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Scott v. O'Neal

November 17, 2008

LOVELACE SCOTT III, PLAINTIFF-RESPONDENT,
v.
DALYA O'NEAL, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-769-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2008

Before Judges Lisa and Alvarez.

Defendant, Dalya O'Neal, appeals pro se from a July 26, 2007*fn1 order entered on the recommendation of a hearing officer, pursuant to Rule 5:25-3, requiring her to pay weekly child support of $123 plus $23 towards arrears. We vacate and remand.

We glean the following from a very scant record. Plaintiff, Lovelace Scott III, and defendant have two children, now ages fifteen and fourteen, who are in the custody of their father. It is their support that is in dispute. Plaintiff has a third child, from another relationship, in his custody. Defendant, who is separated from her husband, has custody of her five children from other relationships, ranging in ages from eleven to two.

On August 4, 2006, a support order was entered against defendant by default requiring her to pay $190 weekly in child support. The record does not reveal if this was the first child support order entered against her. At the time, defendant was unemployed, homeless, and pregnant with her youngest child. The August order was subsequently vacated on October 31, 2006, because defendant had not been "properly served."

The October 31 order directed the parties to appear before a hearing officer for "a recalculation of the [defendant's] support obligation." This appeal is taken from the child support order entered on July 26, 2007, after such a hearing. We cannot determine from this record if the July 26, 2007 proceeding was the first after the October 31, 2006 order.

At the July 26, 2007 hearing, plaintiff testified that he earned a weekly gross income of $892 from his state employment. Defendant stated that she earned $14 per hour for a forty-hour week at her last job, which lasted for one year. Defendant did not say, and she was not asked, when her employment terminated. Although defendant disclosed that she received "help" from the fathers of her other five children, she was not asked, nor did she volunteer, the actual amount that they contribute. There are no child support orders in effect against them.

The hearing then continued:

Hearing Officer: Based on a gross weekly income of $892 per week for [plaintiff], which is your year-to-date average, based upon $560 per week for [defendant], which is what you had made as your hourly rate at your job.

Hearing Officer: Do you have any day care expenses connected to these two children, sir? [Plaintiff]: Currently no, ma'am.

Hearing Officer: I'm going to reduce [the child support obligation] to $123 per week effective the date this motion was filed, June 18[]. There is currently a $23 pay back toward arrears and I'm going to continue that. That's a total of $146 per week by income withholding.

[T]he plaintiff/obligee[] will provide the medical insurance, as he is currently doing. And, [defendant] is responsible for 31 percent of any unreimbursed medical expenses in excess of $250 in a ...


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