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Leysath v. Mears

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 26, 2007

LINDA LEYSATH, PLAINTIFF-RESPONDENT,
v.
ERVIN MEARS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-2474-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2007

Before Judges Cuff and Simonelli.

Defendant appeals from the order of April 27, 2007, denying his motion for child support, and granting plaintiff's cross-motion to enforce the order of March 23, 2007. We affirm.

I.

The parties have one child, born March 1, 1997. Plaintiff initially had custody of the child. In May 2002, plaintiff underwent brain surgery, which left her severely visually impaired. By order of March 16, 2004, the court granted primary custody of the child to defendant and parenting time to plaintiff.

The Social Security Administration (SSA) determined that plaintiff is totally disabled and entitled to Social Security Insurance (SSI) disability benefits. She receives $654.25 monthly from SSI and $39 monthly for food stamps. Although defendant owns businesses and rental properties, his total income is unknown.

Defendant failed to comply with the March 16, 2004, order. As a result, plaintiff filed a motion to enforce the order. Defendant filed a cross-motion for child support. On March 23, 2007, the motion judge denied defendant's cross-motion for failure to provide a Case Information Statement (CIS) and proof of income. The judge also entered an order on March 23, 2007, adjusting the parties' parenting time to better facilitate the child's activity schedule and defendant's work schedule.

Defendant filed another motion for child support. Plaintiff filed a cross-motion to enforce the March 23, 2007, order. Defendant did not submit a fully responsive CIS or proof of income. Plaintiff submitted proof of SSI as her sole source of income. By order of April 27, 2007, the judge denied defendant's motion for failure to file a fully responsive CIS and held plaintiff was not obligated to pay child support because SSI was her sole source of income. The judge also granted plaintiff's cross-motion, finding that defendant admitted he failed to comply with plaintiff's parenting time.

II.

In finding a person "disabled," the SSA must determine that he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months. . . ."

42 U.S.C.A. § 423(d)(1)(A). 42 U.S.C.A. § 423(d)(2)(A) provides:

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

Here, the SSA determined that plaintiff is totally disabled and entitled to SSI disability benefits. Her SSI benefits are her sole source of income. A non-custodial parent is relieved from child support obligations if he or she "is totally disabled" and "indisputably indigent, surviving solely on SSI benefits." Burns v. Edwards, 367 N.J. Super. 29, 41 (App. Div. 2004). In addition, Appendix IX-B of the New Jersey Child Support Guidelines specifically excludes SSI benefits from income. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2307 (2007). The judge, therefore, properly denied defendant's motion for child support.

III.

Defendant argues that we should reverse that portion of the April 27, 2007 order finding him in violation of plaintiff's parenting time because of the judge's alleged female bias and bias against black families. This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20071226

© 1992-2007 VersusLaw Inc.



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