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Howard v. Kopko

Superior Court of New Jersey, Appellate Division

September 13, 2013

DEBORAH HOWARD, f/k/a KOPKO, Plaintiff-Respondent,
v.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, [1] Koblitz and Accurso.

PER CURIAM

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 ...


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