October 8, 2009
ROSEMARY THOMAS, PLAINTIFF-APPELLANT,
CRAIG RODGERS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-914-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Payne and Waugh.
Plaintiff Rosemary Thomas appeals from an order of the Chancery Division, Family Part, denying her application for payment of child support by defendant Craig Rodgers, the father of two children of Thomas's deceased daughter. We reverse.
Thomas's daughter died in an automobile accident in October 2007. Thomas sought and was granted temporary custody of the daughter's three children. Rodgers, the father of two of the children, and his parents subsequently filed a counterclaim seeking custody. The third child is not involved in this litigation because she has a different father.
On November 20, 2007, Thomas filed a complaint seeking child support from Rodgers. Because Rodgers had been paying child support to the children's deceased mother, Thomas also requested that the money in the daughter's child support account be released to her. For reasons not explained in the record, Thomas's application was not adjudicated at that time.
Thomas also applied to the Middlesex County Board of Social Services (Middlesex Board) for a grant under the temporary assistance to needy families program (TANF), which is part of the Work First New Jersey program. Thomas advised the Middlesex Board that she had requested child support for the two children fathered by Rodgers. She agreed that she would notify the Middlesex Board when she received any child support, so that the Board could be reimbursed for the amount of the grant.
Thomas began receiving the grant in January 2008, retroactive to November 27, 2007. Thomas understood that her TANF grant might be terminated once she started to received child support. She was receiving approximately $322 per month from TANF for the two children involved in this case, while Rodgers' child support obligation to their mother had been approximately $220 per week.
The custody trial began in March 2008. Thomas's attorney notified the trial judge that Thomas was not receiving any child support, despite her previous request. On April 1, 2008, a member of the judge's staff advised the attorney that the judge had contacted the Passaic County Probation Division (Probation) to request that the child support be released to Thomas.
On May, 1, 2008, Thomas's attorney again advised the trial judge that Thomas had not yet received any child support. The trial judge expressed concern about the fact that Thomas was receiving TANF and, at the same time, requesting child support. He directed Probation to continue to hold the child support pending a determination of the custody matter.
On June 25, 2008, the trial judge transferred custody of the two children to Rodgers and his parents. The actual transfer occurred on July 5, 2008.
Thomas then renewed her request for the child support for the period during which she had temporary custody. On August 22, 2008, the judge ordered Probation to conduct an audit of the account to determine if any repayment were due to the Middlesex, Essex or Passaic Boards of Social Services, the latter two having made similar grants to the deceased mother at different times prior to her death.
On October 24, 2008, the trial judge advised the parties that the audit was complete and that Probation was holding $6,233.80. In addition, there was apparently an overpayment of $6,941.00 to Passaic Social Services. The audit, however, was not provided to the parties by the judge.
Thomas subsequently contacted Probation and received a copy of the audit, which, according to her brief, reflected a total of $11,525.96 in child support arrears owed by the father and a balance due to Essex County in the amount of $10.00. The audit does not reflect that the Middlesex Board was owed anything, but it appears that the Middlesex Board was not aware of the name on the deceased daughter's Probation account.*fn1
On October 24, 2008, the trial judge denied Thomas's request for child support for the time during which she had custody of the two children. Instead, he ordered that the funds on hold in the Probation account be released to Rodgers. He explained that, because the child support was for the benefit of the children, it should be paid to their current custodian rather than Thomas, who no longer had custody. He also noted that Thomas had received a grant from Middlesex Social Services. Thomas's motion for reconsideration was denied on the papers on December 11, 2009. This appeal followed.
Although we normally defer to the Family Part's factual determinations, the order on appeal was not based upon factfinding at an evidentiary hearing. A judge's legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
Following the death of Thomas's daughter, Thomas served as the temporary custodian of her daughter and Rodgers' two children. She was, therefore, entitled to receive child support from Rodgers. Thomas did nothing wrong in seeking a temporary means of support from the Middlesex Board through the TANF program. She duly disclosed to the Middlesex Board that she was seeking child support and agreed to reimburse the Board. See N.J.S.A. 44:10-49; N.J.A.C. 10:110-16.1(a). An individual receiving such assistance is entitled to the first $50.00 per month in child support. N.J.A.C. 10:90-3.8(h). If there is any excess child support after the welfare agency is repaid for present or past assistance paid to the recipient, the excess is paid over to the child-support recipient. N.J.A.C. 10:110-16.1(b).
Having served as the custodian of the children and filed a timely application for support, Thomas was entitled to receive support for the applicable period. The trial judge's reliance on the adage that "the child support belongs to the child" was misplaced to the extent it was used to deprive Thomas of child support for the period during which she had actual custody of the two children. The adage is generally used to support the proposition that a custodial parent cannot waive the right to receive child support. See Pascale v. Pascale, 140 N.J. 583, 591 (1995); J.S. v. L.S., 389 N.J. Super. 200, 205-06 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007). Thomas incurred expenses in caring for the children. There is no question of her receiving some sort of windfall or unjust enrichment, especially given her acknowledged obligation to reimburse the Middlesex Board for the amount of the TANF grant related to Rodgers' two children.
Consequently, we vacate the order on appeal and remand to the Family Part. The trial judge must calculate Rodgers' support obligation to Thomas for the period from November 20, 2007, when she filed her application for child support, to July 5, 2008, when custody was transferred from her to Rodgers. The calculation must be made on Thomas's and Rodgers' respective income, actual or imputed, as required by the applicable child support guidelines. See Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002). Thomas is not necessarily entitled to receive the same amount of support as Rodgers paid to the children's mother.
The judge must make sure that all social service agencies with an interest in the funds held by Probation on behalf of the deceased daughter have notice of the proceedings. To the extent possible, funds that were mistakenly paid on the basis of the now vacated order on appeal should be recovered and redistributed in an appropriate manner. Once all interested parties are before the court, the judge should ensure that steps are taken to reimburse any social service agencies still due funds and determine Rodgers' obligations for any arrears.
Finally, in the event that Thomas or any social services agency has not been fully compensated, the judge should establish a payment schedule and weekly amount for the collection of arrears from Rodgers. In doing so, the judge may consider Rodgers' ability to pay in the context of his ongoing obligations to support the children now in his custody. He may not, however, simply write-off any arrears owed to Thomas or one of the agencies without their consent.
Vacated and remanded.