A number of years ago I represented a great client in their divorce matter here in Middlesex County, New Brunswick, New Jersey. The amount of child support was the issue that the other attorney and I did not agree on. The other lawyer argued that his client’s income for calculation of child support should be limited to what his client was receiving in social security disability benefit payments. I argued that, while this income should certainly be part of the child support equation, the additional income that his client could be making without losing the social security benefits should be included. Ultimately, the other lawyer and I argued the issue in the judge’s chambers and I won! Recently, the New Jersey Appellate division affirmed that my position (and the judge who handled my case) was the correct one.
On September 21, 2015, the New Jersey Appellate Division decided the case of Arede v. Arede. Paulo and Aurora married in September 2001, and separated shortly thereafter in September 2005. They had one child together. After the divorce complaint was filed in April 2006, the trial judge entered a pendente lite order. Pendente lite means “awaiting the litigation” or “pending the litigation”. In divorce, a pendente lite order is often used to provide for the support of the lower income spouse while the legal process moves ahead. Pendente lite support is paid while the divorce is still going on. This order required Paulo to pay $ 325 every week for child support, and $ 755 weekly for alimony. Paulo, however failed to make theses support payments during the course of the divorce proceedings. As a result, several enforcement and contempt orders were issued against him, as well as bench warrants for his arrest, which led to his ultimate incarceration.
At the conclusion of a twelve-day trial, the judge issued a detailed oral decision. Using the submitted financial evidence, the judge re-calculated Paulo’s child support obligations, and retroactively modified alimony from June 23, 2006 to April 15, 2009 to $ 385 per week. The judge also modified child support to $ 229 per week. A dual final judgment of Divorce entered on April 15, 2009 memorialized this decision. On January 21, 2010, the Probation Division filed a motion to enforce litigant’s rights because Paulo failed to maintain alimony and child support. If your former spouse is deliberately ignoring a court order, you can file a motion to have the court step in and order your former spouse to comply. In New Jersey, this is called a motion to enforce litigant’s rights. In this type of motion you are basically asking the court to hold your ex-spouse in contempt. If the court rules in your favor, it will order your former spouse to comply with the original order or face the consequences of continuing to ignore it. Paulo owed $ 111,045.75 in support payments at that time. In response, on January 25, 2010, Paulo filed a motion to terminate or modify alimony and child support and extinguish his arrears. He argued that the judge’s calculation of his support obligations was incorrect. On March 12, 2010, the judge entered an order denying the motion.
On February 16, 2010, the judge amended the dual final judgment of divorce, and modified alimony retroactively to $ 385 per week from June 23, 2006 through April 15, 2009, and from April 15, 2009 through April 15, 2010 to $255.81 per week. Furthermore, the judge ordered the Probation Division to audit Paulo’s account and adjust his arrears to provide him an appropriate credit. Paulo did not appeal the judgment of divorce, March 12, 2010 order, or the amended judgment of divorce, or seek reconsideration. He did however file a motion to disqualify the judge. He alleged that the judge’s biased, “fraudulent and irresponsible [support] calculations in 2006, [which] caused [Paulo] to be imprisoned for debt on ‘fictitious’ child support amounts,” and financial conflict of interest. Paulo also filed a cross-motion opposing the motion to enforce litigant’s rights, that the Probation Division had filed on January 21, 2010. He argued that the Probation Division’s motion was “frivolous and vexatious,” and violated both Rule 1:4-8 and New Jersey Statute 2A:15-59.1. On March 2, 2010, Aurora herself filed a motion to enforce litigant’s rights. The judge issued an oral decision after oral argument for all three motions. The judge found no reason for her disqualification, and rejected Paulo’s argument that she incorrectly calculated the support obligations. On May 18, 2010, the judge issued an order, that denied Paulo’s motion and cross-motion and granted the Probation Division’s and Aurora’s motions to enforce litigant’s rights. Additionally, the order also stated that the March 12, 2010 order had denied Paulo’s motion to modify or terminate alimony and support based on the judge’s alleged improper support calculations.
In April 2012, Paulo applied for Supplemental Social Security Income Benefits. On June 11, 2013, the Social Security Administration told him that he was declared disabled as of April 1, 2012, and would receive social security income benefits of $ 742.25 every month. These benefit payments would begin in July 2013. Interestingly, the notice did not specify the condition for which Paulo was declared disabled or state that he was permanently disabled and unable to work. Conversely, the notice stated that his disability was temporary and he could work while receiving social security benefits.
On December, 5, 2013, Paulo filed a motion to terminate child support and child support arrears as of August 8, 2013. Paulo argued that he was receiving social security income, had no other source of income, and was unable to work because of a mental disability. Paulo, however, failed to submit any competent evidence to support his claim that he suffered from a permanent disability and could not work. Aurora challenged Paulo’s claim that he was unable to work due to a mental disability. She moved the court to impute income on him based on his past income and earning potential.
Paulo once owned and was the chief executive officer of two lucrative trucking businesses. In 2005 he earned $ 2537 per week in gross income, but closed he business in 2006 because he was repeatedly incarcerated for failing to pay child support. He worked for a friend’s business driving clients after April 1, 2012, the date the social security administration declared him disabled. He earned $ 320 a week, of which $ 250 was garnished for child support. While Paulo testified that he no longer worked at that job, there was no evidence he was involuntarily fired, or otherwise involuntarily unemployed. He had a valid driver’s license, access to a car, was driving, and understood English.
In a January 16, 2014 order, a trial judge determined that Paulo had the ability to earn additional income. To properly calculate child support, the judge imputed income to Paulo in the amount of $ 320 per week. The judge then applied the self-support reserve test enumerated in the Child Support Guidelines to set child support at $ 36 per week. The judge ordered Paulo to pay $ 154.80 per month plus an additional $ 20 per moth toward arrears, effective December 5, 2013. This order allowed for a bench warrant to be issued for Paulo’s arrest if he missed two consecutive child support payments. Paulo filed a motion for reconsideration. He argued that the judge did not correctly calculate the self-support reserve test to calculate child support. Aurora requested that child support should be increased to $ 79 a week. The motion was denied because the judge concluded that according to Appendix IX-A of the Guidelines, a person who makes $ 232 per week is considered to be below the poverty line.
Paulo appealed and argued that the judge should not have imputed income on him. The New Jersey Appellate Division began its decision by stating that they review a judge’s decision to impute income for the abuse of discretion. The court defined an abuse of discretion to occur if a judge “failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence.” The New Jersey Appellate Division found no abuse of discretion. Just because a parent receives social security income benefits does not necessarily mean that a child support obligation must be suspended or reduced. Instead, the court must find that the parent is receiving social security income, and is not able to earn additional income. However, if the court finds the parent receiving social security income is earning or is able to earn additional income, it may impute income to the parent. In imputing income, the court must consider “potential earning capacity” rather than actual income. In this case, Paulo submitted no evidence that his was not able to earn additional income. Therefore, the New Jersey Appellate Division affirmed the January 16, 2014 and March 24, 2014 orders.
Please contact my office if you or a loved one faces an issue regarding support of your child.