Before Judges King, Kleiner, and Carchman.
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 1999
On appeal from Superior Court, Chancery Division, Family Part, Bergen County.
Defendant Joseph Halliwell appeals from the denial of a post-judgment of divorce motion, in which he sought modification of a child support order. Defendant also sought an order crediting his arrears for the period following his incarceration in Ohio, where he was sentenced in December 1995 to a custodial term of four to fifteen years. The disposition of the appeal requires us to reconcile two conflicting Chancery Division decisions, both of which address the effect of a support obligor's incarceration on a pre-incarceration support order. See Bergen County v. Steinhauer, 294 N.J. Super. 507 (Ch. Div. 1996); Topham-Rapanotti v. Gulli, 289 N.J. Super. 626 (Ch. Div. 1995).
The motion judge relied solely upon Topham-Rapanotti, supra, and concluded that defendant's incarceration was a voluntary act that precluded him from being relieved of his child support obligation. The judge did not suspend defendant's obligation to pay weekly support through the probation department. However, the judge did credit defendant's arrearage with payments received by plaintiff from the Social Security Administration, which were attributable to a disability claim filed by defendant prior to his incarceration. See Herd v. Herd, 307 N.J. Super. 501, 503 (App. Div. 1998); R. 5:6A; Pressler, Current N.J. Court Rules, App. IX-A (2000).
We conclude that the motion judge erred in failing to suspend defendant's obligation to pay weekly support through the probation department. Although defendant's child support obligation will continue and arrears will accrue, defendant will not be in violation of litigant's rights, see Rule 1:10-3, during his continued incarceration and additional enforcement proceedings will not be necessary. At such time as defendant is paroled or released by the State of Ohio, he will be required to appear before the Family Part to file a case information statement predicated upon his then current income and will be required to pay child support and reduce the accumulated arrearage. We therefore affirm in part and reverse and remand in part for modification of the order.
The parties were married in 1982. Two sons, ages twelve and ten, were born of the marriage. The parties resided together until plaintiff secured a domestic violence restraining order on August 4, 1988. Under the terms of that order, defendant was required to pay $110 per week for child support. Both children remained in plaintiff's custody.
On November 18, 1988, defendant's leg was amputated as a result of injuries he sustained in a motorcycle accident. Thereafter, defendant applied for and was granted Social Security disability benefits in the amount of $451 per month. Disability benefits were also paid to plaintiff for the children's benefit.
On September 17, 1990, a judgment of divorce was entered. The judgment reduced defendant's child support obligations to seventy-five dollars per week for the two children. Defendant's arrearage as of that date was also adjusted. The record on appeal does not reflect the exact reason for the support and arrearage adjustment; however, we may infer that defendant's reduced income and plaintiff's receipt of Social Security disability benefits on behalf of the children were sufficient reasons for the reduction and adjustment.
In January 1991, defendant was incarcerated in Paterson, New Jersey, for fourteen months. The Social Security Administration discontinued payment of disability payments to defendant during this incarceration. It is unclear from the record if the benefits paid on behalf of the children were also discontinued coincident with his incarceration.
On December 8, 1995, defendant was sentenced in Ohio to a custodial term of four to fifteen years. It is clear from the record that upon his incarceration in Ohio, defendant's disability benefits were again terminated; however, plaintiff has indicated that the benefits on behalf of the children were not terminated. The records of the probation department indicate that it continued to charge defendant's support obligation at the rate of seventy-five dollars per week.
In a motion returnable July 24, 1998,*fn1 defendant sought: a modification of his child support obligation from seventy-five dollars per week to zero dollars per week during incarceration; a credit on his arrears for all payments received by his children from the Social Security Administration; and an order requiring the probation department to correct its records to reflect any adjustment allowed by the Family Part.
Defendant claims that the court incorrectly found his incarceration in Ohio to be a voluntary act that precluded his entitlement to a support reduction during his incarceration. We disagree.
Our courts are authorized to modify alimony and support orders "as the circumstances of the parties and the nature of the case" require. N.J.S.A. 2A:34-23. Thus, such obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citations omitted). The burden is on the party seeking modification to show "such 'changed circumstances' as would warrant relief from" the current obligation. Id. at 157.
The Lepis Court detailed several situations that have been considered changed circumstances warranting modification. Some of those include: an increase in the cost of living; increase or decrease in the supporting spouse's income; and illness, disability or infirmity arising after the original judgment. Id. at 151 (citations omitted).
Current earnings are not the sole criterion to establish a party's obligation for support. Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.), certif. denied, 81 N.J. 52 (1979). The potential earning capacity of an individual, not his or her actual income, should be considered when determining the amount a supporting party must pay. Mowery v. Mowery, 38 N.J. Super. 92, 105 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956).
Where the supporting parent's income is reduced voluntarily, requests for modification routinely have been denied in New Jersey without regard to whether the reduction was incurred for the purpose of avoiding the support obligation. See Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992) (holding that "[a] parent who voluntarily leaves the world of gainful employment, for however good a reason, does not foreclose inquiry into the need for child support and the responsibility of that parent to supply it[,]" thus permitting a court to impute income to an obligor); Lynn v. Lynn, supra, 165 N.J. Super. at 340-41 (leaving the field of one medical specialty to pursue an education in another medical specialty was not cause to reduce a child support obligation); Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982) (finding that the support obligation of an underemployed obligor will not be modified where the obligor chooses to wait passively for employment in his or her field).
We fully recognize that imprisonment of an obligor is quite different from an obligor's failure to remain employed or an obligor's choosing to change employment resulting in a diminution of income either permanently or temporarily. In fact, this opinion is not designed to relieve an obligor of a support ...