303-04 (daily ed. May 5, 1986)).

        The statute permits retroactive modifications of child support arrears only

for the time "during which there is a pending application for modification, but

only from the date the notice of motion was mailed either directly or through the

appropriate agent."      N.J.S.A. 2A:17-56.23a.      The statute "was enacted to

[ensure] that on-going support obligations that became due were paid."

Mahoney,  285 N.J. Super. at 643.             Thus, for example, "[a] change of

circumstances, such as loss of a job, could . . . not be used as a basis to modify

retroactively arrearages which already accrued under a child support order. "

Ibid.

        However, in Diehl v. Diehl,  389 N.J. Super. 443, 449 (App. Div. 2006),

we determined that an obligor parent is entitled to a credit against child support


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arrears that accumulated "contemporaneous with [social security disability]

benefit payments" made to a child.       We found that the trial court correctly

"limited the retroactivity of the modification [of the obligor parent's child

support obligation] to the date of [his] first motion for modification ," but

concluded that there was "no question that retroactive reduction of child support

was appropriate" because there was "error . . . in disregarding the [social security

disability] benefits paid to the child." Id. at 452. We relied on the Child Support

Guidelines, which require that social security disability benefits "paid to the

child must be deducted from the basic child support amount." Ibid.

      The propriety and extent "of a credit depends upon the equities of the

case" and are subject to limitations. Id. at 449. Thus, "[a]bsent specific evidence

of the [obligor] parent's ability to pay, retroactive payments of [social security

disability] benefits that are equivalent to or less than a support obligation are

deemed a substitute for support and are applied to reduce arrears that

accumulated during the period" of disability covered by the benefit payments.

Ibid.; accord Sheren v. Moseley,  322 N.J. Super. 338, 341-44 (App. Div. 1999).

An award of retroactive social security disability benefits to a child may not be

credited "to reduce arrears that accrued prior to the disability" because that is "a

time when the parent had the capacity to pay [child support] and no need to


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substitute [social security disability] for earnings." Diehl,  389 N.J. Super. at
 450. In addition, the amount of benefits paid to the child that exceed "the

parent's support obligation" cannot be "fully credited against arrears or future

support" because "the excess is deemed a 'gratuity' to the child." Ibid.; see also

Sheren,  322 N.J. Super. at 344.

      The principles underlying our decision in Diehl apply equally to the

circumstances presented here. For purposes of determining a parent's child

support obligation, a child's receipt of a portion of a parent's social security

retirement benefits is treated in the same manner as the receipt of a social

security disability benefit. The Child Support Guidelines provide that social

security retirement benefits, like social security disability benefits, are deducted

from a parent's government benefit and paid to a child as "derivative benefits"

"that are meant to replace the lost earnings of the parent in the event of . . .

retirement." Pressler & Verniero, Current New Jersey Court Rules, Appendix

IX-A to R. 5:6A para. 10(c)(2) at www.gannlaw.com (2018). The Guidelines

further provide that such benefits paid to the child "shall be counted in the

weekly net income of the parent whose contribution is the source of the benefits

and applied as a credit to that parent's child support obligation." Ibid. (emphasis

added).


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      We are therefore convinced the court erred by determining  N.J.S.A.

2A:17-56.23a barred the award of a credit against defendant's child support

arrears for the amounts paid to the child from defendant's social security

retirement benefits. Calculation of the appropriate credit is dependent upon the

equities, Diehl,  389 N.J. Super. at 449, and requires analysis of the different

time periods during which the child support arrears were accumulated ,

defendant's ability to otherwise pay child support during those periods, and the

amounts of child support otherwise due and social security retirement benefits

paid during those periods. See, e.g., Labrosciano v. Labrosciano,  426 N.J.

Super. 252, 259-62 (Ch. Div. 2011) (discussing differing standards for award of

credits for lump sum retroactive social security disability benefits to a disabled

parent's child based on various circumstances).

      For example, defendant is not entitled to a credit against any child support

arrears that accumulated prior to the child's receipt of defendant's social security

retirement benefit because defendant was not retired then, and presumably

otherwise had the ability to earn sufficient income to pay the court-ordered

support obligation. See Diehl,  389 N.J. Super. at 450. In addition, defendant is

not entitled to a credit for social security benefits the child received from

January 2016, through that time in May 2017 when defendant ceased making


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the full court-ordered child support payments 7 because defendant otherwise

made all of his child support payments during that time, and the social security

benefits therefore constituted a "gratuity." Id. at 450; see also Sheren,  322 N.J.

Super. at 344 (holding obligor parent is not entitled to a retroactive credit for

the portion of a lump sum social security disability benefit paid to a child that is

in excess of the child support obligation during the period of the parent 's

disability because "that amount belongs to" the child as a "gratuity"). Moreover,

defendant is not entitled to any credit against future child support obligations

for the child's receipt of his social security retirement benefit. Diehl,  389 N.J.

Super. at 450; Sheren,  322 N.J. Super. at 344.

      On remand, the court shall therefore consider defendant's entitlement to a

credit against child support arrears that accumulated following                   his

discontinuance of his child support payments in approximately May 2017 , and

prior to the filing of his modification motion, based on the child's receipt of the

$689 per month in defendant's social security retirement benefits during that

time. The court shall consider the equities in accordance with the principles and

limitations established in Diehl and based on the evidence and circumstances



7
  As noted in footnote 4, supra, the record does not reveal the precise date
defendant ceased making the court-ordered child support payments.
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presented, and decide defendant's entitlement, if any, to a credit for the social

security retirement benefits the child received during that time. The court shall

do so unconstrained by  N.J.S.A. 2A:17-56.23a because "[i]n seeking this

retroactive credit, defendant [does] not ask the judge to modify the amount of

child support he owed, just the source of the payments." Sheren,  322 N.J. Super.

at 340.

      Affirmed in part, vacated in part and remanded for further proceedings in

accordance with this opinion. We do not retain jurisdiction.




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