August 20, 2010
SANDE M. HOFFMAN, PLAINTIFF-APPELLANT,
CINDY L. GRIFFIN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-142-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2010
Before Judges Payne and Waugh.
Plaintiff Sande Hoffman is the divorced husband of Cindy Griffin. He appeals from an order of a judge of the Family Part dated July 21, 2009. The order denied the following relief requested by plaintiff and set forth in his proposed form of order as follows:
a. Credit my Probation Account for $17,729.21 that Ms. Griffin received.
b. Restore my good Name with DMV and Credit Bureaus and have all suspensions reversed.
c. Retroactively decrease child support for [younger daughter] as of April 16, 2008.
d. Retroactively eliminate child support for [older daughter] as of April 16, 2008.
e. To have all my records reflect that at no time was I ever in arrears in child support.
f. Order [wife's attorney] to stop harassing me via E-Mail.*fn1
g. Have the Probation Department return all overpayments they received directly from me.
h. All judgments against me lifted, just until I am able to refinance my home to a fixed lower rate.
i. Order Ms Griffin to pay $9,250.00 in storage fees and removes her property.*fn2
j. I want to be informed of all medicines and advance notification of all doctor visits and be consulted before any decisions are made for [younger daughter].
k. Cancel order of Curb Side Pickup because of Oakland Borough Ordinance 7-11 "No parking, Stopping, and No standing."
In denying relief, the judge stated on the order:
Mr. Hoffman fails to support his allegations with any proofs and only makes rambling statements about Ms. Griffin that have nothing to do with the requested relief.
Additionally, the judge noted
- no copy of current support order attached - no copy of child support guidelines is used to establish current support - no current or past CIS Many of the points of relief requested (1b, 1e, 1f, 1g, 1h, & 1k) are not judiciable and/or no proof whatsoever for them.
The motion generating this order was heard on the papers, and therefore no transcript has been provided. Additionally, any opposition to the motion filed by defendant has not been supplied, and defendant has not filed a brief on appeal. As a consequence of the state of the record, it is difficult for us to dispose of this appeal in any meaningful fashion.
Plaintiff also appeals from an order of July 21, 2009 denying reconsideration of the order that we have just set forth. Additionally he has appealed from an order of September 2, 2009 determining plaintiff's child support arrears as of September 2, 2009 to be $10,904 and ordering that, as of November 1, 2009, if plaintiff misses two child support payments, a warrant will issue.
The record reflects that the parties were divorced on June 7, 2006. In a property settlement agreement (PSA) dated May 24, 2006, plaintiff and defendant agreed that defendant would receive $120,000, minus a $7,000 advance,*fn3 for her equity in the house, which would be transferred to plaintiff. Plaintiff agreed to provide health benefits for the two girls if other sources of such insurance were not available. Plaintiff also agreed to provide $400 per month in child support for the younger daughter, born in 1995, and two years of college tuition at Bergen Community College, books and car expenses for the older daughter, born in 1987. Thereafter, the parties would split tuition and/or obtain student loans. There were also provisions for disposition of life insurance, and it was agreed that defendant would transfer ownership of the children's annuity funds to plaintiff. Lump sum alimony of $6,000 would be paid, and the couple would split on a yearly basis the use of and fees for a time share.
On December 4, 2007, allegedly without notice to plaintiff defendant obtained a loan on the older daughter's annuity for $8,000 plus $448.81 in fees, and a loan on the younger daughter's annuity of $5,000 plus $213.43 in fees. Minimum balances remained in the accounts. Defendant did not transfer ownership of the annuities to plaintiff as specified in the PSA, but Penn Mutual did so upon receipt of judgment of divorce and PSA. Plaintiff appears to have been informed about the loans through a letter to him from Penn Mutual dated May 1, 2008. Plaintiff seeks to credit the amount of the loans against his support obligation.
On April 16, 2008, defendant moved for an order requiring plaintiff to pay child support through probation, increasing child support, and requiring that a warrant for plaintiff's arrest be issued if he were two weeks late in payment of his child support obligation. According to plaintiff, he was ordered by the judge to appear on June 25, 2008 with a copy of his 2007 tax return. However, plaintiff states that he was unable to comply, since he did not receive taxable income that year, and he had not filed a return. Plaintiff's deposition was taken on July 9, 2008. However, we do not have a copy of that deposition and plaintiff has disavowed its contents.
On November 3, 2008, the judge entered an order allegedly granting an increase in child support from $400 per month to $338 per week, for a yearly increase from $4,800 to $17,576. It appears that arrearages in child support in the approximate amount of $11,000 were reduced to judgment and placed as a lien on plaintiff's house.
Plaintiff states that on February 21, 2009 his bank accounts were seized, and that on February 25, 2009, his house was searched by officers of the Passaic County Sheriff's Department and that he was arrested and jailed for non-payment of child support.
Plaintiff claims that on April 19, 2009, he moved for unspecified relief, and that his motion was denied. Plaintiff filed a further motion, returnable on July 17, 2009, that resulted in the July 21, 2009 order that is a subject of this appeal. A motion for reconsideration was denied on the same day, apparently because plaintiff did not indicate that he had served the motion on defendant.
As previously stated, a further order was entered on September 2, 2009 fixing child support arrears as of that date at $10,904 and providing that a warrant would issue for plaintiff's arrest upon his failure to pay child support for two weeks. This appeal was filed on September 4, 2009.
Plaintiff claims, and the record reflects, that on June 25, 2007, after the divorce had taken place, plaintiff was found to be 100% permanently and totally disabled by the Department of Veterans Affairs, as of May 31, 2006, as the result of post-traumatic stress disorder arising out plaintiff's service in Viet Nam.*fn4 He receives monthly benefits in the amount of $2,432, which plaintiff states are nontaxable. Social Security records indicate that plaintiff had no reported income in 1994 to 1999, $1,873 in income in 1999, no reported income in 2000 to 2003, $2,934 in income in 2003 and $5,172 in income in 1994, and none thereafter. Plaintiff states that now he is also entitled to Social Security benefits, having attained the age of sixty-two, although he offers no proof of receipt of those benefits or their amount. He has not paid taxes since 2004 and says that he does not pay real estate taxes, although he owns a home. That home, worth an estimated $450,000, is mortgaged. The principal balance of the loan as of February 17, 2009, was $443,500. Plaintiff also owns two cars, a 2005 Hyundai and a 2005 Pontiac. Plaintiff acknowledges that he received an inheritance of $250,000 in 2005. However, he alleges that it has been spent.
The record reflects additionally that dependent's educational assistance has been provided by the Veterans Administration to the older daughter, who received $6,610.06 in 2008 and $4,528 in 2009. Plaintiff attaches a page that appears to be from a Department of Veteran's Affairs publication that states that:
if non-means tested benefits are paid to or for a dependent child for whom support is being determined, the benefits must be deducted from the basic support obligation (see Potter v. Potter, 169 N.J. Super. 140 (App. Div. 1979), De La Ossa v. De La Ossa, 291 N.J. Super. 557 (App. Div. 1996), Pasternak v. Pasternak, 310 N.J. Super. 483 (1997), Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998). . . . If the benefits received by the child are greater than the total support obligation (i.e., the amount of the obligation after deducting the benefits is zero), no support award should be ordered while the child is receiving the benefits.
Plaintiff also provides evidence of his payment of certain of the older daughter's expenses, other than those required by the PSA, and of earnings by that daughter as a waitress.
Because the record is incomplete, we are unable to resolve the issues raised by plaintiff on appeal. However, although we make no factual findings in this matter,*fn5 it does appear to us that plaintiff has set forth an evidentiary basis for a reduction in child support based on changed circumstances, that, if accompanied by a properly completed case information statement and such other documents as the judge may require, should be further considered. Lepis v. Lepis, 83 N.J. 139, 157-58 (1980). The matter of the loans taken by defendant from the daughters' annuities and the disposition of the loaned funds also requires exploration, a determination whether the loans were utilized to benefit the children or were otherwise properly utilized, and a determination as to who is responsible for repayment. We therefore remand this matter for the judge's further disposition after argument on the record and for a hearing, should contested facts require one.