Opinion
DOCKET NO. A-4034-11T3
01-22-2014
JILL B. SHARRA, Plaintiff-Respondent, v. JOHN SHARRA, Defendant-Appellant.
Lynda Yamamoto, attorney for appellant. Stanley L. Bergman, Jr., attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Guadagno.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-586-07A.
Lynda Yamamoto, attorney for appellant.
Stanley L. Bergman, Jr., attorney for respondent. PER CURIAM
Defendant John Sharra appeals from the Family Part's February 29, 2012 order denying Sharra's application to modify his child support obligation and allocate a credit in his favor in light of his children's receipt of derivative social security disability benefits occasioned by Sharra's disability. We affirm.
I.
Plaintiff and defendant were married for six years. Two children were born of the parties' union. The November 26, 2007 final judgment of divorce required defendant to pay an aggregate $477 per week for child support. Less than six months later, on May 23, 2008, due to the effects of a deteriorating job market on defendant's earnings, defendant's child support obligation was reduced by the court to an aggregate $260 per week (plus $10 per week for arrears).
Later in 2008, defendant was diagnosed with multiple sclerosis. As the disease progressed, defendant's ability to work decreased. In June 2010, defendant applied for social security disability benefits. On April 25, 2011, defendant was notified by the Social Security Administration that he was eligible for monthly disability benefits beginning in August 2010. A lump sum payment was forthcoming to compensate defendant for the eight-month period of August 2010 through March 2011, and monthly payments for April 2011, and thereafter, would commence in May 2011. Because of their father's disability, each of defendant's children was allotted a lump sum disability payment ($3,703) for the nine-months period of August 2010 through April 2011, and their regular monthly payments would then follow on the fourth Wednesday of each month beginning in May 2011.
On June 6, 2011, defendant filed a motion seeking a modification of his child support obligation to $5.00 per week "due to a change in circumstances being his disability and loss of income." Plaintiff filed a cross-motion seeking, among other things, that the court "[d]ismiss[] Plaintiff's [sic] motion for failure to file a Case Information Statement."
On September 21 and October 3, 2011, the Family Part entered orders requiring defendant to provide plaintiff with a completed case information statement including a copy of defendant's 2010 Tax return for purposes of determining child support. After that was accomplished, the Family Part heard oral argument on the parties' competing motions.
On December 12, 2011, the court issued a written opinion fully analyzing defendant's past, present, and future child support obligation. After considering the fiscal impact of the disability benefits income and defendant's other sources of income, an order was entered on that date setting defendant's aggregate child support obligation at $195 per week (plus $40 per week for arrears) effective as of May 1, 2011.
Because of changes in the amounts of disability benefits defendant and the children received during 2011, the court separately calculated defendant's aggregate child support obligation at $223 per week for the four-month period of January 2011 through April 2011. A separate order reflecting this retroactive adjustment was also entered on December 12, 2011.
The court rejected a retroactive change in child support for the year 2010, writing:
The Court has not considered the retroactive modification of the defendant's child support obligation for any of the time in 2010 because with the income the defendant received in or for 2010 from retroactive social security [], his pension [], unemployment [], and salary/wages [], his total income [] exceeded the $866.00 per week income utilized for the defendant the last time the defendant's child support was calculated on [May 23, 2008].Because the parties did not present arguments about the propriety of any credit, the court did not address the issue.
Defendant immediately filed a motion for reconsideration seeking further modification of child support and "[g]iving defendant a credit against his child support obligation for Social Security dependent payments made to the parties' children." Defendant, for the first time, argued that the credit was mandated by Diehl v. Diehl, 389 N.J. Super. 443 (App. Div. 2006), and the Family Part had mistakenly failed to give defendant a credit for supposed overpayments of support received by the children from multiple sources. Plaintiff cross-moved to "[d]eny Defendant's motion for reconsideration," and sought additional relief.
In a February 24, 2012 oral opinion, the Family Part denied defendant's motion. The court distinguished Diehl, finding that its facts rendered it inapplicable to defendant's situation. Furthermore, the court noted that its equitable analysis of the family's 2010-2011 financial condition expressly considered defendant's several income streams — salary, pension, and unemployment benefits — plus defendant's receipt of disability benefits, as well as the amounts paid derivatively to the children owing to defendant's disability eligibility. Finding that its calculation was "fair and equitable under the circumstances" because it "fairly allocated the funds that were available" the court concluded that its credit-less disposition did not transgress Diehl. Accordingly, the February 29, 2012 order denying relief was issued. This appeal followed.
II.
"Generally, the special jurisdiction and expertise of the family court requires that we defer to factual determinations if they are supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). We accord "particular deference" to family courts because of their "special jurisdiction and expertise in family matters[.]" Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Such deference will be "disturbed only upon a showing that the findings are 'manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence' to ensure there is no denial of justice." Ibid. (quoting Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006)).
Furthermore, "[t]he Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). Again, we "accord[s] great deference to discretionary decisions of Family Part judges." Milne, supra, 428 N.J. Super. at 197. Such discretion "takes into account the law and the particular circumstances of the case before the court." Ibid.
On the other hand, we will not defer to a family court's decision where the court mistakenly exercised its discretion. See State ex rel. J.A., 195 N.J. 324, 340 (2008). "An abuse of discretion 'arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.Milne, supra, 428 N.J. Super. at 197 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). Also, the family courts' legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).
On appeal defendant asserts that he is "entitled to a 'Diehl credit' — a future credit against his child support obligation because of the overlap period when his children were receiving both a higher amount of child support and [social security disability] dependent benefits between August 2010 and December 12, 2011." Additionally, he "alleges error by the trial court in its discretionary denial of recalculation pursuant to binding case law of child support obligation set forth in its Order of December 12, 2011." We disagree.
In Diehl, the Family Part had granted the plaintiff father a credit of $11,611, which represented the lump sum of retroactive social security disability benefits paid directly to the plaintiff's child. Id. at 448. We disagreed that such an equitable credit was appropriate, except for a limited period of seventeen weeks (January 1, 2003 to April 25, 2003) when the plaintiff "was obligated to pay child support at a level above his capacity to earn." Id. at 451.
"The benefit was for a period of approximately 101 weeks between July 19, 2002 and June 25, 2004, the date of the child's eighteenth birthday. The weekly benefit was approximately $115." Diehl, supra, 389 N.J. Super. at 448.
Defendant claims that he is entitled to a total Diehl credit of $15,182, which consists of his children's aggregate lump sum and monthly social security disability payments from August 1, 2010 until December 11, 2011. During that same period, defendant's aggregate child support obligation was $18,280, based upon the Family Part's May 28, 2008 order.
Notwithstanding that the $18,280 was paid at a time when defendant was presumptively unable to pursue gainful employment, Golian v. Golian, 344 N.J. Super. 337, 342-43 (App. Div. 2001), the Family Part concluded that defendant had sufficient earnings — including pension payments, unemployment benefits, and salary — in 2010 to compel denial of a credit on equitable grounds. Furthermore, although the Family Part retroactively modified defendant's child support for the several months prior to defendant's filing the June 2011 motion for modification, the court equitably considered the allocation of social security disability benefits during that period, and we detect no inequity in denying a prospective credit for the children's separate receipt of social security disability benefits.
Cf. Labrosciano v. Labrosciano, 426 N.J. Super. 252, 274 (Ch. Div. 2011) (noting that under N.J.S.A. 2A:17-56.23a, a modification is appropriate only back to the date when a movant seeking modification mails a notice of motion for such relief to the court). Notably, plaintiff did not cross-appeal from this retroactive modification, and the issue is not before us. See Seacoast Builders Corp. v. Jackson Tp. Bd. of Educ, 363 N.J. Super. 373, 381 (App. Div. 2003).
--------
Our review of the record convinces us that the Family Part's treatment of defendant's situation, including the children's receipt of derivative benefits through December 11, 2012, did not go "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the court's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). That being the case, we have no cause to intervene.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION