M.R. VS. E.G., JR. (FD-07-3602-14, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3639-17T2
M.R.,
Plaintiff-Respondent,
v.
E.G., JR.,
Defendant-Appellant.
___________________________
Submitted January 29, 2019 – Decided March 19, 2019
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FD-07-3602-14.
Community Health Law Project, attorneys for appellant
(Rehana H. Rasool, on the briefs).
Kevin C. Orr, attorney for respondent.
PER CURIAM
This appeal arises out of a dispute concerning child support. Defendant,
the father, appeals from a Family Part order, dated March 6, 2018, which denied
his motion to reduce his child support obligation and suspend enforcement of
that obligation. Defendant certified that he was disabled, unable to work, and
he submitted certain medical records supporting that position. Plaintiff, the
mother, disputed defendant's claims and argued that defendant could work and
should be compelled to seek work. Given that there were material disputed
factual issues concerning defendant's disability and ability to work, we reverse
and remand for a plenary hearing. 1
I.
We summarize the relevant facts from the record that was provided on this
appeal. Defendant and plaintiff have one child together: a daughter born in
January 2011. They share joint legal custody of their daughter and plaintiff is
the parent of primary residential custody. On December 16, 2016, a Family Part
judge entered an order establishing defendant's child support obligation at $106
per week. That obligation was based on defendant's then weekly income of
$569.
In August 2017, defendant filed a motion to reduce his child support
obligation and suspend enforcement of that obligation. In support of that
motion, he certified that he was disabled and unable to work. He also certified
that his doctor had advised him that he was permanently disabled. Defendant
1
We use initials to protect the parties' privacy interests. See R. 1:38-3(d).
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also represented that he had applied for Social Security disability benefits, his
application had been denied, he was appealing that denial, and his appeal was
pending. Finally, defendant certified that his sole income at that time was
$96.50 per month in general assistance benefits from County Social Services. 2
Plaintiff opposed defendant's motion and cross-moved requesting an
increase in child support because defendant was no longer exercising any
overnight visits with the child. On October 12, 2017, the parties and counsel
appeared for argument before a Family Part judge on defendant's motion and
plaintiff's cross-motion. The court entered an order that (1) reduced defendant's
child support obligation to $82 per week; (2) suspended enforcement of
defendant's child support obligation for three months; (3) provided that
defendant could seek a further extension of the suspension of enforcement; and
(4) directed defendant to submit to the court his medical records to support his
claim of disability. In calculating defendant's child support obligation, the
Family Part judge imputed income to defendant of $470 per week. That imputed
2
At the time defendant filed his application in August 2017, there was a
scheduled child support enforcement hearing. That hearing took place on
August 21, 2017, and an order was entered suspending for six months the
enforcement of defendant's child support obligation.
A-3639-17T2
3
income was based on an average of defendant's prior weekly earnings and what
he would make earning the minimum wage for a forty-hour work week.
In December 2017, defendant filed another motion to reduce his child
support and to extend the suspension of the enforcement of his child support
obligation. In support of that motion, defendant submitted a certification that
he was disabled, unable to work, and had been advised by his doctor that he was
permanently disabled. Defendant also certified that his only income was still
$96.50 per month in general assistance from the County Social Services.
Finally, defendant represented that his request for Social Security benefits was
still pending appeal.
While defendant's motion was pending, in late January 2018, defendant
submitted certain medical records to the court to support his claim that he was
disabled and unable to work. Those medical records included a report from
defendant's doctor who stated that defendant was not able to work and would
not be able to work until at least August 2018. Records submitted at the October
12, 2017 hearing included a letter from a case manager with the Social Services
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department. That letter "certified" that defendant was disabled and was
receiving medical treatment for his illnesses. 3
Plaintiff opposed defendant's second motion to reduce his child support
and cross-moved to enforce defendant's child support obligation. She argued
that defendant had not shown that he was unable to work. Plaintiff asserted that
defendant should be ordered to seek employment, including providing proof of
job searches, and if he failed to do so, she should be allowed to seek an ex parte
bench warrant to have defendant arrested.
On March 6, 2018, the family court heard oral arguments concerning
defendant's December 2017 motion and plaintiff's cross-motion. While the
parties appeared and while they were placed under oath, neither party gave
testimony. Instead, the court heard oral argument from counsel and did not
conduct an evidentiary hearing. The court denied defendant's motion to reduce
his child support and to suspend enforcement of his child support obligation.
3
When the family court directed defendant to submit certain medical records in
the order of October 12, 2017, defendant's counsel argued that some of those
records were confidential and should not be submitted to the court for in camera
review. On January 17, 2018, the court sent the parties' counsel a letter stating
that defendant "may submit whatever medical documentation he deems relevant
to [his] application." The court went on to explain that it "would then determine
the adequacy of that supporting documentation." Thereafter, defendant
submitted certain medical records, but those records were only submitted to the
court and they apparently have not been provided to plaintiff or her counsel.
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The court explained its reasons for those rulings on the record. Specifically, the
court found that defendant had not shown a change of circumstances. In that
regard, the court reasoned that the medical records provided by defendant did
not show a change of circumstances and the court found that defendant could
work.
The court also reasoned that defendant was not entitled to a plenary
hearing because the Social Security Administration had determined in March
2017 that defendant could work and, since that determination, defendant had not
shown a sufficient deterioration in his medical condition to convince the court
that he could not work. In making that ruling, the court noted that defendant
had submitted medical records showing that his medical condition had worsened
since March 2017, but the court reasoned that the records only showed a " mild
worsening" and, thus, those records were not sufficient to establish that
defendant could not work. Accordingly, the court entered an order on March 6,
2018, denying defendant's application to reduce his child support without
prejudice and requiring defendant to provide proof of fifteen job searches per
month.
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II.
Defendant now appeals from the March 6, 2018 order. He argues that the
family court erred in: (1) not finding that he had established a prima facie
showing of a change in circumstances; and (2) not granting him a plenary
hearing on whether his changed circumstances warranted a reduction or
elimination of his child support obligation. Having reviewed the record, we
agree that defendant was entitled to a plenary hearing.
Orders for child support "may be revised and altered by the court from
time to time as circumstances may require." N.J.S.A. 2A:34-23. We review
Family Part judges' decisions to modify child support under an abuse of
discretion standard. J.B. v. W.B., 215 N.J. 305, 325-26 (2013). "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."'" Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Child support orders are subject to modification on a showing of changed
circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The motion judge may
revise child support when the party seeking modification satisfies the burden of
making a prima facie showing of changed circumstances warranting relief or
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alteration of the prior order. Id. at 157. "Only if such a showing is made does
the court have the right to order full discovery regarding the financial
circumstances of the other spouse." Isaacson v. Isaacson, 348 N.J. Super. 560,
579 (App. Div. 2002). "A plenary hearing is necessary to adjudicate the matter
only if there are genuine issues of material fact." Ibid. (first citing Lepis, 83
N.J. at 159; then citing Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App.
Div. 1998)).
Significant changes in the income or earning capacity of either parent may
result in a finding of changed circumstances. W.S. v. X.Y., 290 N.J. Super. 534,
539-40 (App. Div. 1996). Accordingly, an illness or disability affecting a
supporting parent's ability to work can constitute a change of circumstances.
See Lepis, 83 N.J. at 151. "[T]he changed-circumstances determination must be
made by comparing the parties' financial circumstances at the time the motion
for relief is made with the circumstances which formed the basis for the last
order fixing support obligations." Beck v. Beck, 239 N.J. Super. 183, 190 (App.
Div. 1990).
Here, defendant's child support obligations were fixed in orders entered
on December 16, 2015, and October 12, 2017. Significantly, however, in fixing
the child support obligation at $82 per week in October 2017, the family court
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did not conduct an evidentiary hearing to establish either that a changed
circumstance had occurred or that changed circumstances warranted a reduction.
Instead, when the court fixed child support at $82 per week, the court made no
finding concerning defendant's ability to earn income. 4 The court did suspend,
for three months, the enforcement of defendant's child support obligation. The
court also directed defendant to submit medical documentation concerning his
disability.
When defendant filed a second application in late December 2017, he
supported that application with specific medical records. Those records
included a report from a doctor and a letter from a Social Services case manager.
Both documents stated that defendant was disabled and was unable to work at
that time. Those documents provided a sufficient basis for defendant to carry
his prima facie showing of a change in his ability to work. See Golian v. Golian,
344 N.J. Super. 337, 341 (App. Div. 2001) (requiring production of evidence to
carry burden of proving disability).
Plaintiff disputed that defendant had experienced a change of
circumstances. Plaintiff's opposition, however, only pointed out that there were
4
We were not provided with the transcript of the hearing from October 12,
2017. Nevertheless, no party contends that there was an evidentiary hearing on
October 12, 2017.
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material and genuine fact disputes concerning whether defendant was disabled
and whether he could work. Accordingly, defendant was entitled to a plenary
hearing on that issue. See Segal v. Lynch, 211 N.J. 230, 264-65 (2012).
Defendant's entitlement to a plenary hearing is also supported because, at
least at the time that the record was submitted to us, defendant still had a pending
appeal of his denial of Social Security benefits. If defendant is found by the
Social Security Administration to be disabled, such adjudication "constitutes a
prima facie showing that [defendant] is disabled, and therefore unable to be
gainfully employed, and the burden shifts to [plaintiff] to refute that
presumption." Golian, 344 N.J. Super. at 342-43. In the meantime, the burden
to prove disability remains with defendant. See id. at 341.
Here, the Family Part judge effectively rejected defendant's medical
records and ruled that defendant could work. The judge, however, did not have
the record that would allow for such a factual finding. Instead, the judge had a
record that showed that there were genuine issues of material fact concerning
defendant's disability and his ability to work. Indeed, defendant had certified
that he was disabled, unable to work, and that his doctor had informed him that
he was permanently disabled. At a minimum, the court needed to assess those
issues at a plenary hearing to determine whether it accepted or rejected those
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factual contentions. See Lepis, 83 N.J. at 159; Tretola v. Tretola, 389 N.J. Super.
15, 20-21 (App. Div. 2006) (holding that when genuine issues of facts are raised
in the parties' respective assertions, a plenary hearing must be conducted).
Reversed and remanded for a plenary hearing. We do not retain
jurisdiction.
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