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Herd v. Herd

February 06, 1998


Argued January 12, 1998

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County.

Before Judges Havey, Landau and Newman *fn1.

The opinion of the court was delivered by: The opinion of the court was delivered by Landau, J.A.D.

This is the appeal of defendant Edward Herd from a Family Part order which denied his motion for modification of prior child support and alimony orders, for credit against the child support by reason of certain Social Security payments, and for discovery of the Social Security records of plaintiff Linda Herd.

Pursuant to R. 2:5-1(b), the motion Judge has provided a comprehensive opinion containing his findings of fact and Conclusions of law respecting the two broad areas of contention: (1) defendant's asserted generalized need for changed circumstances Lepis *fn2 relief as to the previously ordered alimony and child support awards, and (2) defendant's particularized contention that governmental benefits paid by Social Security for the child of the marriage must be deducted from the child support amount calculated under Appendix IX-A (Considerations in Use of Child Support Guidelines) before calculating each parent's share of the total child support obligation.

Respecting the issue of changed circumstances, we are satisfied that the Judge's findings and Conclusions should be affirmed substantially for the reasons set forth in his letter opinion of January 15, 1997. We note, however, and accept, plaintiff's unrebutted correction, supported by her certification, which shows that the Social Security payment made to the parties' child arises by reason of plaintiff's status as a recipient of Social Security disability payments, and not by reason of SSI (Supplemental Security Income) payments. In consequence, we differ with the Judge's resolution of the second issue.

Appendix IX-A, and the Sole-Parenting Worksheet contained in Appendix IX-C, convince us that the Judge erred in failing to give consideration to the payments received from Social Security for the benefit of the child. These payments are not, as stated in the R. 2:5- 1(b) opinion, the result of plaintiff's entitlement to SSI, but arise by reason of her entitlement to non-means-tested Social Security disability payments.

We attach hereto as Exhibit A, a copy of revised paragraph 10.b to Appendix IX-A, and a copy of the new instructions respecting Line 12 of the Sole-Parenting Worksheet contained in Appendix IX-B.

We read these portions of Appendices IX-A and IX-B unambiguously to require deduction from the basic support computation those non-means- tested benefits paid to or for the dependent child that arise by reason of either parent's disability and which have not resulted in any diminution of Social Security payments to plaintiff.

As explained in Pressler, Current N. J. Court Rules, comment on R. 5:6A (1998), the guidelines prescribed by Appendix IX-A to IX-H were recently extensively revised, subsequent to entry of the order and opinion in this case. Given the significance of these revisions in clarifying the rationale appropriate to formulating an equitable approach to calculating and apportionment of child support, our decision should be consistent with the current Appendices. We think it likely that, in promulgating the comprehensive guidelines, the Supreme Court intended that they be deemed applicable to pending cases such as this. At the very least, promulgation of the new Appendices must inform the judicial response as to an equitable method of calculating the total amount needed for support of the child. De La Ossa v. De La Ossa, 291 N.J. Super. 557 (App. Div. 1996), which treated with earlier versions of the guidelines, is of limited utility in current interpretation. Its facts, in any event, are not congruent with those here involved.

Consistent with the policy clarifications enunciated in the new Appendices, we remand for reconsideration by the Family Part the issue of the effect of Social Security benefits received by the child of the marriage attributable to plaintiff's Social Security disability status. The total child support amount shall be recalculated under Appendices IX-A and IX-B (see instructions for Lines 12 and 13 in Appendix IX-B). To the extent of the percentage of support assigned to defendant under the guidelines, an appropriate change in the amount to be paid by defendant for child support (Line 26) shall be made. We leave to the equitable discretion of the Family Part the effective date of the modification so calculated. It shall, however, be not later than the September 1, 1997 effective date of the revised Appendices.

Reversed and remanded in part; affirmed in part.

Exhibit A

Appendix IX-A, paragraph 10.b ...

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