September 13, 2013
DEBORAH HOWARD, f/k/a KOPKO, Plaintiff-Respondent,
CHRISTOPHER KOPKO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 13, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-436-07.
Russell Gale argued the cause for appellant (Central Jersey Legal Services, Inc., attorneys; Mr. Gale, on the brief).
Respondent has not filed a brief.
Before Judges Simonelli,  Koblitz and Accurso.
Defendant Christopher Kopko appeals from a January 27, 2012 post-judgment order requiring him to pay $20 per week in child support and a March 30, 2012 order requiring him to supply the medical reports he relied on in securing Supplemental Security Income (SSI) benefits, but limiting his responsibility for any costs thereof to $100. Defendant contends that the judge failed to accord him the benefit of the presumption of unemployability that arises from an administrative determination of disability and erred in requiring him to produce and pay for his medical records. We disagree and affirm.
There are few facts in the record. Plaintiff Deborah Howard and defendant were divorced in May 2007 via a default judgment. They have joint legal custody of their four children, all of whom were under ten years old at the time of defendant's application to be relieved of his child support obligation. Plaintiff is the primary residential parent. She certified that she had been unemployed for over a year and was not entitled to unemployment benefits as the job she had been laid-off from had only been part-time.
The judgment of divorce required defendant to pay child support of $174 per week, plus $35 weekly on arrears of $4210. Burlington County Probation claimed in an enforcement motion filed in April 2011, that defendant's obligation had been increased to $182 per week, plus $50 weekly on arrears then totaling $40, 449. Defendant appeared at the motion hearing and "presented documentation  that he has been receiving SSI benefits since 2007." The hearing officer suspended enforcement for ninety days to allow defendant "to file a formal motion based on his SSI status."
Defendant filed his motion to be relieved of his child support obligation and suspend enforcement of all arrears through counsel in October 2011. He attached a short certification stating only that he was awarded SSI benefits on November 27, 2008 and was unable to work. He did not disclose the nature of his disability or provide any explanation as to why he could not work. The notice of award he attached did not provide that information. Defendant certified that "I represent that I have no other income, am not employed and reside with my mother." He did not attach a case information statement (CIS) or income tax returns.
Plaintiff cross-moved to compel defendant to disclose his disability, provide his CIS, tax returns and paystubs, and requested that the court impute income to him of $20, 000 and require him to pay her counsel fees. She certified that she sought to compel defendant to disclose his disability because she did not know the basis for it. She also claimed that she was not receiving State assistance for their children. Her CIS revealed no income other than food stamps.
In a responsive certification, defendant certified that the Social Security Administration (SSA) had declared him "neurologically impaired." He claimed to have been "in Princeton House for 40 days in 2007 for emotional[, ] mental and neurological deficiencies, which caused me to become disabled." He provided no medical records or other documents to support those assertions. Defendant further certified that he received disability payments of $728 per month and had not filed tax returns since 2007. He averred that his rent was $1100 "but I pay $200.00 with the government paying the balance for Section VIII housing. I receive $90.00 per month food stamps and receive Medicare and Medicaid health care benefits." Defendant attached a CIS reflecting those facts.
On January 27, 2012, the court entered an order granting in part defendant's request, specifically without prejudice to an application for further relief, and preserved his filing date. The court found that defendant's receipt of SSI benefits demonstrated substantial changed circumstances warranting modification of his child support obligation. Lepis v. Lepis, 83 N.J. 139 (1980). In light of his failure to provide any proof of the nature of his disability or its extent, however, the court declined to relieve defendant entirely of his obligation to support his four minor children. Instead, the court entered a nominal award of $20 per week, and ordered defendant to "disclose the exact reasons for his SSI benefits to plaintiff" and provide the medical reports he used to secure those benefits to her counsel no later than March 30, 2012. The order prohibited garnishment of defendant's SSI benefits and suspended enforcement of all arrears. The court denied plaintiff's request to impute income to defendant or make him responsible for her counsel fees.
Defendant moved for reconsideration. On March 30, 2012, the court entered an order denying reconsideration as to the $20 per week award, but allowed defendant additional time to produce his social security records and limited his liability for any costs to $100. The court explained its reasoning as follows.
Defendant's counsel again points to various cases which indicate that an SSA declaration of disability is controlling and that such a declaration shifts the burden to the opposing party to prove that the disabled party is capable of earning additional income. However, in this case, Defendant has failed to provide any documentation describing his disability or inability to work. Although Defendant states . . . that he is disabled and unable to work, citing various medical conditions, he provides no documentation of these conditions. Without same, Plaintiff is unable to formulate any argument against Defendant's contention that he is unable to earn additional income. As such, the Court declines to reconsider . . . the January 27, 2012 Order which requires Defendant to supply the medical reports he utilized to receive the SSI benefits . . . . Any costs associated with acquiring the social security records shall be split by the parties. Nonetheless, plaintiff may be responsible for no more than $100.00. The Court suggests that defendant request the documents from the doctors.
This appeal followed.
Parents have a legal obligation to support their children. D.W. v. R.W., 212 N.J. 232, 246 (2012). Notwithstanding, we have held that a family judge calculating a child support obligation may not consider SSI benefits received by a disabled parent as income, when those benefits are the sole source of support of that parent and income cannot otherwise be imputed. Burns v. Edwards, 367 N.J.Super. 29, 49 (App. Div. 2004). Because Federal SSI under Title XVI of the Social Security Act, 42 U.S.C.A. §§ 1381–83f, are "means-tested" benefits, they "cannot be included in the child-support calculus." Burns, supra, 367 N.J.Super. at 45; see Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX–B to R. 5:6A at 2568 (2013) (excluding SSI benefits from calculation of gross income). Accordingly, the judge correctly determined that defendant's obligation to pay support could not be based on his SSI benefits.
We reject defendant's argument that the judge denied him the benefit of the presumption of unemployability that arises from an administrative determination of disability. See Golian v. Golian, 344 N.J.Super. 337, 342-43 (App. Div. 2001) (holding under the circumstances of that case that the SSA adjudication of disability constituted a prima facie showing that party was disabled and unable to be gainfully employed and thus shifted the burden to the other party to refute that presumption). In our view, the judge has yet to determine which of the parties will bear the burden of proving that defendant is unable to earn additional income.
Here, unlike in Golian, defendant did not apply for SSI benefits until after the parties' divorce. Plaintiff certified that she was not aware of the nature of defendant's disability, and defendant presented no proofs regarding that disability beyond the SSA award letter and his own certification that the award was based on his "emotional, mental and neurological deficiencies." The court obviously accorded defendant the benefit of the SSA determination in slashing his support to a nominal level (which she stayed pending plaintiff's application to this court), suspending all collection efforts, denying plaintiff's motion to impute income to him, and preserving the filing date of his motion to terminate his support obligation. The fact that she also granted plaintiff's motion for production of the SSI records has not denied defendant the benefit of the SSA's determination. In Golian, both parties were well aware of the plaintiff's medical conditions, as they had arisen during the course of the marriage, and both had the benefit of the SSA file. Golian, supra, 344 N.J.Super. at 342.
In order to suspend a child support obligation, a court must find, not only that a parent is receiving SSI, but also that he or she is unable to earn additional income. Burns, supra, 367 N.J.Super. at 50; 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."). The judge did not deny defendant the benefit of the presumption; she has simply yet to consider whether defendant has met his prima facie burden of demonstrating, on this record, that his disability renders him incapable of gainful employment.
In light of the circumstances of this case and the very minimal record before her, we conclude that the judge did not err in ordering production of the SSA records before considering the matter further. We likewise conclude that she acted well within her discretion in ordering defendant to cooperate in assisting plaintiff in obtaining defendant's SSA records, including the splitting of any costs up to $100. The record reveals that both parents have very limited funds. The records are necessary in order to allow plaintiff to learn the basis of defendant's claimed disability. Accordingly, it is not unreasonable that he share a limited amount of the costs of the records.