October 30, 2013
JUDITH BEYRENT, Plaintiff-Respondent,
DANIEL L. BEYRENT, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 2, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-316-99.
Dughi, Hewit & Domalewski, P.C., attorneys for appellant (Richard A. Outhwaite, on the brief).
Judith Beyrent, respondent pro se.
Before Judges Sapp-Peterson and Sabatino.
Defendant, Daniel L. Beyrent, appeals from the May 11, 2012 Family Part order denying his motion wherein he sought disclosure, by plaintiff, Judith Beyrent, of the amounts of Social Security benefits she received on behalf of their daughter, a reduction in his child support arrears based upon plaintiff's receipt of Social Security benefits on behalf of their child, and counsel fees and costs associated with the motion. In that order, Judge John E. Selser discontinued child support going forward, but ordered defendant to pay seventy dollars per week towards child support arrears.
On appeal defendant raises the following points for our consideration:
THE WITHIN COURT IS A COURT OF EQUITY AND TO PERMIT RESPONDENT TO "DOUBLE DIP" WITH REGARD TO THE SUPPORT OF THE MONOR CHILD, (I.E. SOCIAL SECURITY BENEFIT AND CHILD SUPPORT) IS INEQUITABLE.
THE RELIEF SOUGHT BY THE APPELLANT DOES NOT CONSTITUTE RETROACTIVE MODIFICATION OF CHILD SUPPORT.
We have considered the points raised in light of the record, briefs submitted and arguments advanced therein, as well as, governing legal principles. We are satisfied defendant's arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
Defendant acknowledges that pursuant to N.J.S.A. 2A:17-56.23(a), "[n]o payment or installment of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification[.]" Defendant sought retroactive modification back to the date plaintiff commenced receiving Social Security benefits on behalf of herself and also separately on behalf of their child. Because we have held that "N.J.S.A. 2A:17-56.23(a) does not bar the cancellation of child support arrearages which accrued subsequent to the date of the minor's emancipation as retroactively determined by the court[, ]" Mahoney v. Pennell, 285 N.J.Super. 638, 643 (App. Div. 1995), defendant urges this same reasoning should apply to permit retroactive modification of his child support to the date the Social Security benefits commenced. We disagree.
As we stated in Mahoney, "[i]mplicit, however, in the judicial obligation to enforce the terms of a child support order is the underlying premise that a duty to support exists. Where there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due." Ibid. Plaintiff's receipt of Social Security benefits, unlike a date when a minor child, by judicial decree, becomes emancipated, does not extinguish a duty of support. Ibid. Rather, the receipt of those benefits becomes a factor in determining the appropriate amount of support, if any, which should be imposed upon the obligor. See Capaccio v. Capaccio, 321 N.J.Super. 46, 53 n.9 (App. Div. 1999) (quoting N.J.S.A. 2A-34-23(a)). Here, contrary to defendant's assertions, he was well aware that plaintiff was receiving disability benefits on behalf of the minor child. That issue was addressed when the parties appeared before Judge Michael K. Diamond on December 17, 2004, on defendant's motion to vacate arrears and decrease child support.
During the hearing on that motion, where defendant appeared pro se, the following exchange took place between the court and plaintiff:
[THE COURT]: How much money are you collecting for disability now?
MS. BEYENT: I believe the amount is — I have to look at my statement that I wrote in here. I get — I get sixteen twelve and my daughter gets eight hundred thirty.
THE COURT: You get sixteen thousand you said? What did you say?
MS. BEYENT: One thousand, six hundred twelve dollars.
THE COURT: Sixteen Twelve a month?
MS. BEYENT: Yeah, and my daughter gets eight hundred and thirty dollars a month.
THE COURT: Oh, so she's getting something, so it helps a little bit. I mean it's not the answer to your question but that's a separate issue.
MS. BEYENT: Yes.
THE COURT: Wow. That's got to be thrown into this picture. That — that reduces his obligation.
MS. BEYENT: Your Honor, I put, that's in my, what I —
THE COURT: Yeah, if I, if I did the guidelines, that's going to reduce his obligation temporarily now because that's a factor that has to be considered. Wow.
. . .
THE COURT: Based on the money that you receive and the — the eight thirty a month for her and the sixteen twelve for you, the child support would be fifty dollars giving you the benefit of, effectively him the benefit of receiving that money, based on your present income.
So, if I temporarily reduce that to fifty dollars a week, it's not going to get you [defendant] off the hook for the other monies. But what I would do is I'll reduce it temporarily to fifty, let the arrears accrue. I'm not going to let them put a warrant out for your arrest on an enforcement, but the arrears are going to accrue. You're not going to get away from owing her that money. Even if you file bankruptcy, that money is still owed and sometime in the future she will get that money.
Consequently, contrary to defendant's counsel's argument in the brief submitted on behalf of defendant in this appeal, as is evident from the transcript of the 2004 proceedings, defendant was well aware of plaintiff's receipt of Social Security benefits on behalf of their child and equally aware that the court, sua sponte, considered the amount of the benefit in temporarily reducing the amount of child support to fifty dollars per week. A subsequent April 29, 2005 order continued the December 17, 2004 order. Defendant took no further action to address the impact, if any, upon his child support obligation, plaintiff's receipt of Social Security benefits on behalf of their daughter. He is therefore subject to the anti-retroactivity provisions of N.J.S.A. 2A:17-56.23(a).