On appeal from the New Jersey Department of Human Services, Division of Family Development.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012
Before Judges Fasciale and Maven.
Plaintiff appeals from an October 27, 2011 final decision by the New Jersey Department of Human Services (DHS), Division of Family Development (DFD), Office of Child Support Services (OCSS), notifying him that he owes $45,820.85 in child support and levying on his bank account. Plaintiff argues primarily that the DHS failed to recognize that levying on his bank account may cause him extreme hardship when he is released from prison. We affirm.
Since 1995, the court entered approximately fifteen child support orders against plaintiff. On June 16, 2011, the DHS levied on plaintiff's bank account to satisfy his arrears. On June 24, 2011, the court suspended future child support payments pending plaintiff's incarceration.*fn1 On July 10, 2011, plaintiff contested the levy contending that he earmarked the money in his bank account to "provide [himself] with [his life's] basic needs" on release from prison.*fn2 As a result, the DHS canceled the levy.
The DHS then determined that although the June 24, 2011 order suspended additional child support payments pending incarceration, it did not suspend enforcement of plaintiff's past child support arrears. On September 15, 2011, the DHS re-issued a levy on plaintiff's bank account and on September 26, 2011, provided him with notice of the levy. In October 2011, plaintiff contested the re-issued levy arguing that it would create an extreme hardship when he is released from prison. On October 27, 2011, the DHS rejected plaintiff's argument, determined that plaintiff maintained child support arrears in the amount of $45,820.85, and declined to cancel the levy.*fn3 This appeal followed.
On appeal, plaintiff argues in his pro se brief that the DHS's refusal to cancel the re-issued levy would create an extreme hardship in the future. He contends that "with the exception of [earning] $30 per month . . . from his prison job," he has no other income. Plaintiff maintains that if the DHS is permitted to levy on his bank account to satisfy his child support arrears, then he would not be financially prepared for his eventual release from prison.
Our review of an appeal from an administrative agency's final determination is limited. Burlington Cnty. Bd. of Soc. Servs. v. G.W., 425 N.J. Super. 42, 45 (App. Div. 2012) (applying limited review to a DHS final decision). We will intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (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) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Based on the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C.A. § 666(a), New Jersey enacted the New Jersey Child Support Improvement Act (the 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 Act authorizes the DHS to take necessary action to "secure assets to satisfy [child support] arrearages." Assembly Judiciary Committee, Statement to A.1645 (Jan. 29, 1998). "The [Act] authorizes DHS 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:17-56.53(g)(2) and -56.57(d)).
The Financial Institution Data Match (FIDM) program that OCSS implemented as an administrative enforcement mechanism to collect 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:17-56.57(a). 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:17-56.57(d) ("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)."). Here, the DHS acted pursuant to the Act and provided plaintiff with all the process that was due.
Pursuant to N.J.A.C. 10:110-15.2(a)4iii(1)(F), plaintiff contested the re-issued bank levy on grounds of extreme hardship. Plaintiff speculates that he will be unable to support himself when he is released from prison if the levy is not canceled. It is unknown when he will be released from prison,*fn4 whether his income level will change while he remains incarcerated, and what his financial circumstances will be upon release. As such, we conclude that plaintiff 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 that an agency action is arbitrary, capricious, or unreasonable rests on the challenging party).
Based on our review of the record and the controlling legal principles, we conclude that plaintiff's remaining arguments raised on appeal are without sufficient merit to warrant ...