STATE OF NEW JERSEY VS. OREADER CALLAWAY(13-08-0662, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3413-14T4
SUNIL K. TEWARSON,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF HUMAN SERVICES,
Respondent.
_________________________
Submitted January 18, 2017 – Decided February 22, 2017
Before Judges Fasciale and Gilson.
On appeal from the Department of Human
Services, Division of Family Development, Case
No. CS63447067A.
Sunil K. Tewarson, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Gene
Rosenblum, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant Sunil Tewarson appeals from a February 6, 2015
final agency decision by the New Jersey Department of Human
Services (DHS), Division of Family Development, Office of Child
Support Services (OCSS), denying his objection to a levy placed
on his bank account for failure to pay child support. Appellant
contends that the levy was improper because he lost his employment
for six months while incarcerated. OCSS determined that absent a
court order suspending his child support obligations, such an
incarceration was not grounds for objecting to a bank levy. We
affirm because OCSS's determination is consistent with the
governing statute and regulation and was not arbitrary,
capricious, or unreasonable.
Appellant was divorced in 2012. He has three children who
live with their mother, appellant's former wife. In a property
settlement agreement (PSA) entered at the time of the divorce,
appellant agreed to pay $200 per week in child support.
Appellant fell behind in paying child support and by November
2013, he owed over $12,000. Thus, in February 2014, a consent
order was entered requiring appellant to pay his arrears at $30
per week. The consent order also increased appellant's child
support to $235 per week. The weekly child support and arrears
of $265 were collected by the County Probation Department through
wage garnishment.
When the consent order was entered, appellant was employed
as an engineer and project manager. The consent order, however,
acknowledged that appellant might be incarcerated for a pending
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driving while intoxicated (DWI) charge. Appellant, therefore,
reserved his right to move to modify his child support obligation
should he be incarcerated.
On June 30, 2014, appellant was incarcerated following his
conviction for his third DWI offense. He served four months in
jail and approximately two months in an in-patient rehabilitation
facility. Appellant represents that as a result of his
incarceration and rehabilitation, he did not work and had no income
between July and December 2014. Following his release, appellant
resumed working and resumed paying child support in the second
week of January 2015.
As of June 2014, appellant's child support arrears were over
$12,400. He did not make any of the twenty-eight weekly child
support payments between July 1, 2014, and December 31, 2014.
Consequently, appellant's child support arrears increased by over
$6800 during the last six months of 2014 and, as of January 2015,
he owed over $19,000 in child support.
On January 14, 2015, OCSS sent a notice informing Bank of
America (BOA) that it was placing a levy on appellant's bank
account.1 OCSS also notified appellant that a levy had been placed
1
OCSS had apparently sent a prior notice of levy concerning a
bank account appellant maintained at JP Morgan Chase (Chase). OCSS
states that appellant did not file a timely objection to that
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on his account at BOA, and advised appellant that he could contest
that levy so long as he filed the appropriate documentation within
thirty days. On February 2, 2015, appellant filed a timely
objection to the BOA levy. In his contest, appellant stated that
he had been incarcerated between July and December 2014, that he
had had no income during that period, and that his lawyer had sent
a letter advising the County Probation Department of his six-month
incarceration.
On February 6, 2015, OCSS notified appellant that it had
reviewed, but rejected his objection to the levy. The notice also
informed appellant that he owed $18,798.25 in past due child
support, that BOA would be directed to turn over all monies in his
account to the New Jersey Family Support Payment Center, and that
he had a right to appeal. Appellant, thereafter, filed a timely
notice of appeal.2
On this appeal, appellant, who is representing himself,
argues that the levy should not have been placed on his BOA account
because he was incarcerated, had no income, and his attorney had
notified probation of the six-month incarceration. OCSS responds
levy. Thus, the levy on the Chase account is not the subject of
this appeal.
2
In accordance with N.J.A.C. 10:110-15.2(a)(4)(iii)(3),
appellant's bank account remains frozen pending this appeal.
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that it has been mandated with the responsibility to collect past
due child support obligations, the governing regulations empower
it to issue bank levies, the regulations limit the grounds for
contesting levies, and appellant's objection did not satisfy any
of the allowable grounds for contesting a levy. OCSS also points
out that appellant could have obtained a court order suspending
or modifying his child support obligations while he was
incarcerated, but he failed to seek such an order.
Our review of an appeal from an administrative agency's final
determination is limited. Burlington Cty. Bd. of Soc. Servs. v.
G.W., 425 N.J. Super. 42, 45 (App. Div. 2012) (applying limited
review to a DHS final decision). We will intervene "in those rare
circumstances in which an agency action is clearly inconsistent
with its statutory mission or with other State policy." Brady v.
Bd. of Review, 152 N.J. 197, 210 (1997) (quoting George Harms
Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Further,
reversal is warranted when an agency's decision is "arbitrary,
capricious, or unreasonable, or [] not supported by substantial
credible evidence in the record as a whole." In re Stallworth,
208 N.J. 182, 194 (2011) (alteration in original) (quoting Henry
v. Rahway State Prison, 81 N.J. 571, 580 (1980)).
Federal policy reflected in the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, 42 U.S.C.A. § 666(a),
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was the impetus for New Jersey's enactment of the New Jersey Child
Support Improvement Act (Support Improvement Act), N.J.S.A. 2A:17-
56.53 and 56.57. Spuler v. Dep't of Human Servs., 340 N.J. Super.
549, 550 (App. Div. 2001). The Support Improvement Act authorizes
DHS to take necessary action without a court order to recognize
and enforce the authority of state agencies, including the
authority to "secure assets to satisfy [child support]
arrearages." N.J.S.A. 2A:17-56.53(g). "The [Support Improvement
Act] authorizes DHS to conduct quarterly data matches with banks
and other financial institutions based on the obligor's social
security number in order to identify financial assets, and to
freeze and seize the funds in order to satisfy child support
arrears." Spuler, supra, 340 N.J. Super. at 550 (citing N.J.S.A.
2A:17-56.53(g)(2) and -56.57(d)).
The Financial Institution Data Match (FIDM) program,
implemented by OCSS as an administrative enforcement mechanism for
the collection of child support payable through probation, is
triggered when "non-custodial parents . . . [] owe past due child
support that equals or exceeds the amount of support payable for
three months and for which no regular payments are being made."
Id. at 550-51 (first alteration in original) (quoting N.J.S.A.
2A:17-56.57(a)). Once a bank levy freezing access to the funds
is effectuated, the child support obligor is given notice and
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instructed on how to contest the agency's action. See N.J.S.A.
2A:17-56.57(d) ("In response to a notice of lien or levy, a
financial institution shall encumber or surrender, as the case may
be, assets held by the financial institution on behalf of any
noncustodial parent who is subject to a child support lien pursuant
to 42 U.S.C.[A.] § 666(a)(4).").
The regulations permit an administrative contest based on six
identified reasons:
(A) Mistaken identity;
(B) Incorrect arrear amount;
(C) Bankruptcy status;
(D) Joint account issues;
(E) Because litigation of support has been
filed and is pending resolution in the
appropriate court of jurisdiction; or
(F) Extreme hardship.
[N.J.A.C. 10:110-15.2(a)(4)(iii)(1).]
Alternatively, the child support obligor can seek to obtain
a court order suspending enforcement under FIDM. R. 5:7-10. It
should be noted, however, that under the court rule, only the
enforcement mechanisms specified by the court would be suspended:
Unless otherwise specified in the order, all
other enforcement remedies, including, but not
limited to, income withholding, automatic
entry of judgments, tax offset, license
suspension, credit agency reporting,
Financial Institution Data Match (FIDM), . .
. shall continue unless the court directs
otherwise.
[R. 5:7-10(b).]
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Here, OCSS acted in accordance with the Support Improvement
Act and the regulations under that act. Appellant's asserted
reasons of incarceration and notice from his counsel did not meet
the regulatory criteria for the agency to cancel the levy.
Moreover, the record establishes that appellant did not apply for
a court order to suspend his child support obligations while he
was incarcerated. The letter sent by his attorney was insufficient
and did not constitute an appropriate motion. See R. 1:6-2(a)
(requiring a motion be made by notice of motion that includes the
time and place it is to be presented to the court, the grounds
upon which it is made, and the nature of the relief sought).
Although not articulated as an extreme hardship, appellant
would not meet that ground because he did not articulate any facts
that would satisfy his burden to prove extreme hardship. See In
re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.) (holding the
burden of proving an agency action is arbitrary or capricious
rests on the challenging party), certif. denied, 188 N.J. 219(2006). Indeed, appellant states that upon his release, he was
able to resume work. Accordingly, we discern nothing arbitrary,
capricious, or unreasonable in OCSS's final determination to
enforce the bank levy.
Affirmed.
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