E.K. VS. S.A. (FM-15-0387-09, OCEAN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0344-17T2
E.K.,1
Plaintiff-Respondent,
v.
S.A.,
Defendant-Appellant.
____________________________
Submitted September 18, 2019 – Decided October 21, 2019
Before Judges Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-0387-09.
Keith Winters & Wenning, LLC, attorneys for appellant
(Brian D. Winters, on the brief).
Adinolfi, Molotsky, Burick & Falkenstein PA,
attorneys for respondent (Drew A. Molotsky, on the
brief).
1
We use initials to protect privacy interests and to maintain confidentiality.
See R. 1:38-3(d)(1).
PER CURIAM
In this post-judgment matrimonial matter, defendant (ex-husband) appeals
from provisions of an August 24, 2017 Family Part order, imputing income to
him, denying his request to vacate child support arrears and cease all
enforcement measures, denying custody and reunification therapy with his then
un-emancipated children, and awarding counsel fees to plaintiff (ex-wife).
Defendant raises the following points for our consideration:
POINT I[2]: THE COURT ERRED IN IMPUTING
INCOME TO [DEFENDANT] NOTWITHSTANDING
[DEFENDANT] HAVING BEEN ADJUDICATED TO
BE DISABLED BY THE SOCIAL SECURITY
ADMINISTRATION, AND/OR WITHOUT THE
BENEFIT OF A PLENARY HEARING[.]
POINT II: THE TRIAL COURT ERRED IN FAILING
TO VACATE ARREARS AND/OR TO CEASE ALL
ENFORCEMENT MEASURES IN
CONTRAVENTION OF [BURNS V. EDWARDS, 367
N.J. SUPER. 29 (APP. DIV. 2004)] AND [CRESPO V.
CRESPO, 395 N.J. SUPER. 190 (APP. DIV. 2007).]
POINT III: THE TRIAL COURT ERRED IN
ASSESSING COUNSEL FEES[.]
POINT IV: THE COURT ERRED IN FAILING TO
ORDER REUNIFICATION THERAPY BETWEEN
[DEFENDANT] AND THE THEN
UNEMANCIPATED CHILDREN[.]
2
We have eliminated the point heading describing the standard of review and
renumbered the remaining points accordingly.
A-0344-17T2
2
We affirm in part, reverse and remand in part, and dismiss the issues pertaining
to custody as moot.
We glean the facts from the record. The parties were married in 1990, and
divorced in 2009. Five children were born of the marriage, E.A, born August
1991, S.A., born September 1992, Sa.A., born July 1994, I.A., born January
1999, and M.A., born March 2000. The parties entered into a custody and
parenting time consent order, as well as stipulations of settlement, all of which
were incorporated into their 2009 judgment of divorce (JOD). Pursuant to the
terms of the consent order, the parties had joint legal and shared residential
custody of the children, with plaintiff designated the primary residential parent.
Under the stipulations of settlement, defendant was obligated to pay child
support in the amount of $217 per week, based upon imputed income to both
defendant and plaintiff of $35,000 and $20,000 per year, respectively, payable
through the Probation Department and by wage execution upon defendant's
employment.
Thereafter, defendant engaged in extensive post-judgment motion
practice, primarily focused on child support and parenting time. Notably, on
September 25, 2015, defendant's child support obligation was reduced to $174
per week when the court emancipated E.A. and S.A., and directed defendant to
A-0344-17T2
3
pay fifty dollars per month towards arrears. Additionally, on September 30,
2016, defendant's motion to compel parenting time or therapeutic reunification
with Sa.A., I.A., and M.A. was denied. On March 24, 2017, defendant filed the
motion underlying this appeal. Specifically, defendant moved to retroactively
terminate child support and vacate all arrears that accrued since September 22,
2013, when he was adjudicated disabled by the Social Security Administration
(SSA). Defendant also sought a prohibition against all enforcement measures
to collect child support or arrears. Additionally, defendant moved to emancipate
Sa.A., to obtain sole custody of the two remaining un-emancipated children, I.A.
and M.A., and to obtain a counsel fee award in the event plaintiff opposed his
application in bad faith. Plaintiff cross-moved to require defendant to pay a
lump sum payment towards arrears, then totaling $37,747.29, and for counsel
fees.
In defendant's supporting certification, he stated he obtained supplemental
security income (SSI) benefits, "effective September 22, 2013[,]" because he
"suffered a debilitating stroke" which left him with "partial paralysis of one side
of [his] body." Defendant stated he had other medical conditions, including
"cerebral vascular disease, seizure convulsions, hypertension, [and] edema[,]"
and "no other source of income." Defendant also sought to emancipate Sa.A.,
A-0344-17T2
4
then twenty-two-years-old, and sought custody of I.A. and M.A., then eighteen
and seventeen-years-old, respectively, in order to "rekindle [their] previously
warm and loving relationship." In that regard, defendant accused plaintiff of
alienating the children's "affections toward [him], so much so [that] they
refuse[d] to see . . . or speak with [him,]" as a result of which he had previously
sought but was denied reunification therapy.
In opposition, plaintiff "implore[d]" the court to reject defendant's
repeated attempts to shirk "his financial obligations" by "refus[ing] to pay . . .
child support," "def[ying] court orders," "[lying] to judges" and "probation
officers," and "hid[ing] from probation[.]" As to defendant's specific requests,
plaintiff consented to emancipating Sa.A., but objected to defendant's request
for custody of the un-emancipated children, averring that "[s]ince 2013[,] . . .
defendant ha[d] made no attempt to see or contact" the children. Plaintiff also
objected to terminating child support and vacating arrears, asserting
"[d]efendant ha[d] never worked[,]" and "agreed to pay support . . . at the time
of the divorce" despite the fact that he "was[ not] working then either."
According to plaintiff, given defendant's "receipt of benefits," "support from his
family," and "no expenses" listed on his case information statement (CIS), "[t]he
stroke . . . produced no change in his circumstances economically." Further,
A-0344-17T2
5
plaintiff urged the court to impute income to defendant in light of the "questions
raised" in the earlier "social security records supplied by . . . [d]efendant"
regarding "his alleged inability to work in any capacity."
Following oral argument, the judge entered an order granting in part, and
denying in part, the relief requested by defendant. Regarding retroactively
terminating child support and vacating arrears, the judge reduced defendant's
child support to $101 per week, effective September 22, 2013, until Sa.A.'s
emancipation on March 24, 2017. The judge reduced defendant's child support
thereafter to forty-six dollars per week, and adjusted the arrears to reflect all
modifications. See N.J.S.A. 2A:17-56.23a. The judge also ordered Probation
to refrain from levying on or garnishing defendant's monthly SSI benefits, but
permitting other sanctions set forth in Rule 5:7-5.
In his written statement of reasons accompanying the August 24, 2017
order, the judge acknowledged that "[t]he adjudication of disability by the SSA"
constituted "a substantial change in circumstances warranting review and
modification of [d]efendant's child support obligation." The judge also
acknowledged that "SSI benefits [could] not be considered in a calculation of
child support." Further, according to the judge, "[t]he adjudication . . .
constitute[d] a prima facie showing of disability, . . . shifting the burden to
A-0344-17T2
6
[p]laintiff to refute th[e] presumption." Finding that plaintiff failed "to rebut
th[e] presumption," the judge concluded that "[d]efendant's disability render[ed]
him incapable of earning $35,000[] per year through gainful employment as
imputed in the JOD."
However, the judge pointed out that "although the SSA found [d]efendant
sufficiently disabled to award him benefits," the SSA also found "[d]efendant
maintained the residual functional capacity to perform some sedentary work[.]"
Thus, the judge determined that the "'qualified' finding of disability by the SSA
. . . left open the possibility that [defendant] could work in some capacity." In
the absence of any supporting "medical documents" submitted by defendant
verifying his inability "to work in any significant capacity," the judge "impute[d]
minimum wage income to [d]efendant," and used that income, "not the SSI[,]"
to calculate his reduced child support obligation, thereby denying defendant's
request to terminate his child support obligation altogether. Addressing the
remaining issues, the judge denied defendant's request for sole custody of I.A.
and M.A. without prejudice, finding no "showing that circumstances have
changed such that this would be in the children's best interests[,]" denied without
prejudice plaintiff's request for a lump sum payment towards arrears, but granted
A-0344-17T2
7
plaintiff $1500 in counsel fees. The judge entered a memorializing order and
this appeal followed.
Preliminarily, we dismiss as moot defendant's arguments pertaining to
custody and reunification therapy with I.A. and M.A. because I.A. and M.A. are
currently over eighteen years of age and thus no longer subject to the court's
jurisdiction. "It is firmly established that controversies which have become
moot or academic prior to judicial resolution ordinarily will be dismissed[,]"
N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 297 (App.
Div. 2014) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243
(App. Div. 1993)), and "[m]ootness is a threshold justiciability determination
rooted in the notion that judicial power is to be exercised only when a party is
immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J.
Super. 301, 311 (App. Div. 2010).
Thus, "'for reasons of judicial economy and restraint, courts will not
decide cases in which . . . a judgment cannot grant effective relief . . . ,'" Cinque,
261 N.J. Super. at 243 (quoting Anderson v. Sills, 143 N.J. Super. 432, 437-38
(Ch. Div. 1976)), or in which "orders entered . . . have no continuing adverse
consequences[.]" N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super.
252, 264 (App. Div. 2009). Further, the issues raised do not "'involve significant
A-0344-17T2
8
matters of public policy,'" nor are they "'extremely important, and undoubtedly
will recur in cases that are likely to be mooted before adjudication.'" W.F., 434
N.J. Super. at 297 (quoting In re N.N., 146 N.J. 112, 124 (1996)).
Addressing defendant's remaining arguments, we begin with our well-
settled standard of review. It is axiomatic that the scope of our review of the
Family Part's orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We
owe substantial deference to the Family Part's findings of fact because of that
court's special expertise in family matters. Id. at 413. Thus, "'[a] reviewing
court should uphold the factual findings undergirding the trial court's decision
if they are supported by adequate, substantial and credible evidence on the
record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in
original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
279 (2007)).
While we owe no special deference to the judge's legal conclusions,
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),
"'the factual findings and legal conclusions of the trial judge'" should be left
undisturbed unless we are "'convinced that they are so manifestly unsupported
by or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice' or when we determine the court has palpably
A-0344-17T2
9
abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010)
(quoting Cesare, 154 N.J. at 412). Thus, we will only reverse the judge's
decision when it is necessary to "'ensure that there is not a denial of justice'
because the family court's 'conclusions are [] "clearly mistaken" or "wide of the
mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)).
Turning to the specific legal principles pertinent to this appeal, we are
guided by our long standing view that "[t]he obligation to provide child support
'is engrained into our common law, statutory, and rule-based jurisprudence.'"
Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Burns, 367
N.J. Super. at 39). For that reason, "enforcing the parental duty to support
children is 'an inherent part of the "best interests of the child" rubric which
underlies our family courts.'" Ibid. (quoting Monmouth Cty. Div. of Soc. Servs.
for D.M. v. G.D.M., 308 N.J. Super. 83, 88 (Ch. Div. 1997)).
"As a general rule, a parent is obliged to contribute to the basic support
needs of an unemancipated child to the extent of the parent's financial ability
irrespective of the quality of the relationship between them." Martinetti v.
Hickman, 261 N.J. Super. 508, 513 (App. Div. 1993). "However, it is
undeniable that American society is also confronted with the problem of
A-0344-17T2
10
disabled parents who are unable to support themselves, much less their
children." Burns, 367 N.J. Super. at 40. Thus, we have held that "the SSA['s]
adjudication of disability constitutes a prima facie showing that [a parent] is
disabled, and therefore unable to be gainfully employed[.]" Golian v. Golian,
344 N.J. Super. 337, 342-43 (App. Div. 2001). The "burden" then "shifts to [the
contesting party] to refute that presumption." Id. at 343.
We have also held that "SSI benefits" received by a disabled parent
"cannot be included in the child-support calculus." Burns, 367 N.J. Super. at
45. "The 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. See also Crespo, 395 N.J. Super. at 194-95 ("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.").
Likewise, "[b]enefits received through the SSI program are exempt from
attachment, garnishment, levy, execution or any other legal process[,]"
including garnishment or attachment for child support purposes. Burns, 367 N.J.
Super. at 39. See 42 U.S.C. § 659(a).
A-0344-17T2
11
However, "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." Burns, 367 N.J. Super. at 50. Further, such
parents are not exempt from the child support guidelines' "detailed criteria for
imputation of income to parents." Id. at 49. Thus, notwithstanding receipt of
SSI benefits, "[i]ncome may be imputed to a party who is voluntarily
unemployed . . . ." Golian, 344 N.J. Super. at 341 (citing Dorfman v. Dorfman,
315 N.J. Super. 511, 516 (1998)). "[I]n determining whether to impute income,
the guidelines instruct that the trial court must first determine whether the parent
has just cause to be voluntarily unemployed[,]" and "[i]n making that decision,"
considerations include "the reason and intent for the voluntary . . .
unemployment[,]" as well as the "health of the part[y.]" Caplan v. Caplan, 182
N.J. 250, 268 (2005) (quoting Child Support Guidelines, Pressler & Verniero,
Current N.J. Court Rules, Appendix IX-A to R. 5:6A P12 at 2517,
www.gannlaw.com (2005)).
The decision to impute income as well as the amount imputed "is a
discretionary matter" and is based on the court's evaluation of the party's
"capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464,
474 (App. Div. 2004) (citation omitted). In that way, "the imputation of income
A-0344-17T2
12
to one or both parents who have voluntarily remained . . . unemployed, without
just cause, will promote a fair and just allocation of the child support
responsibility of the parents." Caplan, 182 N.J. at 268.
Given these principles, contrary to defendant's assertion, we are satisfied
the judge correctly applied Burns and Golian. We discern no basis to disturb
the judge's decision to impute income to defendant based on the judge's
determination that the SSA adjudication demonstrated defendant had the
capacity to perform some sedentary work, and defendant failed to present any
supporting medical documentation showing he was incapable of earning
additional income. Thus, the judge correctly determined defendant was
unemployed without just cause. Further, the judge imputed minimum wage to
defendant as permitted under the guidelines. See Pressler & Verniero, Appendix
IX-A to R. 5:6A P12 at 2516. Additionally, contrary to defendant's contention,
a plenary hearing was not required because defendant presented no material
factual disputes. See Lepis v. Lepis, 83 N.J. 139, 159 (1980) ("[A] party must
clearly demonstrate the existence of a genuine issue as to a material fact before
a hearing is necessary.").
Likewise, the judge correctly exempted defendant's SSI benefits from
attachment or garnishment, but permitted other sanctions set forth in Rule 5:7-
A-0344-17T2
13
5, authorizing Probation, which is responsible for monitoring and enforcing
compliance with child support orders, to pursue enforcement actions on the
litigant's behalf. See also R. 5:3-7(b) (providing that "[o]n finding that a party
has violated . . . [a] child support order the court may, in addition to remedies
provided by [Rule] 1:10-3, grant . . . [other] remedies" to ensure compliance,
including "suspension of . . . [a] driver's license consistent with law[,]"
"economic sanctions[,]" and "incarceration.").
Finally, an award of counsel fees in Family Part actions is permitted by
Rule 4:42-9(a)(1), and Rule 5:3-5(c). In Mani v. Mani, 183 N.J. 70 (2005), our
Supreme Court summarized the considerations as follows:
In a nutshell, in awarding counsel fees, the court must
consider whether the party requesting the fees is in
financial need; whether the party against whom the fees
are sought has the ability to pay; the good or bad faith
of either party in pursuing or defending the action; the
nature and extent of the services rendered; and the
reasonableness of the fees.
[Id. at 94-95 (alterations in original).]
Here, we agree with defendant that nothing in the record shows the judge
considered the requisite factors. In fact, the judge made no findings, contrary
to Rule 1:7-4(a), mandating, in pertinent part, that "on every motion decided by
a written order that is appealable as of right," the court "shall, by an opinion or
A-0344-17T2
14
memorandum decision, either written or oral, find the facts and state its
conclusions of law thereon . . . ." See Gnall v. Gnall, 222 N.J. 414, 428 (2015)
("Failure to make explicit findings and clear statements of reasoning [impedes
meaningful appellate review and] 'constitutes a disservice to the litigants, the
attorneys and the appellate court'") (quoting Curtis v. Finneran, 83 N.J. 563,
569-70 (1980)). "Naked conclusions do not satisfy the purpose of [Rule] 1:7-
4." Curtis, 83 N.J. at 570. Accordingly, we are constrained to reverse the
counsel fee award, and remand for the judge to make findings in accordance
with Rule 1:7-4(a).
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
A-0344-17T2
15