SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3184-96T3
LINDA HERD,
Plaintiff-Respondent,
v.
EDWARD R. HERD,
Defendant-Appellant.
___________________________________________________________________
Argued January 12, 1998 - Decided February 6,
1998
Before Judges Havey, Landau and NewmanSee footnote 1.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County.
Samuel C. Inglese argued the cause for
appellant (Moss and Inglese, attorneys; Mr.
Inglese, on the brief).
Jules S. Littman argued the cause for
respondent.
The opinion of the court was delivered by
LANDAU, J.A.D.
This is the appeal of defendant Edward Herd from a Family Part order which denied his motion for modification of prior child support and alimony orders, for credit against the child support by
reason of certain Social Security payments, and for discovery of
the Social Security records of plaintiff Linda Herd.
Pursuant to R. 2:5-1(b), the motion judge has provided a
comprehensive opinion containing his findings of fact and
conclusions of law respecting the two broad areas of contention:
(1) defendant's asserted generalized need for changed circumstances
LepisSee footnote 2 relief as to the previously ordered alimony and child
support awards, and (2) defendant's particularized contention that
governmental benefits paid by Social Security for the child of the
marriage must be deducted from the child support amount calculated
under Appendix IX-A (Considerations in Use of Child Support
Guidelines) before calculating each parent's share of the total
child support obligation.
Respecting the issue of changed circumstances, we are
satisfied that the judge's findings and conclusions should be
affirmed substantially for the reasons set forth in his letter
opinion of January 15, 1997. We note, however, and accept,
plaintiff's unrebutted correction, supported by her certification,
which shows that the Social Security payment made to the parties'
child arises by reason of plaintiff's status as a recipient of
Social Security disability payments, and not by reason of SSI
(Supplemental Security Income) payments. In consequence, we differ
with the judge's resolution of the second issue.
Appendix IX-A, and the Sole-Parenting Worksheet contained in
Appendix IX-C, convince us that the judge erred in failing to give
consideration to the payments received from Social Security for the
benefit of the child. These payments are not, as stated in the R.
2:5-1(b) opinion, the result of plaintiff's entitlement to SSI, but
arise by reason of her entitlement to non-means-tested Social
Security disability payments.
We attach hereto as Exhibit A, a copy of revised paragraph
10.b to Appendix IX-A, and a copy of the new instructions
respecting Line 12 of the Sole-Parenting Worksheet contained in
Appendix IX-B.
We read these portions of Appendices IX-A and IX-B
unambiguously to require deduction from the basic support
computation those non-means-tested benefits paid to or for the
dependent child that arise by reason of either parent's disability
and which have not resulted in any diminution of Social Security
payments to plaintiff.
As explained in Pressler, Current N. J. Court Rules, comment
on R. 5:6A (1998), the guidelines prescribed by Appendix IX-A to
IX-H were recently extensively revised, subsequent to entry of the
order and opinion in this case. Given the significance of these
revisions in clarifying the rationale appropriate to formulating an
equitable approach to calculating and apportionment of child
support, our decision should be consistent with the current
Appendices. We think it likely that, in promulgating the
comprehensive guidelines, the Supreme Court intended that they be
deemed applicable to pending cases such as this. At the very
least, promulgation of the new Appendices must inform the judicial
response as to an equitable method of calculating the total amount
needed for support of the child. De La Ossa v. De La Ossa,
291 N.J. Super. 557 (App. Div. 1996), which treated with earlier
versions of the guidelines, is of limited utility in current
interpretation. Its facts, in any event, are not congruent with
those here involved.
Consistent with the policy clarifications enunciated in the
new Appendices, we remand for reconsideration by the Family Part
the issue of the effect of Social Security benefits received by the
child of the marriage attributable to plaintiff's Social Security
disability status. The total child support amount shall be
recalculated under Appendices IX-A and IX-B (see instructions for
Lines 12 and 13 in Appendix IX-B). To the extent of the percentage
of support assigned to defendant under the guidelines, an
appropriate change in the amount to be paid by defendant for child
support (Line 26) shall be made. We leave to the equitable
discretion of the Family Part the effective date of the
modification so calculated. It shall, however, be not later than
the September 1, 1997 effective date of the revised Appendices.
Reversed and remanded in part; affirmed in part.
Appendix IX-A, paragraph 10.b provides:
Government Benefits Paid to or for Children - In some cases, government benefits may be received by or for a child based on a parent's earnings record, disability, or retirement (e.g., Black Lung, Veterans Disability, Social Security). Such payments are meant to replace the lost earnings of the parent and are paid in addition to the worker's or member's benefits (i.e., payments to family members do not reduce the member's benefits). A parent may also receive other non-means-tested government benefits that are meant to reduce the cost of the child such as adoption subsidies (N.J.A.C. 10:121-2). Supplemental Security Income (SSI) and welfare payments received for or on behalf of a child are not included in this category since they supplement parental income based on financial need. If non-means tested benefits are paid to or for a dependent child for whom support is being determined, the benefits must be deducted from the basic support obligation (see Potter v. Potter, 169 N.J. Super. 140 (App. Div. 1979) and De La Ossa v. De La Ossa, 291 N.J. Super. 557 (App. Div. 1996))(Emphasis added). The deduction is provided because the receipt of such benefits reduces the parents' contributions toward the child's living expenses (i.e., the marginal cost of the child). If the benefits received by the child are greater than the total support obligation (i.e., the amount of the obligation after deducting the benefits is zero), no support award should be ordered while the child is receiving the benefits. The benefits will continue to be paid by the government agency to the custodial parent in lieu of child support. If the total obligation is greater than the benefits received by the child, the non-custodial parent's income share of the residual amount (after deducting the benefits) is the support award to be paid to the custodial parent. Government benefits paid to or for a child that reduce benefits paid to a non-custodial parent (an apportionment) should not be deducted from the basic child support award, but should be used to offset the parent's child support order (i.e., the apportionment represents a payment toward the support order similar to a garnishment). (Emphasis added).
Appendix IX-B, Sole Parenting Worksheet
Line 12 - Deducting Government Benefits Paid to
or for the Child
Enter
government benefits received by the child on
behalf of either parent on Line 12.
If a child is receiving government benefits based on
either parent's earning record, disability, or
retirement, the amount of those benefits must be deducted
from the total support award (regardless of the effect of
the child's benefit payments on benefits paid to the
parent). Such benefits include, but are not limited to:
Social Security Retirement or Disability, Black Lung, and
Veteran's Administration benefits. Also included are
non-means-tested government benefits meant to offset the
cost of the child such as adoption subsidies (N.J.A.C.
10:121-2). SSI, public assistance (TANF), and other
means-tested benefits are not government benefits based
on a parent's earnings record, disability or retirement
and should not be included on Line 12. If the government
benefit received by the child is greater than the total
support award (i.e., the amount of the total support
award after deducting the government benefit is zero or
less), the amount of the government benefit that is being
paid to or for the child represents the support award.
In such cases, the support award should be made payable
directly to the obligee (i.e., from the government agency
to the obligee; not through Probation). If the
government benefit is less than the total support
obligation, it shall continue to be paid directly to the
obligee and the residual amount shall be paid through
Probation.
Note that these benefits are not included in the
gross income of the recipient parent.
Line 13 - Calculating the Total Child Support Amount
Add
the basic child support amount, net child-care
cost, health insurance cost for the child, predictable
and recurring unreimbursed health-care costs above $250
per child per year, and court-approved predictable and
recurring extraordinary expenses. Then,
Subtract
any
government benefits received by the child. The result is
the Total Child Support Amount. [Math: ((Line 7 + Line
8 + Line 9 + Line 10 + Line 11) - Line 12)].
Enter
the
total support amount on Line 13.
If the total child support amount is zero, (the
government benefit exceeds the total child support
amount),
STOP!
Government Benefits paid directly to
child's custodian will substitute for the child support
order. Otherwise, continue to Line 14.
Footnote: 1Judge Newman did not participate in oral argument. However,
the parties have consented to his participation in the decision.
Footnote: 2Lepis v. Lepis,
83 N.J. 139 (1980).