Opinion
DOCKET NO. A-1214-13T3
04-01-2016
JENNIFER POST, Plaintiff-Respondent, v. LOUIS GIBSON, Defendant-Appellant.
Louis Gibson, appellant pro se. Jennifer Post, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-000858-08. Louis Gibson, appellant pro se. Jennifer Post, respondent pro se. PER CURIAM
Defendant Louis Gibson appeals from a September 19, 2013 order granting his motion to reconsider an August 13, 2013 order, modifying his child support obligation. We affirm in part and reverse and remand in part for further proceedings.
We discern the following facts from the record. Defendant and plaintiff were married and have two children. While serving in the United States Marine Corps, defendant sustained injuries and was diagnosed with herniated disks, lumbar stenosis, and depression with adjustment disorder. He was certified 100% disabled by the Department of Veteran Affairs (VA). See 38 C.F.R. §§ 4.1, 4.25. He was subsequently awarded VA payments for his disability. The VA also determined defendant was incapable of managing his personal affairs, including the disbursement of his VA payments, and named plaintiff, at defendant's request, his custodian.
An order authorized plaintiff, as defendant's custodian, to subtract his $245 per week child support obligation from his disability benefits. That order was vacated by a February 2, 2009 order, which ordered defendant to pay his child support through the Probation Division.
The parties divorced on February 19, 2009. In February 2011, based on a cost-of-living adjustment, defendant's weekly payments were modified to $281; $251 for child support and $30 towards arrearages.
Defendant then moved to vacate or reduce his child support obligation and arrears alleging a substantial change of circumstances. Defendant also argued his veterans' benefits should not be considered income for child support purposes. The trial judge heard oral argument on the motion on August 2, 2013. Defendant was represented by counsel at the hearing.
During oral argument, the trial judge found defendant's weekly income was $704, a change from $1857 . He also found plaintiff's weekly income was $1808. The judge proceeded to deny defendant's motion to retroactively vacate arrears reasoning there were only limited conditions when vacation was appropriate, and defendant's situation did not fall within one of those exceptions. The judge granted defendant's motion to modify his child support after recalculating the payments based on defendant's income reduction. The new weekly payment was calculated at $149; $124 for child support and $25 for arrears. Additionally, the judge found defendant's veterans' benefits were considered income for child support purposes. The judge's findings and conclusions were memorialized in an August 2, 2013 order, which was subsequently modified on August 13, 2013, to correct a clerical error.
On August 23, 2013, defendant filed a motion to modify his child support obligation and to reconsider the August 13, 2013 order. Another trial judge heard oral argument on the motion on September 19, 2013. Defendant was unrepresented at the hearing.
The trial judge found plaintiff's income was $1923 a week. He found defendant's income was $715 a week. After recalculating defendant's child support obligation using the parties' current incomes and tax statuses, the judge reduced defendant's weekly payment to $110. The trial judge concluded he could not retroactively modify defendant's arrears and ordered defendant pay $40 a week towards his back payments, totaling $150 per week. The judge's findings and conclusions were memorialized in an order dated September 19, 2013. Defendant now appeals this order.
On appeal, defendant argues his arrears should be vacated. He asserts the amount he has been ordered to pay makes it impossible to support himself as he relies on disability income, and plaintiff has her own income which allows her a higher standard of living than he enjoys. He also argues he could not legally enter into any agreement because he was mentally incompetent. In addition, he contends the State or plaintiff had an obligation to provide him with counsel at the September 19, 2013 hearing because of his incapacitation. Furthermore, appellant contends there was a conflict of interest for plaintiff to file a complaint against him as she was defendant's fiduciary. Finally, defendant argues his disability benefits should not be considered income for purposes of calculating child support.
"[A] trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). A court abuses its discretion "when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Ibid. (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
In rendering a decision, the trial court shall find facts and state its conclusions of law in a written or oral opinion or memorandum decision. R. 1:7-4(a); see also Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000) (stating a judge has a duty under Rule 1:7-4(a) to make findings of fact and conclusions of law in calculating child support). Failure to make these findings "constitutes a disservice to the litigants, the attorneys and the appellate court." Schwarz, supra, 328 N.J. Super. at 282 (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)).
Under Rule 5:6A, the guidelines set forth in Appendix IX of the New Jersey Court Rules explain the procedure "when an application to establish or modify child support is considered by the court." New Jersey has established that both parents share the obligation of child support. See Caplan v. Caplan, 364 N.J. Super. 68, 90 (App. Div. 2003) (stating "child support is a continuous duty of both parents; that children are entitled to share in the good fortune and current income of both parents"), aff'd, 182 N.J. 250 (2005); see also Pascale v. Pascale, 140 N.J. 583, 593 (1995) (stating "[c]hild support is the right of the child and the responsibility of both parents").
We find the second trial judge did not abuse his discretion in recalculating defendant's child support payments. However, the trial judge failed to articulate any factual reasons, as required by R. 1:7-4(a), for increasing defendant's arrears payments from $25 to $40 a week. We find the $15 increase puzzling in light of the weekly child support obligation decrease. We reverse and remand for further proceedings to determine defendant's weekly arrears payment based on his ability to pay.
Defendant's remaining arguments lack merit. Defendant's contention his arrears should be vacated is groundless because our laws do not allow for the retroactive modification of arrearages. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995); see also N.J.S.A. 2A:17-56.23a.
Additionally, defendant's claim he was incompetent during the proceedings is unfounded as he did not request appointment of a guardian nor did he appear incompetent. Rule 4:26-2(b) allows for the appointment of a guardian ad litem for an alleged mentally incapacitated person. An adjudication of incompetency is not a necessary precondition for a guardian ad litem appointment. In re S.W., 158 N.J. Super. 22, 26 (App. Div. 1978). Rather, the trial court may appoint a guardian ad litem if "the party from any cause, whether by age, disease, affliction, or extreme intemperance, has become incapable and unfit for the government of himself and his property." Ibid. (quoting Borough of E. Paterson v. Karkus, 136 N.J. Eq. 286, 288-89 (Ch. 1945)). Here, defendant neither moved for a guardian appointment nor was there any indication during the September 19, 2013 hearing defendant was incapable and unfit to represent himself. He articulated his legal arguments to the judge and supported his position with evidence.
Defendant's argument his disability benefits should not be considered income for child support purposes is baseless because gross income for the purpose of calculating child support includes distributions from the VA. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at www.Gannlaw.com (2016); see also Burns v. Edwards, 367 N.J. Super. 29, 45 (App. Div. 2004) (stating veterans' benefits are received for time on the job and are intended to provide compensation to disabled veterans and their families).
Finally, defendant's contention there was a conflict of interest barring plaintiff from filing a complaint against him because she acted as defendant's fiduciary is not grounded in fact. During oral argument, plaintiff stated she never deducted or received any money from defendant's disability checks after the initial child support order. When the checks came in paper form, plaintiff could never deduct payment because defendant intercepted them. Further, the checks were directly deposited into defendant's father's account once plaintiff was removed as his payee in April 2008.
We affirm the amount of the weekly child support obligation. We vacate the provision of the order fixing the arrearage payment and remand for reconsideration of this issue, including the factual findings supporting the amount of arrears defendant is ordered to pay each week. We do not retain jurisdiction.
Affirmed in part, reversed and remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION