Idell v. Idell

• Decision Date: 12 May 2022
• Docket Number: A-3662-20
• Parties: GINA IDELL, n/k/a GINA COX, Plaintiff-Appellant/ Cross-Respondent, v. MICHAEL IDELL, Defendant-Respondent/ Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

GINA IDELL, n/k/a GINA COX, Plaintiff-Appellant/ Cross-Respondent, v. MICHAEL IDELL, Defendant-Respondent/ Cross-Appellant.

No. A-3662-20

Superior Court of New Jersey, Appellate Division

May 12, 2022

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.

Submitted April 27, 2022

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No FM-12-1814-05.

Toni Ann R. Marcolini, attorney for appellant/cross-respondent.

Hunnell Law Group, LLC, attorneys for respondent/cross-appellant (Stephanie C. Hunnell and Caitlin Holland, on the briefs).

Before Judges Hoffman, Geiger and Susswein.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Gina Idell, now known as Gina Cox, appeals from a July 16, 2021 Family Part order that granted summary judgment and other relief to defendant Michael Idell pertaining to an eleven-year long overpayment of child support. Plaintiff, on behalf of the parties' children, received both derivative social security benefits based on defendant's disability and direct child support payments from defendant. Plaintiff challenges the retroactive child support modification failure to apply the doctrine of res judicata to the prior court rulings, and refunding of previously paid child support. Defendant cross-appeals from certain aspects of the same order, challenging the $28, 376.49 credit awarded to plaintiff, the amount of the interest awarded to defendant, and the repayment rate set by the court. We affirm in part and remand in part.

We glean the following facts from the record. Plaintiff and defendant married in 1999 and had two sons, born in 2001 and 2004. The parties divorced in 2006. The amended final judgment of divorce awarded joint legal custody with plaintiff as parent of primary residence. Child support was set at $153 per week. Defendant became and was declared permanently disabled by the Social Security Administration (SSA) as of June 2, 2008, following a motor vehicle accident. Defendant agreed to supervised parenting time because he was unable to drive with his children in his car as a result of lingering seizures from the accident. Under Social Security Disability (SSD) eligibility requirements, defendant's disability benefits began in December 2008. Both children began to receive derivative benefits in December 2008 as well. Defendant's full monthly benefit before deductions was set at $1, 512.80 and each of his sons received derivative benefits of $378 per month which were mailed directly to plaintiff. The benefit amounts increased each year and in 2021 totaled $869 per month.

Defendant filed a pro se application to modify child support in April 2009, which was denied on May 1, 2009, for failure to provide required financial information and a failure to demonstrate a change in circumstances. Arrearages were set at $19, 920.13. In January 2010, defendant again moved to reduce his child support obligation but on February 2, 2010, his motion was denied without prejudice for the same reasons. By then, defendant was current on the support order.

Defendant continued to pay child support while deductions were taken from his SSD benefits. As a result, plaintiff received double child support payments from December 2008 until August 2020, and the figure increased due to annual cost-of-living adjustments. The following amounts of child support and SSD benefits paid to plaintiff are undisputed.

Year

SSD Benefits Total

Benefits Per Child Per Month

Child Support Paid by Defendant

Surplus Plaintiff Received from SSD

Support Per 5:6A, IXA

2009

$9, 072

$378 x 2= $756

$7, 956

$1, 116

$0

2010

$9, 072

$378 x 2= $756

$7, 956

$1, 116

$0

2011

$9, 072

$378 x 2= $756

$8, 936

$136

$0

2012

$9, 408

$392 x 2= $784

$9, 434

-$26

$26

2013

$9, 552

$398 x 2=$796

$9, 316

$236

$0

2014

$9, 696

$404 x 2=$808

$9, 516

$180

2015

$12, 374

$515.58 x 2= $1, 031.16

$9, 549

$2, 825

$0

2016

$14, 155

$9, 910 A.I. & $4, 245 B.I.

$9, 672

$4, 483

$0

2017

$14, 155

Estimated to be the same as

2016 $9, 702

$4, 453

$0

2018

$13, 544

Estimated to be an average of 2016/2019

$10, 017

$3, 527

$0

2019

$10, 424

$8, 688 A.I. & $1, 736 B.I.

$9, 898

$526

$0

Total=

$120, 524

$101, 952

$18, 572

A child support hearing was conducted by a hearing officer on June 9 2016, to address the enforcement of support. In a June 9, 2016 order, the court set arrearages at $19, 499.73 as of June 9, 2016, and imposed income withholding on defendant's income from the Pop In Cafe.

Defendant had trouble making the support payments because his SSD benefits were reduced by derivative benefits paid to the children through plaintiff. Despite his disability, defendant still tried to earn income to pay child support. The order continued child support at $186 per week plus an additional $40 per week toward arrears. The order noted:

Defendant is not receiving his regular Social Security payments. The defendant provided a letter from Social Security [that] they are working to fix the problem. In the interim, the children did not receive their auxiliary benefits from Social Security or the child support from the income withholding. The defendant is working part time. The income withholding from the pa[r]t time job to remai[n] in effect until defendant's regular income withholding from Social Security is reinstated. Probation may terminate the income withholding through the part t[i]me employer when the Social Security income withholding is reinstated.

According to defendant, the double payments from his own savings and earnings and his SSD benefits forced him to search for part-time work despite being disabled. Plaintiff received at least $222, 476 in child support and derivative benefits from 2009 to 2019.

On December 26, 2019, following months of unsuccessful negotiations, defendant filed a motion requesting in part: retroactive modification of child support; emancipation of the parties' eldest son; and to compel plaintiff to provide details of the derivative Social Security benefits that she had received on behalf of the children. The court entered a February 28, 2020 order emancipating the parties' eldest son as of July 1, 2019, the date he joined the army, but did not modify the child support based on emancipation.

On June 19, 2020, defendant filed a motion for summary judgment to determine whether: (1) the governmental benefits should be included in the child support calculations; (2) defendant was entitled to a reduction of child support retroactive to the date of his first application for relief after his date of disability and the children's receipt of governmental benefits; (3) child support should be reduced to $0 per week retroactive to April 2009 and continuing through June 30, 2020; (4) recalculating child support retroactive to July 1, 2019, the date of the eldest son's emancipation; (5) a repayment schedule should be imposed for the overpaid child support at the rate of $500 per week plus an initial payment of $10, 000; (6) further child support collection should be stayed pending appeal if the motion was denied; (7) to set a parenting time plan consistent with defendant's proposal; (8) to grant defendant unsupervised parenting time; and (9) to award defendant counsel fees and costs for the motion.

Plaintiff filed a cross motion to: (1) compel defendant to reimburse her for his share of the children's unreimbursed dental bills; (2) compel defendant to furnish proof of life insurance required by the judgment of divorce; (3) find defendant in violation of litigant's rights; (4) award plaintiff counsel fees and costs; and (5) compel defendant to provide three years of complete tax returns.

The court found there were no material facts in dispute and "that as a matter of law, government benefits shall be included in the Child Support guidelines[.]" The court issued August 14 and 20, 2020 orders that granted the motion and cross-motion in part and denied the motion and cross-motion in part. Relevant to this appeal, the orders granted summary judgment to defendant: (1) determining that the disability benefits shall be considered under the child support guidelines; and (2) defendant was entitled to a reduction in child support retroactive to the date of his first application to reduce support after his date of disability and upon the children's receipt of governmental benefits. The court directed the parties to engage in discovery on the issues of income, disability benefits received on behalf of the children for each year from 2009, and the payment of unreimbursed medical expenses for each year from 2009. The court denied imposing a repayment schedule without prejudice, noting it would address repayment after child support was recalculated for the years 2009-2020. The court suspended defendant's child support obligation and enforcement thereof until further order. The court also directed defendant to submit three years of complete tax returns.

The court indicated that it would conduct a plenary hearing to determine the correct child support level and the child support overpayment that plaintiff received. Rather than participating in a plenary hearing, the parties agreed to submit the issues for a ruling on the papers.

The court issued a July 16, 2021 order that determined plaintiff owed defendant $68, 430.45 in reimbursable child support paid by defendant, to be reimbursed at the rate of $525 per month beginning on September 1, 2021, until paid in full. The order also reduced child support for the youngest child to $0 for so long as plaintiff received...