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Percival v. Braxton

January 8, 2009

CLAUDETTE PERCIVAL, PLAINTIFF-RESPONDENT,
v.
ROBERT BRAXTON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-792-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2008

Before Judges Reisner and Alvarez.

This appeal by defendant Robert Braxton is from an October 25, 2007 order modifying child support and a January 25, 2008 order awarding counsel fees. We remand the matter for recalculation of child support because certain benefits paid to the parties' children were not included in the child support guidelines worksheet, but we affirm as to attorney's fees.

The two children, ages thirteen and eleven, are both in the sole custody of plaintiff Claudette Percival. The prior order of support had not been modified for some time prior to the entry of this order. The hearing on the modification application was originally scheduled for August 2, 2007, but was adjourned for reasons not clear from the record. On August 23, 2007, plaintiff and her counsel appeared in court, but defendant did not. The certified mailing notifying him of that date was returned unclaimed, but the regular mail notification was not returned at all. The motion judge noted that defendant had "never changed his address with the system." The hearing was re-listed for September 27, and defendant was re-served by regular and certified mail.

On September 27, defendant again failed to appear. Court personnel contacted him by phone, at which time he requested a postponement so that he could retain counsel. The matter was carried to October 12 to allow him that opportunity. On October 12, defendant's newly retained attorney was unavoidably delayed. That fact was not explained to plaintiff's counsel, who had been waiting for her adversary, until late in the day.

The matter was not heard until October 25, 2007. The support order was then increased to $269 plus $10 per week toward arrears, based on the child support guidelines. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-C to R. 5:6A at 2280 (2007). The issue of counsel fees was held in abeyance to afford defendant's counsel the opportunity to review the detailed submission by plaintiff's attorney. Oral argument was conducted on January 25, 2008, and the court awarded plaintiff counsel fees of $1325. The motion judge broke the award down into two installments, a payment of $662.50 due on March 14, 2008, and the balance due on May 30, 2008. This appeal followed.

Defendant raises the following points:

POINT I THE COURT BELOW ERRED BY NOT INCLUDING THE SOCIAL SECURITY DISABILITY BENEFITS RECEIVED BY THE PARTIES['] TWO MINOR CHILDREN IN THE CALCULATION OF DEFENDANT'S CHILD SUPPORT OBLIGATION

POINT II COUNSEL FEES SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF COUNSEL WHEN DEFENDANT LACKS THE ABILITY TO PAY AND DID NOT ACT IN BAD FAITH

Plaintiff's benefits statement from the Social Security Administration indicates that she receives a monthly net of $1005. Plaintiff also provided the court with a statement of the children's portion of the social security benefits, which is $251 per child, for a total of $502 per month. This amount, however, did not appear on the child support guidelines worksheet used by the motion judge in calculating defendant's support obligation.

Certainly, findings of the Family Part are entitled to particular deference in view of the "special expertise in the field of domestic relations" of the matrimonial courts. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Where the findings are not based on adequate, competent evidence in the record, however, the conclusions must be rejected. Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005). Because the children's benefits were not included in the support calculations, the matter must be remanded to the Family Part so that child support can be computed anew.

The question of counsel fees is a different matter. Rule 5:3-5(c) authorizes payment of counsel fees to a party successful in an action for child support based ...


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