Opinion
DOCKET NO. A-4141-11T2
05-09-2013
P.S., Plaintiff-Respondent, v. R.S., Defendant-Appellant.
R.S., appellant pro se. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Mantineo.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1764-04D.
R.S., appellant pro se.
Respondent has not filed a brief. PER CURIAM
This matter is before the court following our remand for the trial court to revisit the amount fixed for child support. After careful consideration of the record, we reverse the ordered child support and remand for the recalculation of the award consistent with our opinion.
I.
Plaintiff, P.S. and defendant, R.S. respectively, the mother and father of two adult children, divorced on November 16, 2004. Their older daughter, J.S., is disabled and the subject of the child support order at issue. In or around October 2009, defendant filed a motion to terminate his child support as he had stopped working as a result of debilitated health. Plaintiff opposed the motion. A plenary hearing was held and the court found defendant had established his disability, which amounted to a substantial change of circumstances that warranted a review of his child support obligation. Based upon the financial information provided, the court ordered defendant to pay $124 per week in child support.
Plaintiff appealed from the court's decision. We affirmed that part of the decision finding defendant disabled. We reversed the trial court's child support calculation and remanded. We found 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 improper. P.S. v. R.S., No. A-4861-09 (App. Div. Oct. 3, 2011) (slip op. at 11-12).
On remand, the trial court held a plenary hearing on January 10, 2012. Plaintiff offered little credible evidence of the child's extraordinary medical expenses. The court concluded the proofs offered failed to "flesh out" the necessity, nature or amount of the additional expenses incurred on behalf of the child. The court's findings with respect to the child's extraordinary expenses were thus limited to the costs incurred for the nutritional drink Ensure that J.S. consumes four times a day, and expenses plaintiff incurs transporting J.S. to out-of-state doctors and hospitals.
The court recalculated the support obligation based upon its findings and the financial information presented. In determining the award, the court concluded: plaintiff's net weekly income included $163 she received in Social Security Disability benefits (SSD) based on her own disability. She also received $980 per month in derivative benefits for J.S. based on defendant's disability; and had received over $5,000 from Social Security as a retroactive lump sum payment on behalf of J.S.
In the trial court's initial opinion, it found the child's benefit was $351 per month but did not reveal whether this was the child's SSI award or a derivative benefit from plaintiff's SSD benefits. Nevertheless, plaintiff testified she no longer received $351 in benefits that she had been receiving at the time of the April 2010 order.
Defendant's weekly net income was calculated at $484 based on his monthly SSD of $1,961 and a monthly veteran's pension of $123. A New Jersey Child Support Guidelines (Guidelines) worksheet, see R. 5:6A was prepared resulting in defendant's weekly child support obligation of $120. The court added an additional $36 to this amount to help defray the cost of the Ensure and the transportation expenses incurred by plaintiff. The court ordered defendant to pay child support in the amount of $156 per week.
R. 5:6A (stating "[t]he guidelines set forth in Appendix IX . . . shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown").
Defendant filed a notice of motion for reconsideration on February 6, 2012, petitioning the court to reexamine its child support determination. No opposition to the motion was filed by plaintiff. On March 2, 2012, the court denied the motion without argument. This appeal followed. Plaintiff did not file opposition.
The March 2, 2012 order reflects the court's reasons for the denial were set forth on the record that day. We have not been provided with a copy of the March 2, 2012 transcript.
In his present appeal, defendant advances the following arguments:
POINT I
THE CHILD SUPPORT AWARD DID NOT COMPLY WITH THE APPELLATE DIVISION'S DIRECTION.
POINT II
DETERMINATION OF DEFENDANT'S CHILD SUPPORT OBLIGATION SHOULD INCLUDE CREDIT FOR THE SSD PAYMENT TO HIS DAUGHTER UNDER HIS SOCIAL SECURITY.
II.
Our review of a trial court's factual findings is limited. "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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Since a trial court "hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Id. at 412 (internal quotations and citations omitted). Consequently, we do 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." Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). However, "we are not bound by '[a] trial court's interpretation of the law' and do not defer to legal consequences drawn from established facts." Jacoby v. Jacoby, 427 N.J. Super. 109, 116-17 (App. Div. 2012) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
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). "The trial court has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Jacoby, supra, 427 N.J. Super. at 116 (citations omitted). "'Of course, the exercise of this discretion is not limitless[,]' and remains guided by the law and principles of equity." Ibid. (quoting Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div.), aff'd in part and modified in part, 183 N.J. 290 (2005)). "An abuse of discretion arises when a decision is made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Ibid. (internal quotation marks and citations omitted).
Governed by these principles, we are constrained to reverse the order of the trial court as a result of its failure to account for the derivative Social Security benefits when computing defendant's child support obligation.
Initially, defendant argues the trial court erred in making a child support determination based on the limited financial information provided by the parties. Defendant complains that the court made no "effort to draw . . . out" the necessary information during the hearing. We are not persuaded by defendant's argument. The record demonstrates the trial court provided the parties ample opportunity to present their proofs. When necessary, the court questioned the parties about their resources and sought clarification when needed. From the evidence presented, the court was able to determine the financial underpinnings of its award. While the court found there was a dearth of credible evidence of the child's extraordinary expenses, it did not find that it lacked sufficient information to determine a child support award. The record disclosed ample proof of each party's monthly income, which was then used to calculate the award.
Defendant next argues that the child support calculated pursuant to the Guidelines should have been reduced by the derivative SSD benefits J.S. receives based on his disability. We agree.
New Jersey law recognizes specific instances necessitating a parent's continuing obligation to provide support for a child past the age of majority; one instance recognized by the legislature addresses special needs children, incapable of self-sufficiency due to disability. N.J.S.A. 2A:34-23(a). Parental support obligations do "not terminate solely on the basis of the child's age if the child suffers from severe mental or physical incapacity that causes the child to be financially dependent on a parent." Ibid. "The obligation to pay support for that child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent." Ibid.
With respect to government benefits paid to or for children, the Guidelines provide:
In some cases, government benefits may be received by or for a child based on a parent's earnings record, disability, or retirement (e.g., . . . Social Security). Such payments are meant to replace lost earnings of the parent and are paid in addition to the worker's or member's benefits (i.e., payments to family members do not reduce the member's benefits). . . . If non-means tested benefits are paid to or for a dependant child for whom support is being determined, the benefits must be deducted from the basic support obligation . . . . The deduction is provided because the receipt of such benefits reduces the parents' contributions toward the child's living expenses (i.e., the marginal cost of the child). If the benefits received by the child are greater than the total support obligation (i.e., the amount of the obligation after deducting the benefits is zero), no support award should be ordered while the child is receiving the benefits . . . . If the total obligation is greater
than the benefits received by the child, the non-custodial parent's income share of the residual amount (after deducting the benefits) is the support award to be paid to the custodial parent.
[Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2549-50, PP10(c) (2013); see Herd v. Herd, 307 N.J. Super. 501, 503-06 (App. Div. 1998).]
A court must consider "Social Security disability payments received for the child's benefit not as a credit against support payable but as a factor in calculating the father's child support obligation." Tash v. Tash, 353 N.J. Super. 94, 103 (App. Div. 2002).
We find that the trial court erred in failing to incorporate the derivative SSD benefit into the child support calculations. While the court found plaintiff received SSD benefits for the subsidy of J.S. as a result of defendant's disability, they were not included in either the Guidelines worksheet prepared or the award entered. Further, the court failed to make findings of fact or offer any elucidation for its exclusion of the SSD payment in its award.
Therefore, we reverse the January 20, 2012 and March 2, 2012 orders denying defendant relief from child support and remand the matter for calculation of child support based on updated financial information of plaintiff, defendant and the child, including the incorporation of any dependency benefits paid for the benefit of J.S.
The record does not reveal whether the child receives a derivative benefit from plaintiff's SSD. The current Guidelines permit the discretionary inclusion of the child's mother's SSD benefits paid for the child. Pressler, supra, Appendix IX-A, 2549-50, PP10c (citations omitted).
The trial court shall determine whether, and to what extent, defendant shall be required to pay any further child support in light of the SSD benefits the child receives. If the court concludes that defendant's child support obligation shall be eliminated or reduced, defendant shall be entitled to a credit for payments made after the SSD benefits were awarded.
Payments of SSD benefits after the filing of the motion to modify child support, would not involve any modification of support prior to the date of the determined disability, March 2010. See N.J.S.A. 2A:17-56.23a.
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Finally, we note the Guidelines worksheet attached to the court's January 20, 2012 order fails to state whether the court deviated from the Guidelines and increased the support amount by $36 per week. Further, the record lacks findings of fact with respect to how the court arrived at the $36 it added to the base support award for the Ensure and transportation costs. We have repeatedly stressed the importance of the trial court's responsibility to provide findings and conclusions to assure an informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). Without findings relevant to the legal standards, a litigant and the reviewing court "can only speculate about the reasons" for the trial court's decision. Id. at 304. Thus, the trial court's obligation to make such findings of fact is critical to an appellate court's "meaningful review." Ronan v. Adely, 182 N.J. 103, 110-12 (2004). These deficiencies must be addressed by the court on remand.
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.
CLERK OF THE APPELLATE DIVISION