On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-1797-02.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2006
Before Judges Skillman, Lisa and Grall.
Defendant Beverly Diehl appeals from a post-judgment order entered on plaintiff Nicholas Diehl's application to modify his support obligations under their final judgment of divorce.*fn1 The judge determined that plaintiff was disabled, awarded him counsel fees and costs, reduced his support obligations retroactively and gave him a credit for overpayments. The credits against future support include a credit for a lump sum, retroactive payment of social security disability (SSD) benefits, which the Diehls' child received after her eighteenth birthday.
Defendant claims the trial court erred in awarding the credit for SSD benefits. We conclude: (1) a credit for weeks during which plaintiff had no court-ordered support obligation is not equitable; (2) a credit for the period during which plaintiff was required to pay support at the level set in the final judgment is equitable, Sheren v. Moseley, 322 N.J. Super. 338 (App. Div. 1999); and (3) a credit for benefits paid for weeks during which plaintiff was charged with support at a reduced level was neither equitable nor consistent with the child support guidelines, R. 5:6A; Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2255 (2007).
Defendant also claims error based on the award of counsel fees. Because the award is based predominantly on the trial court's view of the merits of the case, we conclude that our disposition requires modification of the counsel fee award. See Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999).
The relevant facts are not in dispute. Plaintiff and defendant were married on October 19, 1975. Their only child was born on June 24, 1986. Plaintiff was injured on July 19, 2002. The parties subsequently divorced, and the final judgment requires plaintiff to pay weekly alimony of $82 and child support of $180 per week effective January 1, 2003. At the time of the divorce, plaintiff was receiving worker's compensation benefits. Although the judgment requires him to pay additional alimony after returning to work, it does not provide for increased child support.
Plaintiff did not return to work. On February 20, 2003, he applied for SSD benefits. He also filed a civil action to recover damages for his personal injuries. On April 26, 2003, he moved to terminate alimony and modify child support.
Plaintiff settled his civil litigation for $47,550 in June 2004. From that settlement, defendant received $15,807 for alimony and child support and plaintiff received $626.46. The remaining funds were disbursed to pay a worker's compensation lien, a loan against the settlement and the costs of the personal injury litigation.
On March 5, 2005, plaintiff was awarded SSD benefits retroactive to July 19, 2002, the date of his injury. On June 24, 2005, the Diehls' child received a lump sum payment of retroactive SSD benefits in the amount of $11,611. The benefit was for a period of approximately 101 weeks between July 19, 2002 and June 25, 2004, the date of the child's eighteenth birthday. The weekly benefit was approximately $115.
The child resides with her mother and attends college. Plaintiff's SSD benefit is $1239 per month, $14,868 per year. Defendant's current income is $50,390 per year.
The judge terminated alimony effective February 20, 2003. Based on current income and the child support guidelines, the judge reduced child support from $180 to $52 per week retroactive to April 26, 2003. The judge did not consider the retroactive payment of SSD benefits to the child after that date in calculating the reduced child support amount. Instead, the judge awarded plaintiff a credit equivalent to the entire $11,611 benefit. The judge also awarded a credit of $15,807 for funds paid to defendant from ...