Opinion
DOCKET NO. A-4630-11T1
02-20-2013
MOLLIE EHRLICH, Plaintiff-Appellant, v. GERALD JAFFE, Defendant-Respondent.
Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief). David S. Carton argued the cause for respondent (Mandelbaum, Salsburg, Lazris & Discenza, P.C., attorneys; Mr. Carton, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sabatino.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-0613-12.
Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief).
David S. Carton argued the cause for respondent (Mandelbaum, Salsburg, Lazris & Discenza, P.C., attorneys; Mr. Carton, of counsel and on the brief). PER CURIAM
Plaintiff Mollie Ehrlich, the mother of a minor son, B.E.J., appeals certain aspects of the Family Part's respective orders dated January 9, 2012 and April 9, 2012 addressing child support, unreimbursed medical and educational expenses, and parenting time. We affirm the orders in part, vacate them in part, and remand for additional proceedings.
Plaintiff ("the mother") and defendant Gerald Jaffe ("the father") had an unmarried relationship that resulted in the birth of B.E.J. ("the son") in September 2001. The father, who was born in 1946, is considerably older than the mother, who was born in 1977. The parties have no other children.
In November 2002, the parties entered into a written Parenting Agreement, in which they agreed to share joint legal custody of the son, and respectively designated the mother as parent of primary residence and the father as parent of alternate residence. In addition, the Parenting Agreement provided that the father, who was then working as a musical talent manager, would pay $400 monthly in child support to the mother, who was unemployed and receiving Social Security disability benefits. The parties informally agreed in or about December 2007 to increase the monthly child support amount to $450. From November 2002 through December 2009, the father generally made these monthly payments to the mother, although the mother contends that there was a shortfall of $1,018 during the first four years.
In November 2008, the mother began receiving, on the son's behalf, approximately $887 monthly in Social Security benefits, which was increased to $940 monthly in January 2009. Apparently, these Social Security benefits became payable to the minor son as a result of the father's retired status and his turning the age of sixty-two. See 42 U.S.C. §§ 402(a) and (d). Initially, the father continued to make monthly child support payments to the mother, even though the Social Security benefits were roughly double the parties' agreed-upon $450 monthly child support level. However, in January 2010, he ceased doing so, without the mother's acquiescence.
Twenty-two months after the child support payments had stopped, the mother filed a motion in the Family Part in November 2011 to collect past-due child support and to enforce the father's ongoing support obligation. At the same time, the mother moved to compel the father to pay fifty percent of certain unreimbursed medical and educational expenses and health insurance, pursuant to the terms of the Parenting Agreement. Lastly, the mother moved to establish a schedule of supervised parenting time for the father, with input from the son's therapist.
In his opposing motion papers, the father denied responsibility for child support, both as to the arrears and prospectively. He contended that the Social Security payments being received monthly by the mother for the son's benefit more than sufficiently fulfill the son's support needs. The father also asserted that the mother has incurred unnecessary medical and educational expenses for the son, who has been home schooled, without his consent. The father included in his opposition papers an itemized listing of eighty-three expenses and narrative comments which, according to the father, show that the mother is not owed any unreimbursed monies.
With respect to health coverage, the father contended that the parties had a consistent practice to have the son's step-grandfather provide medical treatment for him. The father asserted that, if such free treatment were no longer available to the son, the mother should explore obtaining Medicaid or private insurance herself since the father is no longer working and does not have private health insurance available through an employer.
As part of his responsive papers, the father cross-moved for, among other things, a declaration that his child support obligation is being satisfied by the son's receipt of Social Security benefits and that no arrears are owed; an order for parenting time to include a phasing-in of unsupervised visits; an order compelling the mother to provide the father with advance notice of non-emergent medical treatment for the son and to investigate the availability of other medical coverage; and a declaration that the father owes nothing for outstanding medical bills.
Upon considering the parties' written submissions and the oral arguments of their counsel, the motion judge entered an order on January 9, 2012, with several facets. First, the order declared that the father owes the mother "no child support because of the Social Security benefits she receives on behalf of the parties' minor child[.]" The court made that declaration without prejudice, in the event that the Social Security benefits are terminated or reduced. The court also determined that the father owes no child support arrears.
On the subject of unreimbursed medical expenses, the court ordered the mother to provide advance notice of the son's treatment, and confirmed a procedure for the father to object to such treatment or to making reimbursement for such care. The court further ordered the mother to provide the father with copies of insurance claims, explanation of benefit forms, and proof of out-of-pocket expenses. The mother was also ordered to furnish the father with such documentation as to the already-incurred medical expenses that had been the subject of her motion. In anticipation that such documents would be furnished, the court encouraged the parties to attempt to resolve their disputes about the father's alleged reimbursement obligation. However, if the parties failed to settle those issues, the court ordered them to attend economic mediation.
The court further ordered the mother to provide proof of the son's health insurance coverage and a quote for such coverage, affording the father an opportunity to propose a cheaper alternative. The court noted that such insurance premium costs shall be shared equally by the parties.
With respect to educational expenses, the court required the mother to provide the father with timely relevant information about the son's school enrollment and academic progress, and with advance notice if she intends to remove him from elementary school. In addition, the court referred the parties' ongoing disagreement over the necessity for any home schooling to mediation if they were unable to resolve their differences.
As to parenting time, the court established certain terms and conditions for visitation, essentially providing for a progressive relaxation of supervision by the mother over time. The court denied the mother's request to have the son's therapist involved in the visitation decisions.
The parties each then moved for reconsideration, furnishing the court with additional certifications and documents expressing their competing positions. The court heard further oral argument and, in an order dated April 9, 2012, denied reconsideration to both parties. In a letter enclosing the order of denial, the motion judge addressed the terms and conditions for upcoming visitation, noting that after the first three such visits were concluded, the son's counselor was to supply a report to the court concerning those visits. The court further provided that, after the next six visits, the parties were to arrange parenting-time mediation with a Family Part staff member.
On appeal, the mother now argues that the trial court erred in (1) denying her motion for past and future child support, (2) denying her motion for reimbursement of medical and educational expenses, and (3) directing the terms of visitation in the manner that it specified. The father opposes these contentions, reiterating that he has no legal obligation to pay child support because of the son's receipt of Social Security benefits. As a subsidiary point, the father contends that if, for the sake of discussion, the New Jersey Child Support Guidelines were applied here, there would be little or no support due to the mother over and above the Social Security benefits.
The father additionally argues that the court properly exercised its discretion in the manner in which it handled the medical and educational reimbursement issues, noting that the mother's requests were inadequately substantiated and that the Parenting Agreement does not call for him to pay for home schooling. Lastly, the father asserts that the orders for parenting time were sensibly crafted, and that there is no demonstrated need for greater supervision of the visits as he attempts to reunify with his son. The father has not filed a cross-appeal on any of the issues.
We first address the central issue of child support. It is well established that both parents of a minor child are presumptively required to shoulder the financial support of that child. See N.J.S.A. 2A:34-23(a) (enumerating various factors in calibrating support); see also Gac v. Gac, 186 N.J. 535, 546 (2006). At times, a child's parents have negotiated, as here, an agreement for child support. The standard for the modification of such a negotiated child support agreement is one of changed circumstances. Smith v. Smith, 72 N.J. 350, 360 (1977); Jacoby v. Jacoby, 427 N.J. Super. 109, 116, 118-119 (App. Div. 2012).
For modest-income parents such as the parties in this case, the State has established presumptive guidelines, and a corresponding worksheet, to calculate child support. See Pressler & Veniero, Current N.J. Court Rules, Appendix IX-A and IX-B to R. 5:6A (2013) ("the Guidelines"). The Guidelines were "developed to provide the court with economic information to assist in the establishment and modification of fair and adequate child support awards." Id. at Appendix IX-A ¶ 1. The economic data and procedures in the Guidelines "attempt to simulate the percentage of parental net income that is spent on children in intact families." Ibid.; see also Caplan v. Caplan, 182 N.J. 250, 264 (2005). The Guidelines were created by taking into account general economic data on matters such as household standards of living; consumer expenditure patterns; food, shelter, transportation and clothing costs; fixed and variable expenses; cost-of-living trends; and other market indicators. See Pressler & Verniero, supra, at Appendix IX-A ¶ 5.
Our Court Rules prescribe that, except for parents with incomes above the specified high-income threshold, the Guidelines "shall be applied when an application to establish or modify child support is considered by the court." R. 5:6A (emphasis added); see also Lozner v. Lozner, 388 N.J. Super. 471, 480 (App. Div. 2006). "A court may deviate from the [G]uidelines only when good cause demonstrates that [their] application . . . would be inappropriate." Lozner, supra, 388 N.J. Super. at 480 (citing Ribner v. Ribner, 290 N.J. Super. 66, 73 (App. Div. 1996)).
Notably, the Guidelines treat "distributions from government and private retirement plans including Social Security" as gross income to be used in computing the monetary child support figure. Pressler & Verniero, supra, at Appendix IX-B, Instructions for Lines 1 through 5, item J.
Here, the Parenting Agreement negotiated between the parties in 2002 does not explicitly address the impact of Social Security benefits payable to the child upon the father's retirement. At most, the agreement more generically states in Article VI(F) that if payments are made for the benefit of the minor that exceed the support due from the father, "such payments made in excess of the monies due under this agreement shall be deemed gratuitous[.]" The wording of this provision is ambiguous, and does not clearly express the intention of the parties with respect to Social Security retirement benefits in particular.
The parties should have contemplated in 2002 the very realistic possibility that the father, by virtue of his age, would retire and become eligible for Social Security before the son reached the age of majority, but they failed to specify their intentions clearly on that subject. The parties now dispute what the agreement means in that regard. Consequently, a plenary hearing should be conducted by the trial court to ascertain the parties' intent, if it can be divined at all. The disputed question of the parties' intent cannot be decided on the basis of conflicting affidavits. See Conforti v. Guliadis, 128 N.J. 318, 322-23 (1992) (requiring plenary hearings to resolve material factual disputes concerning a property settlement agreement); Tretola v. Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006) (requiring a plenary hearing in the context of a child support modification dispute).
In addition, to the extent that the son's ongoing receipt of Social Security benefits in the past four years represents a material "change in circumstances," the trial court should also consider the impact of the Guidelines. Colca v. Anson, 413 N.J. Super. 405, 414-17 (App. Div. 2010). Because the parties' income and expenses reflected in the appellate record are stale, the trial court should be supplied with updated financial submissions.
After reviewing the totality of circumstances following a plenary hearing, the trial court shall reconsider the question of past and future child support and render a new determination. The court shall consider, among other things, the support level indicated by the Guidelines, although it has the authority to deviate from that level if good cause exists to do so. Lozner, supra, 388 N.J. Super. at 480. The court also may consider the relevance, if any, of the prospective intentions of the parties embodied in their Parenting Agreement. As part of this assessment, we defer to the trial court's discretion on the question of whether the mother's inaction for almost two years after the father engaged in self-help by ceasing payments in January 2010 should warrant a reduction of any arrears that may otherwise be owed.
We affirm the trial court's handling of the additional issues the mother has raised on appeal respecting unreimbursed expenses and parenting time arrangements. The court's referral of these matters to mediation, without prejudice to plenary adjudication of those issues by the judge if such mediation failed, was well within the court's discretion. See R. 1:40-5. The referral to mediation wisely could relieve the parties of the time and expense of a plenary hearing on the disputed issues, and the associated counsel fees. If mediation failed, the parties could return to court to have the open issues adjudicated.
Although there is some indication that the son has certain special needs, there was a reasonable basis for the judge's cautious and incremental ruling to allow the father initially to have parenting time with a limited degree of supervision. See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div.) (according deference to the trial court's "exceedingly difficult and delicate" exercise of discretion on custody and parenting time matters), certif. denied, 178 N.J. 34 (2003).
Affirmed in part, vacated in part, and remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION