On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, FM-02-1669-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 9, 2008
Before Judges Axelrad and Payne.
Defendant Richard O'Brien appeals from the Family Part's April 13, 2007 order denying his application to reinstate his driver's license, which had been administratively suspended pursuant to N.J.S.A. 2A:17-56.41 and Rule 5:7-5(e) for failure to pay child support. Defendant's child support obligation is for arrearages only, which totaled approximately $40,000.
Defendant had claimed there was an equitable reason for his non-compliance with the child support order, i.e. that his disability led to his involuntary unemployment, N.J.S.A. 2A:17-56.43 and R. 5:7-5(e)(4). He further asserted the continued suspension would result in extreme hardship because he needed a license to obtain employment as a truck driver and for periodic medical trips for the parties' daughter, a high school senior who was residing with him.
Judge Hollenbeck rejected defendant's arguments in a supplemental opinion dated May 3, 2007, submitted pursuant to Rule 2:5-1(b). The court noted the parties' June 4, 1996 final judgment of divorce set child support for their three children at $85 per week in recognition that defendant was unemployed, with his support obligation to "be reconsidered" upon obtaining employment. The court was cognizant that the Social Security Administration had deemed defendant qualified for SSI benefits as of December l, 2003, but was not satisfied this fact established a total inability by defendant to sustain employment. Furthermore, defendant had a longstanding history of non-compliance with child support orders even prior to the disability date, including an initial court-ordered driver's license suspension for nonpayment in l996; a denial of a reinstatement application in 2000 due to substantial arrears and nonpayment of the full amount of his obligation; a 2002 order adjudicating him in violation of litigants' rights for failure to pay child support; and a variety of warrants issued for failure to appear at enforcement proceedings and failure to pay child support. Judge Hollenbeck also noted the absence of proof by defendant that his physician had now permitted him to drive a truck or that he had secured employment to support his claim of hardship. The judge commented that a November l7, 2006 order providing that the parties' daughter resided with her mother was inconsistent with defendant's assertion that she resided with him.
Defendant renews his arguments on appeal, focusing particularly on the motion judge's questioning of whether the parties' daughter actually resides with him. We affirm substantially for the reasons articulated in Judge Hollenbeck's written opinion. We add the following brief comments. Defendant has been continuously in arrears and in non-compliance with his support obligation from its onset. Defendant claims to have been dealing with health issues and to have become disabled as far back as l994. Based on the reference to defendant's unemployment in the l996 divorce judgment, it is clear defendant's condition was considered in setting his child support obligation. As it was determined defendant had the ability to pay $85 per week in child support while unemployed, he cannot now contend his unemployment constituted an equitable reason for non-compliance with that order. Moreover, defendant's receipt of SSI benefits in December 2003 does not in and of itself demonstrate a total inability to work. If it did, defendant would not be able currently to obtain employment as a commercial truck driver.
Defendant also failed to provide sufficient proofs regarding current employment to support a claim of significant hardship in the continued suspension of his license. It is clear from Judge Hollenbeck's opinion that the parties' daughter's residence was not a dispositive factor in his decision. Even assuming she resides with defendant, his mere assertion that a license is necessary to drive her to and from the doctor and hospital for "routine" visits does not rise to the level of significant hardship.
We note that N.J.S.A. 2A:17-56.43 and Rule 5:7-5(e)(4) permit a court to allow an obligor to make a lump sum twenty-five percent payment of the past due child support and establish an installment payment arrangement as a condition for reinstatement of a driver's license in substantial hardship situations. If defendant has additional proofs to submit, and is in a position to make a significant payment on account of his obligation, he can re-file an application to restore his license.
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