Appeal Of Child Support On Due Process Grounds
- December 15, 2014
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In the recent Appellate Division case out of Essex County, Barreto v. Bryant, the Defendant, Juan Bryant, appealed from a 2013 Family Court Order that denied his pro se Motion to modify a prior Court Order setting child support for a child that was conceived by he and the Plaintiff, Evelyn Barreto. In 2012, the Defendant’s child support obligation was set by the court at $153 a week with a $5,049 arrears. This Order further specified that the child support was calculated using the NJ Child Support Guidelines and New Jersey Court Rule 5:6A based upon the Defendant’s imputed income of $57,750. In late 2012, the Defendant first sought to modify his obligation based upon changed financial circumstances. In 2013, a judge denied this requested because the Defendant failed to provide sufficient proof that he was experiencing a significant and permanent/long term change in circumstances. Soon thereafter, the Defendant filed another Motion for a downward modification of his child support obligation and this time provided his W-2 documents from 2012 which demonstrated that his annual pay was $33,470. At a hearing before a hearing officer held on the matter, the Plaintiff was present and the Defendant did not physically appear. The hearing officer denied the Defendant’s Motion and noted that the Defendant only lived one hour away and that the court did not allow telephonic appearance for people who are only one hour away. An Order was issued on April 24, 2014 by a Family Court judge which indicated that the Defendant’s Motion had indeed been denied for failing to show a change in circumstances and that the Defendant “lives within [ninety] minutes of the court house and he should appear for court proceedings.” The Defendant filed a timely appeal arguing that he was never contacted by phone for the April 2013 hearing and therefore the merits of his Motion were never heard. The Appellate Division held that self-represented litigants are accorded the same procedural due process rights as those who are represented by counsel. Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014). According to the Appellate Court, the Defendant was not offered a modicum of due process in the proceedings held in April of 2013. During prior proceedings the Defendant was specifically advised that he would have an opportunity to present his proofs to the court and he was denied that opportunity. The Appellate Division offered no conclusions as to the merits of the Defendant’s Motion for a downward modification of his child support but reversed and remanded the case back to the Family Court to hold proceedings that would allow the Defendant to offer his proofs. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, parenting time, child support, child relocation, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.