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Hulse v. Whitney

April 30, 2008

CHRISTINE HULSE, PLAINTIFF-RESPONDENT,
v.
TROY T. WHITNEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD 12-2291-98D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2008

Before Judges Axelrad and Messano.

Defendant Troy T. Whitney and plaintiff Christine Hulse are the parents of one child, a son now eleven years old who resides with plaintiff. Defendant was employed with Wackenhut Security Company at Fort Monmouth making $17.00 per hour when he was transferred in July 2005 to a facility in Newport News, Virginia, resulting in a two dollar per hour decrease in his salary. In August 2005, defendant suffered injuries to his right foot and spine resulting in his inability to work.

In March 2006, defendant moved for a reduction in child support, which by prior order had been calculated pursuant to the guidelines to be $118 per week, plus $7 per week toward arrears. The hearing officer denied the request finding defendant had failed to show any permanent disability, suspended enforcement of the child support obligations and arrearages, and recommended that the matter be rescheduled in six months for a review. On October 18, 2006, the Family Part judge again denied defendant's motion for reduction in child support without prejudice, finding he "ha[d] not shown permanent disability." She suspended enforcement until December 31, 2006, and added "[d]efendant to re-apply with the proper proofs of disability."

On February 16, 2007, defendant again moved for relief seeking: suspension of all child support obligations from August 2005 based upon "long-term medical disabilities and involuntary unemployment"; enforcement of his rights to visitation and phone contact with his son; the revocation and suspension of any "enforcement or attachment" of his disability benefits by the Virginia Department of Social Services; sanctions against plaintiff for failing to obey prior orders; physical custody of his son; an accounting of his child support account by probation; and such other equitable relief as necessary. In support of his motion, defendant filed a detailed certification setting forth his physical and employment history since his injury.

Plaintiff opposed any reduction in child support and the other relief sought by defendant and cross-moved seeking permission "to relocate to Wyomissing, Pennsylvania with the parties' son," and modification of defendant's "parenting time to allow the parties to arrange for liberal and reasonable parenting time between them[]."

The parties appeared before the Family Part judge to argue the motion and cross-motion on April 18, 2007; defendant was represented by counsel and plaintiff appeared pro se. Defense counsel reviewed defendant's medical history, which included an operation on his foot shortly after the accident in August 2005 and spine surgery that occurred in December of 2006. Though Wackenhut had terminated defendant's employment in December 2005, he was still receiving long-term disability benefits from Prudential Insurance Company through a policy supplied by his former employer. Defendant had not applied for disability from the Social Security Administration because his private disability payments were continuing, and, with the exception of the $1475 per month he received from that plan, he had no other income. Defendant was scheduled to be seen by his back surgeon for further evaluation on the date of the hearing, and as a result of the schedule conflict and the doctor's vacation, defendant was unable to furnish any further updated medical reports to the court.

Defendant indicated that he was no longer seeking custody of his son, but rather was seeking "liberal visitation" so that he could have a "normal relationship [] with his son." Plaintiff indicated that she had relocated to Pennsylvania but was forced to move back to New Jersey and was currently residing with her son at her mother's home. After an acrimonious hearing on the issues, the judge reserved decision.

In her oral opinion of May 3, 2007, the judge reviewed the terms of the private disability plan under which defendant was receiving benefits. Noting that defendant was entitled to receive benefits for twenty-four months "when Prudential determine[d] that due to the same injury [he] [could not] perform the duties of any gainful occupation for which [he] [was] reasonably fitted," and further noting that twenty-four months had not passed since defendant's foot injury, the judge nonetheless reasoned that there was nothing "before [her] that says the prior injury to his foot and leg would prevent him from performing his previous occupation." The judge further observed that with respect to defendant's back surgery, she had only been supplied with a doctor's note, dated December 18, 2006, indicating that defendant's "status was post-lumbar surgery," and that he "can't work for approximately four to six months." She observed that the six months had nearly passed, and there was "no doctor's report," and "nothing . . . that says that the defendant . . . can still not work because of lumbar surgery he had five months ago."

The judge then observed "defendant [was] a young man," and it was her experience "that people return to work after having surgery . . . of this type." Noting that defendant was "the moving party and he ha[d] the burden to make a prima facie showing of changed circumstances that warrant relief," the judge determined "there's no showing . . . that this defendant even remains temporary (sic) disabled." She denied defendant's request for modification of child support obligations, reinstated enforcement, and placed the matter on "a two-week bench warrant status." The judge then granted defendant telephone contact with his son, and fashioned a summer visitation schedule leaving the parties to "make their own arrangements as to specific times" to effectuate the schedule.

On May 9, 2007, the judge entered an order incorporating the terms of her decision, and this appeal ensued.

Defendant only appeals from those portions of the order rejecting his efforts to modify his child support obligations from August 2005 to the present. He argues that the judge abused her discretion by permitting arrears to continue to accrue from August 21, 2005; abused her discretion by failing to find defendant permanently, or at least temporarily, disabled; and abused her discretion by not granting a downward modification based upon defendant's two dollar per hour reduction in pay as of July 2005. We have considered these arguments in light of the record and applicable legal standards. We affirm those portions of the order that denied defendant's motion to vacate the accrual of child support arrearages up to February 16, 2007, the date defendant filed his most recent motion for reduction; additionally, to the extent those portions of the order refused to modify defendant's support obligations based upon a reduction in his hourly pay while he was employed, we ...


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