July 10, 2013
NICOLE BELL, n/k/a NICOLE PIRES, Plaintiff-Appellant,
DARREN BELL, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1526-09.
Jacobowitz & Defino, P.C., attorneys (Benjamin M. Hoffman, on the brief).
Respondent has not filed a brief.
Before Judges Parrillo, Sabatino and Fasciale.
In this one-sided appeal, plaintiff Nicole Pires, the mother of the parties' minor child, K.B., appeals various aspects of post-judgment orders entered by the Family Part on February 27, 2012 and April 23, 2012. For the reasons stated in this opinion, we remand the issues for further proceedings in the Family Part.
Plaintiff and defendant Darren Bell were married in May 2003. They have one child together, K.B., who was born in June 2007. Plaintiff is a government clerical employee. Defendant had been employed as a home health aide, although he was unemployed at the time of the post-judgment motions at issue.
A final judgment of divorce, with an attached matrimonial settlement agreement ("MSA"), was entered in August 2010. The MSA incorporated aspects of a consent order that had been previously entered in 2010 concerning custody and parenting time. Those provisions included certain restrictions on the child's interactions with the woman who was then defendant's girlfriend, whom he eventually married.
The MSA designated plaintiff as the primary residential parent of K.B., with defendant having substantial parenting time. Applying the state child support guidelines, the MSA required defendant to pay plaintiff $147 weekly in child support, based upon his imputed annual income of $38, 000.
At some point after the divorce judgment was entered, defendant married his girlfriend, who is now K.B.'s stepmother. She gave birth to a child and then became pregnant with twins, increasing the number of defendant's dependents. Plaintiff likewise has remarried and had twins.
After disputes arose between the divorced parties, mainly concerning their daughter, plaintiff moved for post-judgment relief in the latter part of 2011. Defendant similarly cross-moved on various issues. All told, plaintiff and defendant each sought over twenty items of relief. Defendant, who was unemployed and receiving Temporary Assistance to Needy Families ("TANF") benefits, moved to reduce his child support payments. Upon examining the parties' copious submissions, the motion judge issued a sixteen-page order, containing forty-two detailed paragraphs, on February 27, 2012. The order granted each party's requests in part and denied them in part. Within the body of the order, the motion judge detailed reasons explaining the bulk of her discrete rulings. With respect to defendant's request to reduce his child support obligations, the court denied the request without prejudice, ordering both parties to submit additional financial documents.
After defendant submitted additional financial documents, and over plaintiff's opposition, the court entered an order on April 23, 2012, suspending defendant's child support obligations as of March 26, 2012. The suspension was to be in effect until defendant stopped receiving TANF benefits or until October 1, 2012. The court denied all other requests for relief.
On appeal, plaintiff argues that the trial court: (1) should have compelled her ex-husband to prohibit the stepmother from bathing the child; (2) should have compelled defendant to prevent the child from calling the stepmother "mommy"; (3) should not have extended defendant's weekend parenting time by an extra day; (4) should not have suspended defendant's child support obligation while he was receiving TANF benefits; (5) should have granted her request to compel defendant to refrain from having inappropriate litigation-related conversations with the child; (6) should not have granted defendant's request to be the first alternative caretaker if she were unavailable; (7) should have granted her request to compel defendant to preclude the stepmother from being present during the child's pickups and drop-offs; and (8) should not have denied her request that all pickups and dropoffs be completed at curbside.
We first consider the child support issue. In doing so, we take judicial notice that, while this appeal was pending, the Family Part restored child support, effective October 9, 2012, at a reduced sum of $68 weekly. Even so, the appeal of the April 2012 suspension order is not moot because it bears upon defendant's arrears.
We conclude that the trial court correctly excluded defendant's TANF benefits from his gross income under the child support guidelines See Pressler & Verniero Current N.J. Court Rules Appendix IX-B (2013) However in suspending defendant's payment obligation completely because of his TANF eligibility the court overlooked the possibility that as the law recognizes in certain instances the ability to earn additional income may be imputed to a parent who is the recipient of TANF or other means-tested government benefits
For example in Burns v Edwards 367
N.J.Super. 29 33 (App Div 2004) the defendant was a disabled parent diagnosed with schizophrenia and a recipient of federal Supplemental Security Income (SSI) — a means-tested federal disability program administered by the Social Security Administration The defendant's treating psychiatrist informed the court that the defendant was "unable to be employed" Id at 34 The Community Health Law Project on behalf of the defendant moved to terminate his child support obligation Ibid
After a hearing in Burns the trial court rejected the defendant's argument that SSI benefits could not be considered in determining child support obligations Id at 35 Although we reversed that particular determination we did hold that "a child support order may be entered against a parent who is an SSI recipient where the court concludes that the parent is earning or has the ability to earn additional income." Id. at 36-37 (emphasis added).
In Burns, we distinguished between SSI and Social Security Disability ("SSD") benefits, the former being means-tested, which signifies "eligibility for the benefit, or its amount, is determined on the basis of the income or resources of the recipient." Id. at 36. We noted that TANF benefits are also means-tested benefits. Id. at 33 n.1. Unlike SSD benefits, "SSI benefits are not a substitute for lost income due to disability"; instead, "they are a supplement to the recipient's income." Id. at 37. SSI benefits are exempt from attachment, garnishment, levy, execution, or any other legal process, and "cannot be garnished or attached for child support[.]" Id. at 39.
After reviewing these governmental benefits programs, we pointed out in Burns that "[t]he intent of the child-support framework to ensure that parents support their children has no application to those parents whose sole source of income is SSI, and where such parents have no ability to generate any additional income." Id. at 41 (emphasis added). On the other hand, we recognized that income may sometimes be imputed to parents, and that "a child support order may be entered against a parent who is an SSI recipient where the court concludes that the parent is earning or has the ability to earn additional income." Id. at 50 (emphasis added); see also Crespo v. Crespo, 395 N.J.Super. 190, 194-95 (App. Div. 2007) (noting that "SSI benefits should not be included in the calculation of child support when the disabled parent receives no other income, and no other income can be imputed to him" (emphasis added)).
Here, first the MSA imputed income to defendant, and then subsequently, the judge found that defendant voluntarily removed himself from the workforce, thereby denying a June 2011 motion to reduce his child support obligations. Thereafter, upon request from defendant in his January 2012 cross-motion to reduce his obligation in light of his reliance on TANF benefits, the judge eventually ordered, without having conducted a plenary hearing, suspension of defendant's obligation.
Notably, the suspension here was not accompanied with any finding of defendant's inability to earn additional income. As made clear in Burns, supra, and as reiterated in Crespo, supra, a parent's receipt of means-tested benefits does not in and of itself require suspension or reduction of a child support obligation. The court must find that the parent receives means-tested benefits and is unable to earn additional income, such that additional income cannot be imputed to the parent. See Crespo, supra, 395 N.J.Super. at 194-95; Burns, supra, 367 N.J.Super. at 50. A total suspension of defendant's obligations without an ability-to-earn analysis is inappropriate.
Because the judge did not make these additional necessary findings, we must remand the matter for a retrospective assessment of whether any income should have been imputed to defendant during the period when he was receiving TANF benefits. Given the litigious history of this matter and the potential need for a full record, we recommend, although do not require, that this reexamination be conducted directly by a Family Part judge rather than by a child support hearing officer. In remanding the issue, we by no means are requiring that some level of imputation be made. That assessment of defendant's prior ability to earn additional income must turn upon what is revealed at the hearing by competent evidence and the credibility of the witnesses. The assessment might also be affected by any employment skills training mandated under the TANF program and the amount of time defendant devoted to such training. See N.J.A.C. 10:90-4.1. Pending the hearing, the reinstated $68 weekly support amount shall remain in place, unless another change in circumstances is shown.
The remaining issues fundamentally pertain to custody and visitation matters relating to the parties' daughter. Among other things, plaintiff seeks enforcement of provisions in the MSA that had reflected certain recommendations made by a court-appointed psychologist in 2009 and 2010, when K.B. was no more than three years old.
K.B. is now the age of six and presumably attending school. Both of her parents have remarried. She now has two stepparents. Her relationships with her parents and their respective new spouses have undoubtedly evolved. In the meantime, the record has become stale, as well as the psychologist's expert recommendations.
Given this significant passage of time, we remand the other issues raised on appeal for reconsideration by the Family Part, in anticipation that the court arrange, if it is financially feasible, for an updated expert evaluation of the child by either the original psychologist or some alternative professional. Presumably, the expert would interview and evaluate the child and provide neutral insight to a trial court faced with the parties' competing opinions about what is ultimately in the child's best interests. As a general observation, we also note that the substantial restrictions that were placed upon the then-girlfriend's interactions with K.B. during her early childhood may warrant reconsideration, now that the child has doubled in age and that the girlfriend has become her stepmother.
Whether adjustments to the parenting time arrangements are warranted at this time are likely to depend upon the potential updated input of an expert and the thoughtful exercise of the Family Part judge's discretion. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (noting the considerable discretion accorded to Family Part judges); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). We do not insist, here in the abstract without an expert's current advice, that a plenary hearing be conducted. Instead, we conclude that the need for, and scope of, any future plenary hearing in this dynamic case be deferred to the Family Part judge's sound discretion.
Remanded. We do not retain jurisdiction.