J.L. VS. B.L. (FM-15-1058-96, 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NOT FOR PUBLICATION WITHOUT THE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-4623-16T2
J.L.,
Plaintiff-Respondent,
v.
B.L.,
Defendant-Appellant.
___________________________
Argued July 10, 2018 – Decided March 19, 2019
Before Judges O'Connor and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FM-15-1058-96.
Eric S. Solotoff argued the cause for appellant (Fox
Rothschild, LLP, attorneys; Eric S. Solotoff, of
counsel and on the briefs; Robert A. Epstein, on the
briefs).
Stephanie A. Lodise argued the cause for respondent
(Baker Hostetler, attorneys; J.L., on the pro se brief).
The opinion of the court was delivered by
O'CONNOR, J.A.D.
In this post-divorce judgment action, defendant B.L., appeals from a
June 9, 2017 Family Part order compelling him to pay plaintiff J.L. $203 per
week for the financial maintenance of the parties' twenty-seven year old son,
Brian.1 We remand for further proceedings.
I
The parties divorced in 1997. They have two children; one is
emancipated and not the subject of this litigation. The other, Brian, lives with
plaintiff and, according to her, suffers from mental health problems that impair
his ability to work. On November 1, 2013, the court entered an order that,
among other things, denied defendant's motion to have Brian declared
emancipated. The court found Brian had a schizoaffective disorder that made
him financially dependent on his parents at that time. The court ordered child
support to continue until it found Brian was no longer incapacitated or
financially dependent.
1
We use initials to refer to the parties and a pseudonym for the child in order
to protect their privacy.
2 A-4623-16T2
N.J.S.A. 2A:17-56.67, which became effective on February 1, 2017, 2
provides that "a child support obligation shall terminate by operation of law
without order by the court when a child reaches [nineteen] years of age . . . ."
N.J.S.A. 2A:17-56.67(a). However, under certain circumstances, a parent's
obligation to pay child support may be extended until his or her child turns
twenty-three years of age. See N.J.S.A. 2A:17-56.67(a), (e). In order to
compel a parent to contribute toward a child's financial maintenance after the
age of twenty-three, relief must be obtained pursuant to N.J.S.A. 2A:17-
56.67(e)(1) or (2).
When N.J.S.A. 2A:17-56.67 became effective in February 2017, Brian
was twenty-six years old and no longer eligible to receive child support.
Therefore, plaintiff filed a motion to compel defendant to contribute toward his
financial maintenance pursuant to N.J.S.A. 2A:17-56.67(e)(2), which provides
in pertinent part:
e. Notwithstanding the provisions of this section, the
obligation to pay child support shall terminate by
operation of law when a child reaches 23 years of age.
. . . Nothing in this section shall be construed to:
....
2
Section 10 of L. 2015, c. 223 provides: "This act . . . shall be applicable to
all child support orders issued prior to, on, or after the effective date." New
Jersey Child Support Program Improvement Act, L. 2015, c. 223, § 10
(codified as N.J.S.A. 2A:17-56.67).
3 A-4623-16T2
(2) prevent the court, upon application of a parent or
child, from converting, due to exceptional
circumstances including, but not limited to, a mental
or physical disability, a child support obligation to
another form of financial maintenance for a child who
has reached the age of 23.
[N.J.S.A. 2A:17-56.67(e)(2) (emphasis supplied).]
In support of her motion, plaintiff submitted a report from Daniel
Zietchick, a licensed clinical social worker. The material information in that
report was that Brian has a schizoaffective disorder, bipolar type; impulse
control disorder; and attention deficit hyperactive disorder. Zietchick opined
Brian is totally disabled psychiatrically and "unable to function independently
in the work place." Zietchick also noted he provides psychotherapy to Brian
and that a psychiatrist prescribed psychotropic drugs to him.
Relying on Zietchick's report, the court found Brian's mental disorders
"significantly impair[] his ability to secure gainful employment and to be able
to care for himself or live independently." The court further found Brian's
condition had not changed over the years and, thus, there had been no change
in circumstance to warrant any modification in defendant's obligation to
contribute toward the child's support. The court granted plaintiff's motion to
compel defendant to pay her $203 per week for Brian's financial maintenance.
4 A-4623-16T2
II
On appeal, among other things, defendant contends Zietchick's expert's
report is deficient and fails to establish Brian has a disability that requires
financial maintenance under N.J.S.A. 2A:17-56.67(e). Defendant also requests
that, if the matter is remanded for further proceedings, it be heard by a
different judge.
This court reviews a trial court's order directing the payment of child
support for abuse of discretion. See Caplan v. Caplan, 182 N.J. 250, 271
(2005) (discussing discretionary decision concerning child support where, as
here, the Child Support Guidelines are inapplicable). We will overturn an
award for child support only if there has been an abuse of discretion, a failure
to correctly apply governing legal principles, or findings of fact that were
clearly mistaken or lacking support in the record. Elrom v. Elrom, 439 N.J.
Super. 424, 433 (App. Div. 2015); Heinl v. Heinl, 287 N.J. Super. 337, 345
(App. Div. 1996).
As stated, N.J.S.A. 2A:17-56.67 terminates child support obligations "by
operation of law when a child reaches [twenty-three] years of age," unless
"upon application of a parent or child," the court converts "a child support
obligation to another form of financial maintenance for a child who has
reached the age of [twenty-three]" "due to exceptional circumstances including
5 A-4623-16T2
. . . a mental or physical disability." N.J.S.A. 2A:17-56.67(e). Significantly,
when N.J.S.A. 2A:17-56.67 was enacted, the Legislature left intact N.J.S.A.
2A:34-23(a), which provides:
The obligation to pay support for a child who has not
been emancipated by the court shall not terminate
solely on the basis of the child's age if the child
suffers from a severe mental or physical incapacity
that causes the child to be financially dependent on a
parent. The obligation to pay support for that child
shall continue until the court finds that the child is
relieved of the incapacity or is no longer financially
dependent on the parent. However, in assessing the
financial obligation of the parent, the court shall
consider, in addition to the factors enumerated in this
section,[3] the child's eligibility for public benefits and
services for people with disabilities and may make
such orders, including an order involving the creation
of a trust, as are necessary to promote the well-being
of the child.
[Ibid. (emphasis supplied).]
3
The factors in N.J.S.A. 2A:34-23(a) are: (1) the needs of the child; (2) the
standard of living and economic circumstances of each parent; (3) the sources
of income and assets of each parent; (4) the earning ability of each parent,
including a parent's educational background, training, employment skills, work
experience, custodial responsibility for children, including the cost of
providing child care and the length of time and cost of each parent to obtain
training or experience for appropriate employment; (5) the need and capacity
of the child for education, including higher education; (6) the age and health
of the child and each parent; (7) the income, assets and earning ability of the
child; (8) the responsibility of the parents for the court-ordered support of
others; (9) the reasonable debts and liabilities of each child and parent; and
(10) any other factors the court may deem relevant.
6 A-4623-16T2
Read together, these provisions mean that "by operation of law," a parent
has no continuing obligation to support an adult child after age twenty-three,
unless the child or the moving parent overcomes that presumption and
demonstrates the child's continuing "severe mental or physical incapacity
causes" his continued financial dependence. When assessing a parent's
financial obligation for a child who suffers from a severe mental or physical
incapacity, the court must consider the factors in N.J.S.A. 2A:34-23(a).
Additionally, "the court shall consider . . . the child's eligibility for public
benefits and services for people with disabilities and may make such orders,
including an order involving the creation of a trust, as are necessary to
promote the well-being of the child." Ibid.Here, defendant asserts the court should not have considered, let alone
relied upon, Zietchick's expert's report because he did not certify that the
statements in his report were true, see R. 1:4-4(b). Defendant does not cite
authority for the premise an expert's report must be certified. However, even
if the report should have been certified, under these particular circumstances
we cannot conclude the trial court's consideration of and reliance upon the
report constituted reversible error.
Defendant does not identify those statements of fact in the report about
which he objects. The few statements of fact in the report are either
7 A-4623-16T2
immaterial to the issues or undisputed. For example, it is neither disputed nor
material what Brian's treatment has been in the past, as the issue before the
court is whether Brain is capable of working today. We are aware of the
statement that Brian is totally dependent upon his mother for financial support,
but the issue is not whether Brian is dependent upon his mother but whether he
is capable of working.
The key material statements in the report are Zietchick's medical
opinions. However, the absence of a certification did not affect the value of
those opinions. Even if Zietchick had executed a certification in accordance
with Rule 1:4-4(b), at best he would have certified that, in his opinion, Brian is
afflicted with the subject disorders and that they presently preclude him from
working. A certification would not have established the validity of the
medical opinions in the report, merely that Zietchick believed them to be true.
Of course, a certification has value if a party contends an expert has
knowingly included an opinion in a report that he knows to be false. Here,
however, defendant is not alleging Zietchick believes the medical opinions in
his report were false. In fact, defendant does not proffer any evidence
challenging the medical opinions in Zietchick's report, whether on the basis
Zietchick falsified his opinions or that the opinions lack merit substantively.
8 A-4623-16T2
We also reject defendant's contention the court was obligated to hold a
plenary hearing. A plenary hearing is not required in every contested
proceeding. A plenary hearing is in order only if there is a genuine, material
and legitimate factual dispute. See Lepis v. Lepis, 83 N.J. 139, 159 (1980)
(holding that "a party must clearly demonstrate the existence of a genuine
issue as to a material fact before a hearing is necessary."); see also Hand v.
Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (explaining that a hearing is
required only when there "is a genuine and substantial factual dispute . . . .").
While it is clear defendant does not agree with Zietchick's opinions, he does
not identify the material fact or facts in dispute that warrant a hearing. For
instance, he did not proffer his own expert's report or any other evidence
challenging Zietchick's conclusions Brian has the subject afflictions and that
they interfere with his ability to work.
Nevertheless, we are constrained to remand this matter for further
proceedings. The trial court did not consider the factors in N.J.S.A. 2A:34-
23(a) before it ordered defendant to pay $203 per week for financial
maintenance. Clearly, not all of the factors apply, but others do including, but
not limited to, the parties' income and assets. In addition, the child's eligibility
for public benefits and services for people with disabilities must be reviewed,
as well. We are aware Brian sought but was not granted SSI benefits
9 A-4623-16T2
approximately four years ago. Notwithstanding, the benefits and services to
which he now may be entitled must be explored.
We have considered defendant's remaining arguments, including but not
limited to the argument this matter should be heard by a different judge, and
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Remanded for further proceedings consistent with this opinion. We do
not retain jurisdiction.
10 A-4623-16T2