WARREN F. HORTON VS. CASSANDRA L. BROWNÂ (FM-12-2154-99, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2273-15T3
WARREN F. HORTON,
Plaintiff-Appellant,
v.
CASSANDRA L. BROWN,
Defendant-Respondent.
_______________________________
Submitted September 12, 2017 – Decided September 20, 2017
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-2154-99.
Warren F. Horton, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff appeals from an order dated December 3, 2015,
denying his motion for reconsideration of an order dated April 13,
2012, which denied his request for reimbursement of child support
paid to defendant. Plaintiff claims child support should be
reimbursed because defendant was receiving welfare, social
security and child support at the same time. Because plaintiff's
reconsideration application was not timely, and because he has
presented no basis to support his claim for reimbursement, we
affirm.
The following facts are taken from the record. The parties
share two daughters, one of whom was emancipated on April 30,
2009, and the other on April 7, 2010. Beforehand, effective July
2006, plaintiff was declared disabled and began receiving social
security disability (SSD) benefits, and the children derivative
benefits. As a result of the children's emancipation, plaintiff's
child support obligation was terminated effective April 7, 2010,
becoming an arrears-only obligation.
The trial court entered an order on April 13, 2012, confirming
plaintiff satisfied the child support arrears as of February 2012.
As a part of the relief considered by the trial court in the April
13, 2012 order, plaintiff sought reimbursement of child support
paid from April 2010 to February 2012, claiming defendant had been
overpaid. The trial court denied his request, noting plaintiff's
SSD benefits had been garnished during this time period and the
funds applied to satisfy plaintiff's child support arrears.
Plaintiff filed a motion more than three years later seeking
reconsideration of the April 13, 2012 order denying him
reimbursement of child support from April 2010 to February 2012.
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The trial court entered the December 3, 2015 order denying
reconsideration as not timely.
Plaintiff challenges this order asserting his SSD benefits
were continually garnished until February 2012 "in disregard of
derivative benefits [the children] received from [the] social
security administration." Specifically, he argues the garnishment
continued even though child support terminated in April 2010, and
claims he should be reimbursed the sums paid for the twenty-two
month period between April 2010 and February 2012.
A decision whether to deny a motion for reconsideration is
addressed to the trial judge's discretion. Fusco v. Newark Bd.
of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002). Pursuant to
Rule 4:49-2, "a motion for . . . reconsideration . . . shall be
served not later than 20 days after service of the judgment or
order upon all parties by the party obtaining it." The twenty-
day time period within which to seek reconsideration cannot be
relaxed. See Baumann v. Marinaro, 95 N.J. 380, 388-89 (1984); see
also R. 1:3-4(c). We see no reason to disturb the trial judge's
decision to deny reconsideration. Plaintiff's application in 2015
seeking reconsideration of an order entered in 2012 was grossly
out of time.
Even if we were to reach the substance of plaintiff's claims,
there would be no basis to revisit the April 13, 2012 order.
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Plaintiff has not objectively demonstrated the alleged overpayment
of child support after the emancipation of the second child.
Although plaintiff's child support obligation ended when the
second child was emancipated, plaintiff still had arrears, which
Probation confirmed were paid off in February 2012. SSD benefits
are considered income for child support purposes. Child Support
Guidelines, Pressler & Verniero, Current N.J. Court Rules,
Appendix IX-B to R. 5:6A at www.gannlaw.com (2017) (see
"Government Benefits for the Child" stating SSD "is counted as
income . . . for the parent whose contribution is the source of
the benefit."). Therefore, SSD benefits are not immune from
garnishment to satisfy child support arrears.
Furthermore, plaintiff's argument the children's derivative
benefit obviated the garnishment of his SSD is belied by the legal
authority cited in his brief. Indeed, as noted in the Child
Support Guidelines, a child's receipt of derivative benefits
eliminates child support only if the benefits are greater than the
child support and reduce the total support obligation to zero.
Child Support Guidelines, Pressler & Verniero, Current N.J. Court
Rules, Appendix IX-A(10)(c)(2) at www.gannlaw.com (2017). There
is no evidence the derivative benefits reduced plaintiff's child
support to zero or eliminated his arrears obligation.
Affirmed.
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