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In the Matter of Edward R. Van Sickle

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 30, 2012

IN THE MATTER OF EDWARD R. VAN SICKLE, JR.

On appeal from the New Jersey Department of Human Services, Division of Family Development, Office of Child Support Services.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2012

Before Judges Lihotz and St. John.

Appellant Edward R. Van Sickle, Jr. appeals from the denial of his request to vacate a bank account levy initiated by respondent the New Jersey Department of Human Services (DHS), Division of Family Development, Office of Child Support Services (OCSS), to satisfy appellant's unpaid child support. Appellant contends the levy upon his bank account caused extreme financial hardship and must be vacated. We disagree and affirm.

On June 23, 2010, a Family Part order required appellant to pay $65 per week for the support of his sixteen-year-old child and also to pay $10 per week toward the accumulated child support arrearages of $3445. Appellant made an ordered payment of $75 on October 25, 2010. At that time, appellant's employment was terminated, requiring him to apply for unemployment compensation benefits. Appellant qualified for an unemployment award of $344 per week.

OCSS effectuated an income tax refund intercept, collecting appellant's $1256 federal refund and $124 New Jersey income tax refund. The funds were offset against the child support arrearages.

On May 24, 2011, DHS issued a "Notice of Levy to Financial Institution," notifying Wells Fargo Bank, N.A., of its levy upon appellant's bank account to satisfy past due child support. DHS also notified appellant of the effectuated levy, informing him of his rights to contest the agency action. Appellant submitted a written objection contesting the bank account levy. He asserted the levy caused "extreme hardship" as a result of his unemployment and requested reconsideration. Acknowledging appellant's contest, DHS did not demand relinquishment of the funds until circumstances surrounding the levy were reviewed.

After reconsideration, DHS denied appellant's contest, stating, "[u]nemployment does not excuse [you] from court ordered child support payments." Another notice of delinquency of payment was issued to appellant and DHS instructed Wells Fargo to transmit the monies in appellant's account to the New Jersey Family Support Payment Center. The sum of $102.14 was released from the bank and applied to appellant's arrearages. One child support payment of $80 was made by appellant on September 26, 2011. As of September 27, 2011, accumulated arrearages totaled $5014.*fn1 This appeal ensued.

Our review of an appeal from an administrative agency's final determination is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Further, reversal is warranted when an agency's decision is "'arbitrary, capricious or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

Federal policy reflected in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C.A. § 666(a), is the impetus for New Jersey's enactment of the New Jersey Child Support Improvement Act (Support Improvement Act), N.J.S.A. 2A:17-56.53 and 56.57. Spuler v. Dep't of Human Servs., 340 N.J. Super. 549, 550 (App. Div. 2001). The Support Improvement Act authorizes DHS to take necessary action without a court order to recognize and enforce the authority of state agencies, including the authority to "secure assets to satisfy [child support] arrearages." See N.J.S.A. 2A:17-56.7a. "The [Support Improvement Act] authorizes DHS to conduct quarterly data matches with banks and other financial institutions based on the obligor's social security number in order to identify financial assets, and to freeze and seize the funds in order to satisfy child support arrears." Spuler, supra, 340 N.J. Super. at 550 (citing N.J.S.A. 2A:17-56.53g(2) and -56.57d).

The Financial Institution Data Match (FIDM) program, implemented by OCSS as an administrative enforcement mechanism for the collection of child support payable through probation, id. at 550-51, is triggered when "non-custodial parents . . . owe past due child support that equals or exceeds the amount of support payable for three months and . . . no regular payments are being made." N.J.S.A. 2A:17-56.57a. Once a bank levy freezing access to the funds is effectuated, the child support obligor is given notice and instructed on how to contest the agency's action. See N.J.S.A. 2A:17-56.57d ("In response to a notice of lien or levy, a financial institution shall encumber or surrender, as the case may be, assets held by the financial institution on behalf of any non-custodial parent who is subject to a child support lien pursuant to 42 U.S.C.[A.] § 666(a)(4)."). Included in the notice are reasons the action may be contested, such as mistaken identity, incorrect arrearage amount, pending bankruptcy, litigation that may affect the amount of support arrears, joint ownership of account, indigency, or extreme hardship. N.J.A.C. 10:110-15.2(a)4iii(1).

On appeal, appellant argues the agency's determination irresponsibly ignored his inability to pay child support caused by his unemployment, triggering the extreme hardship exception for obviating appropriation of his bank account. Characterizing the action as "a brushoff," appellant maintains DHS failed to perform a careful review of appellant's financial circumstances, making its determination arbitrary and unreasonable. We are not persuaded.

Except for informing DHS he was jobless and filing for energy bill payment assistance, appellant offered no support for his claim of extreme hardship. On appeal, he offers broad platitudes of his inability to "function financially" and asserts he was "already-destitute" when he fell behind in his child support obligation. However, he has yet to disclose his assets, income or expenses; offers no documentation to allow an analysis of his economic circumstances; and does not explain why he made virtually no child support payments despite the receipt of unemployment compensation. See N.J.A.C. 10:110-15.2a(2) (allowing attachment of unemployment compensation benefits to pay past-due support).

Our review of this matter determines appellant did not meet his burden to prove extreme hardship. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div), certif. denied, 188 N.J. 219 (2006) (holding the burden of proving an agency action is arbitrary or capricious rests on the challenging party). Accordingly, there is no basis presented to modify the agency's final determination.

Affirmed.


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