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Gillies v. Pittman

Superior Court of New Jersey, Appellate Division

August 29, 2013

KELVETON A. GILLIES, Plaintiff-Appellant,
v.
NICOLE M. PITTMAN, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 14, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-1275-07.

Kelvelton A. Gillies, appellant pro se.

Nicole M. Pittman, respondent pro se.

Before Judges Koblitz and Accurso.

PER CURIAM

Plaintiff father Kelveton A. Gillies appeals from a March 12, 2012 Child Support Hearing Officer (CSHO) order[1] directing the Probation Division to again collect child support upon application of defendant mother Nicole M. Pittman.[2] We affirm.

On January 12, 2012, the parties appeared before the CSHO. They had agreed that plaintiff's parental rights would be terminated and defendant would no longer seek child support. The hearing officer explained that such an arrangement was not permitted, but that he could convert the case to direct-pay status pending adoption of the children. See R.H. v. M.K., 254 N.J.Super. 480, 484 (Ch. Div. 1991) (holding that a parent may not voluntarily surrender his or her parental rights in a context other than the adoption of a child). Both parties agreed to this resolution. At that time plaintiff had been ordered to pay "$268 [PER] WEEK [IN CHILD SUPPORT] WITH $10 ARREARS PAYBACK AMOUNT[;]" and he had accumulated arrears of $46, 917.

Two months later the parties appeared before the same CSHO[3]on the mother's application to reinstate payment through Probation. In opposition, plaintiff explained that he was unable to complete job applications due to his lack of writing ability and was surviving on welfare payments. The CSHO ordered collection through Probation.

On appeal, plaintiff asserts that the twin girls were conceived in 2007 through artificial insemination and therefore he should not be obligated to provide child support, citing N.J.S.A. 9:17-44(a) and (b), which deal with artificial insemination in the context of anonymous sperm donors. Defendant responds with considerable evidence of an on-going relationship between the parties and acceptance by plaintiff of his role as the children's father, including plaintiff's prior applications for custody, visitation and to take the children as dependents on his tax returns.

We do not consider this issue as it was not raised at the hearing. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We also do not consider plaintiff's arguments regarding his inability to pay support because the order from which he appeals did not determine his application to reduce support, but rather defendant's request that support be collected once again through the Probation Division. Such collection is mandated by law absent good cause to the contrary. R. 5:7-4(b).

We are concerned that the transcripts of the two CSHO hearings do not reflect that the parties were told of their right to an immediate appeal to a trial judge. R. 5:25-3(d)(2); CSHO Program Operations Manual, supra, §1538. The right to an immediate appeal should be communicated to litigants at every CSHO hearing in the CSHO's opening statement to the litigants.[4]CSHO Program Operations Manual, supra, §1205.3. Plaintiff did not immediately appeal to a Superior Court Judge. Nor did either party sign the form order after the pre-printed language stating, "I hereby declare that I understand all provisions of this ORDER recommended by a Hearing Officer and I waive my right to an immediate appeal to a Superior Court Judge." Rule 5:25-3(d)(3), however, allows a litigant to appeal directly to us from an order recommended by the CSHO, stating:

Orders of the Family Part entered as a result of a [CSHO]'s recommendation shall be recognized as a final order of the Superior Court. Copies of the orders shall be provided to the parties or their attorneys. Orders may be appealed to the Appellate Division of the Superior Court within the time and according to the procedures prescribed by the Rules for appeals to the Appellate Division. The time for appeal shall run from the date of the signing of the order by a Judge of the Superior Court.

Moreover, the CSHO Program Operations Manual, prepared to guide the New Jersey Judiciary staff, indicates:

1214 Appeal to the Appellate Division The record of some CSHO determinations, once ratified, may be the only proceeding subject to review, if a party files a direct appeal with the Appellate Division from the Family Part order. R. 2:2-3(a)(1). The party must file a Notice of Appeal within 45 days from the date the judge signs the Uniform Summary Support Order. R. 2:4-1(a). Therefore, it is the responsibility of the CSHO to ensure the integrity of that record.

Thus, we do not dismiss this appeal as improperly filed, although ultimately the issues raised by plaintiff are not reviewable as they were not raised by plaintiff nor decided by the CSHO. Plaintiff is not precluded from filing a motion to reduce child support based on his current financial circumstances.

Affirmed.


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