Opinion
DOCKET NO. A-4731-11T3
11-08-2013
ACBSS YASHAMIRA SANDERS, Plaintiff-Appellant, v. ALEXANDER HERNANDEZ, Defendant.
Atlantic County Department of Law, attorney for appellant (Audrey M. Sharp, Assistant County Counsel, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Simonelli.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FD-01-1041-10.
Atlantic County Department of Law, attorney for appellant (Audrey M. Sharp, Assistant County Counsel, on the brief).
Respondent has not filed a brief. PER CURIAM
The Atlantic County Board of Social Services (Board of Social Services) appeals from a January 31, 2012 order, which terminated defendant Alexander Hernandez's child support obligation and arrears, and a subsequent order denying its motion for reconsideration. Neither Yashamira Sanders nor Hernandez participated in the appeal. For the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.
Sanders gave birth to a child, Y.H., on September 7, 2009. Hernandez was listed as the father on the child's birth certificate, and a consent order for paternity was entered on March 3, 2010. Following a hearing on April 15, 2010, Hernandez was ordered to pay child support in the amount of $83 per week effective January 6, 2010, plus $30 per week in arrears, which totaled $1245. Hernandez was also ordered to provide medical coverage and to pay 100% of the child's unreimbursed medical costs in excess of $250 per year.
Because we have not been provided with a copy of the paternity order, we rely on the language of the April 16, 2010 order.
At some point, Sanders began to receive Temporary Aid to Needy Families (TANF) for Y.H., which is part of the Work First New Jersey Act. N.J.S.A. 44:10-55 to -78. After the Division of Youth and Family Services became involved with the family, a paternity test was conducted in October 2011. The test revealed a 0.00% probability that Hernandez was the father of Y.H. Thereafter, on December 8, 2011, Hernandez filed a motion to terminate his child support payments and arrears based on the paternity test results that excluded him as the child's father.
Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.
Following oral argument, the court entered an order on January 31, 2012, terminating Hernandez's child support obligation and his arrears totaling $5,608.99. The order stated Hernandez was "disestablished as the biological father of the minor child [Y.H.]" and vacated any obligation to pay support arrears to the Board of Social Services.
Although the Board of Social Services indicates in its appellate brief that it filed a complaint as assignee of Sanders to enforce Hernandez's support obligation, we have not been provided with a copy of the complaint.
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A motion for reconsideration filed by the Board of Social Services was heard on April 11, 2012. Neither Sanders nor Hernandez was present at the hearing. The attorney for the Board of Social Services argued that Hernandez's support obligation could "not be retroactively modified." With regard to paternity, counsel stated:
[COUNSEL]: We would submit that Mr. Hernandez attended both a case management conference as well as a hearing officer hearing and consented to the entry of the judgment of paternity.
THE COURT: Did he do it under oath?
. . . .
[COUNSEL]: At the hearing officer hearing it would be under oath, yes.
THE COURT: Is there a transcript?
[COUNSEL]: I would expect so, yes, Your Honor. . . . Although I have not obtained it.
THE COURT: [I] looked this morning all the way though, going back to 2009, and there was nothing on CourtSmart and no transcript of any testimony. Is there a signed document that Mr. Hernandez signed where he acknowledged paternity?
[COUNSEL]: Your Honor, the court orders which come from the case management conferences are ordinarily signed. I do not have a copy of that order specifically today.
THE COURT: I do. But I can't read the signature. So how do I know that Mr. Hernandez signed that document?
. . . .
Did Mr. Hernandez ever waive a paternity test?
[COUNSEL]: I believe he had to do so in order to consent to the entry of . . . paternity at the case management conference.
. . . .
And . . . for at least two years, Your Honor, there was no objection from Mr. Hernandez that he was the father of this child.
In denying the motion to reinstate arrears due to the Board of Social Services, the court reasoned as follows:
[I]n my judgment, looking, number one, at the situation from an equitable perspective, I do not believe that a person who is later determined not to be the father of the child should be obligated to repay the arrears. I want to make it clear I am not in any way, shape, or form suggesting that if child support is paid . . . I am not suggesting that the child or the mother of the child is obligated to repay the person who is later determined not to be the father that money that's already been paid. But I think that the arrears is in a different category. Arrears are not yet paid. And I understand the illogic of the situation in the sense that if the father or the person who thought he was the father pays the child support and then there's an application later on, and he's determined not to be the father, he's basically out of luck. Where the bad guy who doesn't pay the child support develops the arrears[,] [t]he arrears are wiped out and he gets that benefit[.] I understand that that's somewhat illogical, but from an overall perspective when balancing the equities of requiring the child to repay money that was already paid and wiping out arrearages that never should have accrued, in my opinion it's the right thing to do.
The Board of Social Services argues on appeal that the court erred in eliminating "all arrears including $5434 of arrears due and owing to [the Board of Social Services]" because Sanders "received TANF since the inception of the order." The Board of Social Services also argues "retroactive modification of arrears" violates N.J.S.A. 2A:17-56.23a and "is contrary to public policy."
Findings by a trial judge are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We will "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Pursuant to N.J.S.A. 2A:17-56.23a, "[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification." Furthermore, under N.J.S.A. 44:10-49 "[t]he signing of an application for benefits under the Work First New Jersey Program shall constitute an assignment of any child support rights . . . to the county agency." "The assignment system permits [social services] boards to act on behalf of its recipients to collect court-ordered support and is a proper procedure for recoupment of such grants." Dolberry v. Dolberry, 188 N.J. Super. 265, 271 (Ch. Div. 1982).
It is well-settled "[t]hat he who comes into equity must come with clean hands." Woodward v. Woodward, 41 N.J. Eq. 224, 225 (Ch. 1886). "The doctrine of unclean hands gives expression to the equitable principle that a court should not grant relief to a wrongdoer with respect to the subject matter in suit." Schmidt v. Schmidt, 220 N.J. Super. 46, 51 (Ch. Div. 1987) (citing Faustin v. Lewis, 85 N.J. 507, 511 (1981)).
In Schmidt, the court denied an application by the defendant (a former husband) to vacate a judgment for child support arrears. Id. at 53. The court ruled that defendant was equitably estopped from obtaining relief under the unclean hands doctrine because he intentionally avoided paying child support. Ibid. In addition, the court ordered defendant to pay the arrears to the Bergen County Board of Social Services because his former wife "received welfare payments in lieu of support." Id. at 54. In similar circumstances, a court held:
When a man fails to demand genetic testing and voluntarily accepts the obligations and benefits of parenthood . . . it is he, and not the child or the taxpayers who provide funding for public assistance, who should bear the financial consequences if it is later determined that he is not the biological father.Moreover, this court denied a presumed father's request for reimbursement of child support, even after a paternity test confirmed he was not the biological father. J.S. v. L.S., 389 N.J. Super. 200, 206 (App. Div. 2006) (noting, however, "to the extent he is aggrieved, defendant may sue the biological father . . . for reimbursement"), certif. denied, 192 N.J. 295 (2007).
[Monmouth Cnty. Div. of Soc. Servs. v. D.J.D., 344 N.J. Super. 74, 81 (Ch. Div. 2001).]
In this case, Hernandez waived his right to a paternity test in 2010 and consented to paternity of Y.H. As acknowledged by the trial court, Hernandez would not be entitled to recover any money paid prior to the disestablishment of paternity and he should not benefit from his obvious disregard to pay child support as ordered by the court. See Neiman v. Hurff, 11 N.J. 55, 60 (1952) ("[E]quity follows the common law precept that no one shall be allowed to benefit by his own wrongdoing."); see also Bergen Cnty. Welfare Bd. v. Cueman, 164 N.J. Super. 401, 405 (Cty. Ct. 1978) (ordering a father to reimburse the board of social services when he did not pay child support and the child was "a public charge").
In view of the foregoing, the court erred in eliminating Hernandez's obligation to pay child support arrears to the Board of Social Services. Accordingly, the case is remanded to the trial court to determine the amount owed to the Board of Social Services and the terms of repayment.
Reversed and remanded. Jurisdiction is not retained.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION