On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-149-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011 -
Before Judges Carchman and Baxter.
Plaintiff Barbara Savini appeals from an April 23, 2009 Family Part order in which the judge declined to reverse a child support hearing officer's (hearing officer) ruling that the child support being paid by defendant Peter Triestman should not be adjusted to reflect the increase in the cost of living. We conclude the judge made insufficient findings of fact and incorrectly imposed the burden of proof on plaintiff rather than defendant. We reverse and remand for a rehearing.
On November 25, 2008, the Morris County Probation Department (Probation) notified defendant that in accordance with the provisions of Rule 5:6B, Probation had increased his monthly child support obligation to compensate for the increase in the cost of living in the preceding two years. In particular, Probation advised him that the 6.85 percent cost of living adjustment (COLA) it had imposed would modify his child support obligation by requiring him to pay child support of $3406 monthly, rather than $3188. Probation also notified defendant that if his income had not increased by at least 6.85 percent, he was entitled to request an administrative review of the COLA. Any such request for an administrative review would, however, need to be filed within thirty days.
Probation did not receive defendant's request for an administrative review until February 23, 2009, which was sixty days beyond the thirty-day deadline. Despite defendant's untimely request, Probation chose to entertain defendant's request for a redetermination because the probation officer to whom defendant claimed he had mailed his redetermination request on December 20, 2008 had subsequently become ill; and Probation concluded that any letter sent by defendant in December 2008 might have been mislaid.
On March 19, 2009, at the conclusion of its re-determination and administrative review, Probation notified the parties that the previously-imposed COLA "was not warranted," and consequently, defendant's child support obligation would be restored to the previous level of $3188 per month. At Probation's request, the judge issued an order on March 2, 2009, providing that defendant's child support obligation would "revert back" to the "correct obligation of $3188/month, effective 1/1/09." Plaintiff was advised that if she disagreed with Probation's decision, she was entitled to request a hearing before a hearing officer.
Plaintiff availed herself of that opportunity, but the hearing officer ruled in favor of defendant.*fn1 Plaintiff then filed an appeal to the Family Part from the adverse decision of the hearing officer. At the April 23, 2009 hearing in the Family Part, defendant did not appear. After being sworn, plaintiff attempted to persuade the judge that defendant's tax returns contained a "fraudulent entry" because, according to plaintiff, defendant claimed to have sold his building restoration business known as Triestman & Sons for $0, even though the business had been "valued at $70,000" shortly before. Plaintiff also maintained that, despite defendant's claim that he had sold the business, he still owned it and was deriving a significant income from it. Plaintiff urged the judge to disregard the "fraudulent [$70,000] paper write-off" reflected in defendant's 2007 federal income tax returns. As proof that Triestman & Sons was not defunct, plaintiff showed the judge a June 19, 2008 letter from the State of New Jersey, Department of Treasury, signed by the State Treasurer, showing that the business was still active and that defendant was its owner.
The judge denied plaintiff's motion to reinstate the COLA, stating:
[This] does not proof [sic] a fraud, Ma'am. There may be fraud, but there's not . . . proof of fraud. Certainly not enough that would establish for me to overturn the previous determination [sic].
You certainly raised issues that may be there, but you have no established proof.
After the judge ruled that plaintiff had failed to prove either that defendant's tax returns were fraudulent or that defendant was earning more income than he claimed, plaintiff reminded the judge that defendant's request for a re-determination by Probation was untimely. The judge rejected plaintiff's argument, finding that Probation was entitled to give ...