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PROCEDURAL HISTORY

On March 3, 2006, defendant moved the Superior Court for a reduction in his support obligations due to disability. Hearing Officer Michael Barry, Esq., suspended defendant’s child support obligations and set a hearing six months later for review.

On October 18, 2006, Judge Currier, J.S.C., continued the March 3, 2006 Order until December 31, 2006,   upon which time Her Honor wanted additional verification of defendant’s permanent disability.

On February 16, 2007, defendant filed a Motion for Modification of Child Support and Suspension of Arrears Without Accumulation alleging permanent disability. [Da1] Plaintiff was represented by the Probation Department. No responsive papers were filed.

The court held a hearing on April 18, 2007 concerning defendant’s February 16th Motion. [1T]

On May 9, 2007, the court entered an Order with Findings of Fact and Conclusions of Law finding that defendant had not met his burden of proving permanent disability. [Da40; 2T]

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STATEMENT OF FACTS

Plaintiff and defendant have one child together, Marlon XXXXXXX (hereinafter “Marlon”) who was born out of wedlock. Marlon resides with plaintiff. [Da1, ¶ 1-2] Defendant had formerly been employed as a security officer earning approximately $17.00 per hour at Wackenhut Security Company (hereinafter “Wackenhut”) located in Fort Monmouth, New Jersey. [Da1, ¶ 3]  His job duties included making arrests and search vehicles entering military facilities. [1T-17:6-15]

He was transferred by the company to a military base to serve in the same capacity located in Newport News, Virginia. [Da1-2, ¶ 3] Three letters from Wackenhut concerning the transfer are attached at Da10-12. He started his employment at the new location on July 11, 2005, and his Day was decreased to $15.00 per hour. [Da2, ¶4]
On August 21, 2005, defendant sustained a serious injury outside of the work environment to his right foot. Photographs of the injuries are located at Da15-16. A physical therapy report shows that defendant required, inter alia, balance training and electrical stimulation for the injury. [Da13] Defendant also suffered injuries to his spine. The Imaging Consultation report provided, inter alia, “Severe Spondylosis at L5/S1 associated with bilateral spondylosis, and grade two anterior subluxation. There is advanced degenerative disc disease at 5/1, with marginal osteophytosis. There is moderate degenerate desiccation and mild narrowing of the 4/5 disc space.” [Da14] See additional report at Da17, Da21-22, Da24,  Da19-20 (operation report) and Da28-30 (progress report).

Two months post-injury, Janaf Foot and Ankle Center, P.C., submitted a script dated October 19, 2005, that defendant would be unable to work for up to four months. [Da23] Neurosurgical Specialists, Inc., submitted a script dated December 18, 2006 that defendant would be unable to work for an additional minimum of 4-6 months. [Da18] Defendant has not yet recovered, is still unable to work, under care of his physicians and wears a large back brace 12 hours a day. He walks with al limp and cannot put full pressure on his injured foot. [Da2-3, ¶ 6] He is not even capable of doing physical therapy. [1T-18:11-12]

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On March 3, 2006, defendant moved the Superior Court for a reduction in his support obligations due to his disability. Hearing Officer Michael Barry, Esq., suspended the support obligations and set a hearing for six months later. On October 18, 2006, Judge Currier, J.S.C., continued the March 2006 Order until December 31, 2006, at which time Her Honor wanted additional diagnostic reports and proof of defendant’s long-term disability and the effect it has upon his ability to obtain employment. The reports, however, were not completed by December 31st because defendant did not receive surgery until December 8th and was not discharged from the hospital until December 12th. There was not enough time to have the reports prepared. [Da3-4, ¶ 10; 2T-6:17 to 7:8; 1T-10:5-17] This was argued extensively with the court during the April 18, 2007 hearing on defendant’s February 16, 2007 Motion for Modification of Child Support and Suspension of Arrears Without Accumulation. [Da1; 1T-13:5 to 15:4]
When the reports were not produced by December 31, 2007, the court entered an enforcement order to the Commonwealth of Virginia to begin garnishing defendant’s $1,475.00 long-term disability income in the amount of $500 leaving defendant, his wife and his two children with only $900.00 per month to live on. Defendant’s rent alone is $880.00 per month and it was pointed out that defendant cannot apply for social security benefits while receiving the benefits from Prudential. He would receive the Prudential benefits for 24 months. [1T-14:23 to 17:5; 1T-] Defendant’s wife is a homemaker and cares for their two year old child. [1T-15:18-15] Defendant’s father, who is representing him in this case, is currently paying for defendant’s rent. [1T-48:18-25]

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B. Findings of Fact and Conclusions of Law.

The judges findings of fact and conclusions of law were rendered on May 3, 2007. [2T]
 The judge took issue with the fact that Prudential awarded defendant long-term disability benefits for a period of 24 months. At the expiration of the said 24 months, Prudential would make a finding of whether there is a permanent disability. The court took issue that at the time of the hearing 24 months had not passed, hence there was no proof of permanent disability. [2T-3:9 to 4:21] The court also found that defendant had not provided updated medical reports showing continued disability [2T-5:5 to 6:3; 2T-7:9-20], that Prudential’s finding of long-term disability was insufficient for the court to make a finding of long-term disability [2T-7:24 to 8:10] and that it is “[the] court’s experience” that persons return to work after having lumbar surgery. [2T-5:20-23]

STANDARD OF REVIEW
“The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Furthermore, [b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence. However, [a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.” Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (inner quotation marks and citations omitted).

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ARGUMENT

I. THE TRIAL COURT ABUSED ITS DISCRETION ALLOWING ARREARS TO ACCRUE FROM THE DATE OF INJURY ON AUGUST 21, 2005 TO AT LEAST MAY 2007, ESPECIALLY SINCE DEFENDANT WAS TERMINATED FROM EMPLOYMENT ON DECEMBER 7, 2005 DUE TO HIS DISABILITY

As set forth in the Statement of Facts, Two months post-injury (injury occurred on August 21, 2005), Janaf Foot and Ankle Center, P.C., submitted a script dated October 19, 2005, that defendant would be unable to work for up to four months. [Da23] Two months later Neurosurgical Specialists, Inc., submitted a script dated December 18, 2006 that defendant would be unable to work for an additional minimum of 4-6 months. [Da18] Defendant has not yet recovered, is still unable to work, under care of his physicians and wears a large back brace 12 hours a day. He walks with a limp and cannot put full pressure on his injured foot. [Da2-3, ¶ 6] He is not even capable of doing physical therapy. [1T-18:11-12] His employment was terminated due to his disability on December 7, 2005. [Da10]

Defendant has received no suspension of his obligation to pay child support during those periods of time and the court allowed arrears to continue to accumulate. “Generally, a non-custodial parent is relieved from child support obligations where he or she ‘is totally disabled’ and ‘indisputably indigent’…”. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

The trial court in this matter totally disregarded the fact that defendant is receiving only $1,475.00 per month in long-term disability payments from Prudential to support himself, his wife and his two children. Whereas defendant’s rent alone is $880.00 per month, the court has ordered that a little over $500.00 per month be garnished from the $1,475.00, leaving defendant with only $900.00 per month to live on. This would leave defendant with only $20.00 per month to live on after his rent payment if his father was not temporarily paying his rent for him. A parent, the undersigned retired attorney, age 66, should not have to pay his son’s rent in order for his son’s wages to be unreasonably garnished. Defendant has submitted a case information statement that contains no inflated expenses and shows his inability to pay. [Da45] Defendant is not voluntarily unemployed.

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Defendant, at a minimum, should have been entitled to a temporary suspension of his child support obligations and the accumulation of arrears.

II. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT DEFENDANT IS NOT PERMANENTLY, OR AT LEAST STILL TEMPORARILY, DISABLED AND UNABLE TO WORK

In Lepis v. Lepis, 83 N.J. 139 (1980), the court held that a party’s disability constitutes a change of circumstances justifying a post-judgment modification in child support. Id. at 151. Likewise, in Globman v. Globman, 158 N.J. Super. 338 (App. Div.), certif. denied, 77 N.J. 493 (1978), the Appellate Division accepted the fact that the wife’s “serious mental illness which has for some time required her intermittent hospitalization” was sufficient reason for her inability to earn an income. Id., 158 N.J. Super. at 340.
Crespo, supra, pertained to a father who was ordered to pay child support but was living on Social Security Income. Defendant respectfully submits that the same standard should be applied in a case where a party’s sole source of income is from a disability insurance plan that disentitles the defendant to Social Security Income until the long-term disability benefits from the private insurance expires. The Crespo court wrote that,

Generally, a non-custodial parent is relieved from child support obligations where he or she is totally disabled and indisputably indigent, surviving solely on SSI benefits directed at providing him [or her] with the legislatively-established minimum level of subsistence. The intent of the child-support framework to ensure that parents support their children has no application to those parents whose sole source of income is SSI, and where such parents have no ability to generate any additional income. Accordingly, SSI benefits cannot be included in the child-support calculus. However, a child support order may be entered against a parent who is an SSI recipient where the court concludes that the parent is earning or has the ability to earn additional income. Said another way, SSI benefits should not be included in the calculation of child support when the disabled parent receives no other income, and no other income can be imputed to him. Moreover, [b]enefits received through the SSI program are exempt from attachment, garnishment, levy, execution, or any other legal process, even for child support or alimony.

Id. at 194-95
(inner quotation marks and citations omitted).

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There is little difference between the receipt of disability payments from the Social Security System and a finding of long-term disability from an insurance carrier. To date, the defendant in the case at bar is under a physician’s care, wears a back brace and walks with a cane. Surely that constitutes a change in circumstances under Lepis.
In dicta in Bergen County Bd. of Services v. Steinhauer, 294 N.J. Super. 507 (Ch. Div. 1996), the court likened incarceration to long-term disability and held that such constitutes an inability to pay constituting a change of circumstances. “Incarceration is more comparable to a long term disability preventing the individual from being able to work and requiring him to rely on public assistance for room and board. Long term disability constitutes sufficiently changed circumstances for a reduction in child support.” Id. at 516.
It is also appears to be the public policy of the State of New Jersey that disability benefits should not be garnished. N.J.S.A. 17:18-12 provides,

No money or other benefit paid, provided or allowed to be paid, provided or allowed by any stock or mutual life, health or casualty insurance corporation on account of the disability from injury, or sickness of any insured person under any policy of insurance, whether heretofore or hereafter issued, shall be liable to execution, attachment, garnishment, or other process, or to be seized, taken, appropriated or applied by any legal or equitable process or operation of law, to pay any debt or liability of such insured person whether such debt or liability was incurred before or after the commencement of such disability, but this section shall not affect the assignability of any such disability benefit otherwise assignable, nor shall this section apply to any money income disability benefit in an action to recover for necessaries contracted for after the commencement of the disability covered by the disability clause or contract allowing such money income benefit …

Id.

It should also be noted that defendant cannot work at his former job because he was terminated on December 7, 2005 due to his disability. [Da10]

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III. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT DECREASING DEFENDANT’S CHILD SUPPORT OBLIGATION BECAUSE HIS HOURLY EARNING DIMINISHED FROM $17.00 PER HOUR TO $15.00 PER HOUR WHEN HE WAS TRANSFERRED TO VIRGINIA

Defendant had formerly been employed as a security officer earning approximately $17.00 per hour at Wackenhut Security Company (hereinafter “Wackenhut”) located in Fort Monmouth, New Jersey. [Da1, ¶ 3]  His job duties included making arrests and search vehicles entering military facilities. [1T-17:6-15]

He was transferred by the company to a military base to serve in the same capacity located in Newport News, Virginia. [Da1-2, ¶ 3] Three letters from Wackenhut concerning the transfer are attached at Da10-12. He started his employment at the new location on July 11, 2005, and his Day was decreased to $15.00 per hour. [Da2, ¶4] Defendant was not voluntarily transferred. One of the letters dated June 24, 2005, provides,

The purpose of this letter is to inform all concerned individuals that Mr. Troy Whitney has been employed by Wackenhut Services, Inc., at Forth Monmouth, NJ as an armed security officer since May 10, 2004.

Effective July 11th, Mr. Whitney will be transferred to another of our Army Guard project sites at Fort Eustis in Virginia.

Any consideration that can be afforded to Mr. Whitney regarding this matter will most certainly be appreciated by both Mr. Whitney and me during his and his family’s period of transition.

[Da12]

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“The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations. Innes v. Innes, 117 N.J. 496, 504 (1990). One such example relevant to this case is a decrease in the supporting spouse's income. Ibid.” Conway v. Conway, 2006 WL 2418839, *4 (App. Div. 2006) (inner quotation marks omitted).

“A court should look at [1] the motives of the payor, [2] the timing of the conduct that brought about the reduction in income, [3] the payor's ability to meet the mandated support obligations even after the reduction in income, and [4] the ability of the payee to provide for himself or herself[,] [5] as well as the reasonableness of the payor's actions ... [6] the reasonable expectations of the parties at the time of the agreement ... and [7] the opportunity given to the dependent spouse to prepare to live on the reduced support.” Conway, supra, at *4 (inner quotation marks and citations omitted), quoting Kuron v. Hamilton, 331 N.J. Super. 561, 571 (App. Div. 2000), and citing Deegan v. Deegan, 254 N.J. Super. 350, 357 (App. Div. 1992), and Dilger v. Dilger, 242 N.J. Super. 380, 388 (Ch. Div. 1990).

Defendant’s transfer was involuntary, so there was no improper motive or timing issues showing bad faith. Defendant’s ability to pay, given a forty hour work week, diminished by $360.00 per month. Plaintiff, as far as ability to support the child, would not be greatly diminished by a small decrease in the support obligations. A job transfer is not unreasonable, especially when it is involuntary and where the pay decrease was only $2.00 per hour. As to the opportunity to prepare for the decrease in support, defendant continued to pay.

Defendant should be granted a retroactive credit from the date of his transfer on July 11, 2005 up until his termination due to his disability on December 7, 2005. [Da10]

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CONCLUSION

The court should reverse the trial court’s May 3, 2007 Order and Opinion and remand this matter for an Order to be entered of permanent disability for defendant and suspension of his child support obligations. The court should also submit a direction to the trial court to purge defendant’s arrears accumulated since his injury.

Respectfully Submitted,
LAW OFFICES OF XXXXXXX X. XXXXXXXX., ESQ.

________________________________
XXXXXXX XXXXXXX, Esq.
Attorney for Defendant-Appellant

Dated:

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