On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FM-20-1435-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges S.L. Reisner and Gilroy.
Plaintiff Michelle Walker appeals from a May 11, 2006 order of the trial court denying her application to reinstate child support retroactive to April 24, 1998, and a December 19, 2006 order denying her motion for reconsideration. Because we conclude that the Family Part judge should have held a plenary hearing to resolve material factual disputes before deciding, on equitable grounds, to relieve defendant Francis Walker of approximately eight years of child support obligations, we reverse and remand this matter for further proceedings.
This appeal arises from the disposition of plaintiff's application, filed in 2006, to re-establish defendant's child support obligation, which had been suspended by a court order entered in 1995, and to impose that child support obligation on a retroactive basis going back to 1998, when plaintiff regained legal custody of the couple's two children. The court determined to re-establish child support but to deny retroactivity.
These are the most pertinent facts. The parties were divorced in 1992. Defendant was ordered to pay plaintiff ninety-one dollars per week in child support for the couple's two children. According to her certification in support of her 2006 application, plaintiff was incarcerated from February 1995 until October 1995, during which time the children lived with her sister. While she was incarcerated, defendant was arrested for failure to pay child support. At a hearing which plaintiff did not attend and of which she contends she received no notice, Judge Callahan entered an order on June 28, 1995, suspending defendant's "child support and arrears" because he was "collecting social security." The record does not reflect what evidence defendant had presented to Judge Callahan concerning his financial situation.
Thereafter, the record reflects a 1997 application by the Board of Social Services to enforce child support. Plaintiff has supplied us with an order entered by Judge Callahan dated May 15, 1997, directing defendant to pay $50 per week on arrears of $1092 owed to plaintiff and $4995 owed to the Board of Social Services. The same order directed that a hearing be scheduled on defendant's ability to pay, as he claimed to be homeless and living on city welfare. Between 1998 and 2002, the Board filed a series of applications to enforce child support, all of which were unsuccessful because, according to the Board, defendant could not be located for purposes of service.
In the meantime, plaintiff, who had been attending a drug rehabilitation program, regained physical custody of the children in 1997 and obtained physical and legal custody by order entered on April 24, 1998. She was "on welfare" during some of the time between 1997 and 2005, but claimed in her 2006 motion certification that she did not receive notice of the Board's various child support applications. She attested that she did not realize that no ongoing child support order was in effect, until she was finally terminated from receiving welfare benefits in 2005, and was "informed by Probation that there was not a child support order and had not been a child support order since it was suspended in 1995." Accordingly plaintiff, through her Legal Services attorney, filed the 2006 application to reinstate child support.
Defendant, who was pro se, filed a certification in opposition to the application. He agreed that his initial child support obligation was ninety-one dollars per week. However, he contended that he, and not plaintiff's sister, had physical custody of the children while plaintiff was incarcerated. He denied any knowledge of attempts to serve him with the later child support applications. He contended that when he was "released from prison in 2003 to the Intensive Supervision Program and went to work," he assumed that certain deductions from his pay "were for the purpose of child support." He also attested that he was currently a full-time college student with an income of $196 per week. He requested that any child support order be effective as of the date of the hearing rather than retroactive, as "[a] retroactive order would not only devastate my meager finances it would also jeopardize my education . . . to become a Certified Alcohol and Drug Counselor."
In reply, plaintiff filed a certification conceding that defendant had custody of the children for a time, but contending that the Division of Youth and Family Services took the children from his custody on January 30, 1997 due to his drug use and neglect of them. She conceded that she did not officially regain custody of the children until April 24, 1998. She also agreed there was no dispute that "arrears payments have been deducted from defendant's pay check for years." Apparently, no current support was being assessed. She modified her initial request to seek support retroactive to April 24, 1998.
In her reply papers, plaintiff also submitted a certification from the deputy counsel to the Union County Division of Social Services (UCDSS) attesting that plaintiff had received public assistance on various dates between September 1994 and August 31, 2005, and that the UCDSS had attempted to obtain child support orders but had been unable to locate defendant to serve him with the applications. The certification also attested that Probation apparently misconstrued the 1995 order suspending defendant's child support obligation as having terminated his obligation. The certification also indicated that the agency joined in plaintiff's application to reinstate or re-establish defendant's child support obligation on a retroactive basis and asked that the arrears be awarded to the UCDSS for the periods of time when plaintiff was receiving public assistance. None of the parties filed briefs in support of or opposing the motion.
A second Family Part judge heard plaintiff's application on March 30, 2006. In this and all subsequent hearings, the parties were placed under oath prior to the hearing, but there was no formal testimony and no opportunity for cross-examination. At the hearing, plaintiff's counsel conceded that both parties were apparently under the mistaken assumption that defendant was subject to a continuing child support order, neither realizing that the fifty dollars per week being deducted from his pay was only for the 1995 arrears. In his comments to the court, defendant conceded that he was not on "social security" in 1995, but he contended he never said that to the court; rather, he claimed he told the court he "was on Social Services at the time. They may have misunderstood me. . . ." The UCDSS attorney, however, indicated that even if defendant had been receiving welfare benefits, he would not have been obligated to pay child support. The attorney offered to obtain the information concerning what, if any, public benefits defendant had received. Defendant also contended that a large child ...