Opinion
DOCKET NO. A-4861-09T4
10-03-2011
P.S., Plaintiff-Appellant, v. R.S., Defendant-Respondent.
P.S., appellant pro se. R.S., respondent pro se.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1764-04D.
P.S., appellant pro se.
R.S., respondent pro se. PER CURIAM
Plaintiff P.S. appeals from an April 26, 2010 post-judgment Family Part order reducing the child support obligation paid by defendant R.S. for the benefit of the parties' disabled adult child. Plaintiff argues defendant's failure to present evidence of a disability determination by the Social Security Administration defeats a determination that he was disabled and the court erred in reducing his child support obligation.
Following our review of the arguments presented on appeal, we affirm the court's finding regarding defendant's disability. However, in light of the record and applicable law, we reverse the ordered child support and remand for additional proceedings consistent with our opinion regarding the amount of child support to be awarded.
Plaintiff and defendant divorced on November 16, 2004. They have two children. This matter concerns only their older child, as the younger child is now emancipated. At the time of divorce, plaintiff was not employed; rather, she was the disabled child's full-time caregiver. Defendant was employed as a plumber and was ordered to pay child support of $360 per week.Support had been modified such that the most recent order fixing defendant's obligation, effective July 29, 2008, required he pay support of $224 per week for the remaining unemancipated disabled child.
The record does not include the final judgment of divorce. The amount of child support ordered was taken from the parties' testimony; however, we are not told whether this amount was for the support of only the disabled child or the parties' two children.
Since the divorce, several post-judgment motions were filed by the parties. Most recently, defendant initiated a motion to terminate his child support obligation, alleging he had stopped working as a result of his debilitated health. Plaintiff opposed the motion arguing defendant had no proof of disability or decreased income. After reviewing the motion papers, the court scheduled the matter for a plenary hearing, which was held on April 15, 2010.
Prior to the presentation of evidence, plaintiff moved to dismiss defendant's application because of his failure to comply with her discovery requests. Although the court denied the request to dismiss, it confined defendant's testimony to the parameters of the disclosure he had made and, further, precluded him from introducing evidence that had been requested, but not provided during discovery.
Defendant testified he was disabled as a result of a pulmonary condition. He last worked as a member of the plumber's union in September 2009, and was receiving state disability benefits of $584 per week from which his child support was deducted. In nine months of working in 2009, defendant earned $49,012. In prior years, his earnings were: $55,744 in 2008; $38,776 in 2007; and $39,247 in 2006. Defendant introduced a January 13, 2010 application he filed seeking Social Security Disability (SSD) benefits. If awarded, he believed his monthly benefit would be $1891 and the parties' child would be awarded $946 per month, retroactive to March 2010.
On cross-examination, defendant acknowledged that since 2004, he had filed six prior motions to reduce his support, each claiming he was disabled. He also testified that he lived in a single-family home owned by his wife who satisfied all obligations related to the residence, including the monthly payment associated with the $200,000 mortgage, the real estate taxes and all utilities. Additionally, his wife paid his $642 per month car payment, all food costs, his health insurance premiums and medical expenses, while he was responsible for paying only his monthly $72 cellular telephone, and $81 car insurance expenses. Defendant also identified a prior pleading from August 2008 which stated he received $2018 from the Veteran's Administration (VA) as a result of a disability related to his prior military service. Defendant's VA benefits were reduced to $123 per week pending review of whether his disability had changed.
Plaintiff testified she was disabled as a result of an Arnold-Chiari malformation, a brain stem tumor, and had been receiving SSD benefits since approximately May 2006. Her benefit was $701 per month. In late 2007, the parties' child was deemed disabled and received $351 per month until December 2010. Plaintiff devoted her time and attention to the care of the parties' disabled child.
Plaintiff explained her monthly needs for the necessary care of herself and her daughter included: $596 subsidized rental obligation; $300 to $400 for heating costs because of the child's needs; $40 for water; $140 to $190 for telephone costs, depending on the number of calls to the child's treating physicians; $200 for transportation to the child's doctors and hospitals for care; $194 for Medicare; $236 for prescriptions; $495 for supplemental medical prescription insurance, to assure coverage of the child's prescription expenses of between $4000 to $6000 each month; $100 for non-prescription medications, vitamins and co-pays; and $200 for food. Plaintiff was unable to meet her expenses every month and was three months behind in rent. She received charitable financial assistance from her church and additional assistance from her family.
On April 26, 2010, the trial court issued an order reducing defendant's child support obligation from $224 to $123 per week with an additional $10 per week to satisfy the accumulated arrearages. The court attached to the order a memorandum of decision setting forth its factual findings and legal conclusions. Despite the dearth of documentary evidence of a medical disability, the court found defendant was no longer able to work as a plumber based upon observational evidence and credibility determinations, stating:
The [c]ourt had an opportunity to observe [] [d]efendant throughout the proceedings. His hands were constantly shaking, and he appeared to be in discomfort as well. Thus, the [c]ourt finds him to be credible when he testified that he has worked in the past despite his ailments, but that his physical condition has deteriorated to the point where he can no longer do so.
. . . .
[Defendant]'s decision to stop working as a plumber in September 2009 was reasonable, given his credible testimony on the issue of his inability to work due to his medical condition. Additionally, his decision to stop working was not done in bad faith. Rather, he has repeatedly continued employment in the face of his deteriorating medical condition.
The court found defendant had proven a substantial change of circumstances warranting a review of his child support obligation. Using defendant's gross weekly income of $613 and plaintiff's gross weekly income of $163, the court applied the Child Support Guidelines and ordered defendant pay $124 per week in child support. The court noted it did not include the child's weekly Supplemental Security Income (SSI) benefit of $82, because it would have further reduced the support paid and the child's needs are extensive. This appeal ensued.
The order included in the record does not have the Guidelines' worksheet attached.
In our review, a motion to modify a support obligation "'rests upon its own particular footing and [we] must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Particular deference is afforded to decisions on issues of credibility. Id. at 412; In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Accordingly, "[t]he findings of a trial judge are entitled to great deference and will be overturned only if 'we are 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.'" Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
When confronted with a claim the trial court erred in its determination of the facts, we consider "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). See also DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976) (applying this standard in custody cases). We defer to the trial court's assessment of witness testimony, including credibility determinations. Cesare, supra, 154 N.J. at 412; Pascale v. Pascale, 113 N.J. 20, 33 (1988). When a reviewing court satisfies itself of the evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck, supra, 86 N.J. at 496 (quoting Johnson, supra, 42 N.J. at 162).
A support order is "always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citations omitted). See also N.J.S.A. 2A:34-23A (stating orders setting child support, "may be revised and altered by the court from time to time as circumstances may require"). A party seeking modification of a child support obligation has the burden to show material changed circumstances warranting relief from the current child support order. Ibrahim v. Aziz, 402 N.J. Super. 205, 213 (App. Div. 2008) (holding defendant had the burden to show that a decrease in his income warranted a downward modification in his child support obligation). See also Larbig, supra, 384 N.J. Super. at 23 (stating a movant must provide "sufficient evidence of a material changed circumstance" to warrant a modification of a support obligation).
Courts have recognized a variety of situations that constitute "changed circumstances," including a change in the supporting spouse's income, an increase in the cost of living, or an illness or disability that arises after the original judgment. Lepis, supra, 83 N.J. at 151. However,
[an] alleged reduction in income [is] only part of the overall circumstances [the Family Part judge is] required to consider in determining whether [an obligor has] met the burden of demonstrating a right to either discovery or a plenary hearing. . . . The trial court must consider—in both fixing and altering a support obligation—what is equitable and fair in all the circumstances. This requires not only an examination of the parties' earnings but also how they have expended their income and utilized their assets.
[Donnelly v. Donnelly, 405 N.J. Super. 117, 130 (App. Div. 2009) (internal citations omitted).]
Moreover, the trial court must consider "other financial circumstances of the parties in addition to their income when determining child support." Connell v. Connell, 313 N.J. Super. 426, 432 (App. Div. 1998). "The Legislature has specifically expressed its intent in that regard through adoption of N.J.S.A. 2A:34-23a. . . . [It is] clear [that] child support [is] based upon total family resources and all parents' resources should be considered available for support of the children." Ibid.
Finally, when determining whether modification is necessary the court must assess not only numbers, but also what, in light of all facts presented, is equitable and fair. Rolnick v. Rolnick, 262 N.J. Super. 343, 353 (App. Div. 1993); see also Smith v. Smith, 72 N.J. 350, 360 (1997). The trial judge's guiding principle remains the "best interests of the children." Lepis, supra, 83 N.J. at 157.
In this regard the financial information submitted to the court must be current and updated prior to any modification order. Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991).
This mandate is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movants in a modification case. This is important because the movant bears the initial burden in such a case under Lepis[, supra], 83 N.J. [at 152].
[Ibid.]
Governed by these principles, we determine the trial judge's finding that defendant was disabled is supported by substantial credible evidence in the record and, therefore, the court properly found defendant established a prima facie case of material changed circumstances. The trial judge found defendant's testimonial evidence credible and compelling. Further, he determined defendant acted in "good faith" in the cessation of his employment, Kuron v. Hamilton, 331 N.J. Super. 561, 571-72 (App. Div. 2000), identifying the apparent physical limitations impacting defendant's hands precluded continued work in his trained profession.
We, however, part company with the trial judge's exercise of discretion in setting the amount of support. We take issue with the court's strict application of the child support guidelines on these facts, without regard to whether a supplemental award for health insurance, prescription and non-prescription medications and medically necessary transportation costs was appropriate under the facts presented, demonstrating extreme medical needs of the dependent child.
Application of the guidelines when fixing child support is mandated by Rule 5:6A. "[A]n award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case." See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to Rule 5:6A, comment at paragraph 3 (2011). The Rule recognizes
the guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that injustice would result from the application of the guidelines.
[R. 5:6A.]
The guidelines also reflect that in addition to the determined amount of child support, a parent also may be obligated to pay sums for the child's reasonable health insurance and predictable and reoccurring unreimbursed health care expenses exceeding $250 per year. Pressler & Verniero, supra, Appendix IX-A to Rule 5:6A at paragraph 26; Appendix IX-B at line 17. Finally, the court may approve extraordinary expenses necessary for the child. Pressler & Verniero, supra, Appendix IX-B to Rule 5:6A at line 18.
Finally, we note Appendix IX-A, which details the considerations for application of the guidelines, recognizes the use of the child support guidelines as a rebuttable presumption. See Pressler & Verniero, supra, Appendix IX-A to Rule 5:6A. In appropriate circumstances, the guidelines permit the court to "disregard the guidelines or adjust the guidelines-based award to accommodate the needs of the children or the parents' circumstances." Ibid. See also Burns v. Edwards, 367 N.J. Super. 29, 47-48 (App. Div. 2004) ("The guidelines also recognize that extremely low parental income situations can make the 'Schedule of Child Support Awards' set forth in . . . Appendix IX-F to Rule 5:6A, inapplicable.").
Plaintiff testified she obtains necessary supplemental health insurance for the child to assure coverage of her myriad prescription costs when the child's prescription expenses exceed the Medicare ceiling. Further, plaintiff incurs regular monthly costs for vitamins and non-prescription medications necessary for the child's subsistence. The court did not consider this evidence or whether defendant's financial circumstances allowed allocation of additional sums for these necessary expenses.
We have been advised that defendant's disability request was approved by the Social Security Administration on July 8, 2010, awarding a monthly amount of $1892.90. Effective March 10, 2010, the child has also been awarded $946 per month, a sum plaintiff should now be receiving. We are not told whether this sum replaces the prior award of $351 which the child was receiving. In light of these new facts, the court must again examine the appropriate support award. The court must discern whether additional support for the child is necessary after examining defendant's income, plaintiff's income from all sources, the child's derivative benefits from parental SSD awards (but not including the child's individual SSI award, if any) and the health insurance, medical, prescription and extraordinary necessary expenses of the child. We note, defendant's satisfaction of applicable supplemental support for his daughter may be viewed in light of his limited obligation to pay certain expenses, which he testified were assumed by his spouse.
The record does not reveal whether the child's benefit of $351 per month was a SSI award or a derivative benefit from plaintiff's SSD.
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We affirm the provision of the court's April 26, 2010 order finding defendant proved a substantial change in circumstances. However, we reverse the provision fixing child support, and remand for additional proceedings consistent with this opinion. In light of the SSD award for the child's benefit, we vacate the stay imposed by our June 15, 2010 order, but require the matter to be relisted before the trial court within thirty days. We also deny plaintiff's request for reconsideration of order M-6182-09 regarding denial of free transcripts (M-6777-09).
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION