April 30, 2008
CHRISTINE HULSE, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 affirm. However, we reverse the order with respect to the denial of defendant's motion for modification of his child support obligations prospectively from February 16, 2007, and we remand the matter for further proceedings on that limited issue.
We first note that defendant's initial application for modification in March 2006, and the review that took place in October 2006, resulted in denials of his request because he failed to demonstrate any permanent disability. We have not been supplied with any of the motion papers filed in support of those requests, though the judge noted in her opinion and during oral argument that defendant had, at that time, supplied only minimal medical information regarding his foot surgery, an MRI of his spine, and little else. In any event, defendant never appealed from those orders, choosing instead to continue his pursuit nearly one year later by filing another motion. Although defendant argues that since the March and October 2006 orders suspended enforcement efforts the issues are properly before us, the fact remains that those orders denied his request for modification and were never appealed. We will not now review the propriety of those orders, thus, defendant's efforts to vacate accrued child support and to seek modification based upon a minor reduction in his hour salary are unavailing. Retroactive modification of child support orders is prohibited by N.J.S.A. 2A:17-56.23(a). Winterberg v. Lupo, 300 N.J. Super. 125, 135 (App. Div. 1997). Therefore, we consider only whether defendant's February 2007 motion demonstrated a sufficient prima facie case of changed circumstances warranting modification of the prior support order, or, alternatively, a plenary hearing on the issue.
"Upon a motion to modify child support, the moving party has the burden to make a prima facie showing of changed circumstances warranting relief. Only if such a showing is made does the court have the right to order full discovery regarding the financial circumstances of the other [party]." Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). Although the judge focused on the lack of medical proof demonstrating defendant's permanent disability, defendant asserted other facts that demonstrated a significant decrease in his earning capacity, whether permanent or temporary, since he was injured in August 2005. For example, in his certification and supporting documents, defendant contended that his only sources of income since October 2005 was the $1475 per month he was receiving from his private disability plan along with food stamps for his family. See Pressler, Current N.J. Court Rules, Appendix IX-B, "Use of the Child Support Guidelines" (2008)(excluding food stamps from gross income for purposes of child support calculations). Although the judge never took formal testimony from the parties at the hearing, at one point defense counsel noted this amount was "half" of defendant's prior monthly income. This financial information was contained in defendant's case information statement filed with the motion and it was essentially undisputed.
Although defendant's submissions failed to include an updated medical report regarding his spine surgery, it was clear that the unfortuitous scheduling of his examination on the same date as the hearing thwarted any bona fide efforts he intended in that regard. In any event, the doctor's note he did furnish indicated that defendant was unable to work for four to six months from December through May. The hearing before the judge took place in April and her decision was rendered in May. Thus, it was essentially undisputed that defendant had not worked in nearly two years, had injuries requiring two surgeries, and was receiving significantly less income as a result. Defendant's certification fully supported these conclusions.
We have previously recognized that a reduction in the obligor's income may be a changed circumstance justifying relief from prior child support obligations. Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). Absent a specific finding that the obligor has become voluntarily underemployed without just cause, the imputation of additional income to that party is unwarranted. Ibid.
The judge found that defendant failed to demonstrate that he was totally and permanently disabled, clearly a changed circumstance. See Golian v. Golian, 344 N.J. Super. 337, 342-43 (App. Div. 2001) (reversing and remanding to consider the effect of plaintiff's Social Security disability determination). Yet, defendant had demonstrated that he had a significant reduction in his income for a substantial period of time, contending that it was based solely upon his inability to work because of his physical ailments and was not the result of any voluntary decision not to work. He argued further that he was unable to apply for Social Security disability payments precisely because his private disability plan was continuing to make payments to him. The judge never concluded that defendant's reduction in income was due to his voluntary decision, thus, she did not impute income to defendant, nor did she find defendant's assertions unworthy of belief.
We therefore must reverse those portions of the order under review that denied defendant's motion to reduce his child support obligations because of a change in his financial circumstances. We remand the matter to the motion judge for determination of what, if any, modification should be entered based upon all the evidence produced, including any evidence the parties may wish to submit that may detail events since the April 2007 hearing occurred, including their present financial situations. In particular, defendant should be accorded the opportunity to update any medical reports. We leave it to the judge's sound discretion whether a full plenary hearing is required. In the event the judge concludes defendant is entitled to a reduction, it shall be applied only prospectively from February 2007 as a modification of the existing support orders.
Reversed and remanded. We do not retain jurisdiction.
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