Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

What Happens To My N.J. Child Support If They Go To Prison?

            The person going to prison must have their lawyer file a motion with a New Jersey Family Court seeking a temporary suspension (or reduction) of their child support obligation.  Failure to do so will result in child support arrears accumulating.  Upon release, the former prisoner would then need their attorney to file another application but it may be too late.  The following New Jersey Appellate Case deals with an engineer who was paying child support but was then facing jail time for a DWI charge and how the courts and other government agencies handle these types of cases. 

            In Tewarson v. N.J. Department of Human Services, father Sunil Tewarson appealed from a final agency decision of the New Jersey Department of Human Services, Office of Child Support Services, dated February 6, 2015, that denied his objection related to a levy that was placed on his bank account because he failed to pay child support. Sunil argued that the levy was not proper because he lost his job while he was incarcerated. The Office of Child Support Services concluded that without a court order that suspended his child support obligations, incarceration was not a valid ground to object to a bank levy. The New Jersey Appellate Division agreed and affirmed the decision of the Department of Human Services because the decision was consistent with the relevant statutory law and regulation, and was not arbitrary, capricious, or unreasonable.

            Sunil got divorced in 2012 and had three children with his former wife. All the children lived with their mother. The parents had agreed to a property settlement agreement at the time of divorce, in which Sunil agreed to pay his former wife $ 200 a week in child support.  He fell behind on his child support payments. By November 2013, he owed his ex-wife more than $ 12,000. Consequently, a consent order was entered in February 2014 that required Sunil to pay back his child support arrears at a rate of $ 30 every week. Additionally, the consent  order increased his child support obligation to $ 235 a week.  Both the weekly child support and arrears were collected together by the County Probation Department through a wage garnishment.

            At the time the consent order was entered, Sunil was working as an engineer and project manager. However, the consent order stated that Sunil might have to go to jail for a still pending driving while intoxicated charge. As such, Sunil reserved his right to file a motion to modify his child support obligation if he should become incarcerated.   

Sunil was incarcerated on June 30, 2014 after his third DWI charge. He spent four months in jail, and almost two months in a rehab facility. He argued that because of this rehab and incarceration, he was not able to work and did not earn income between July and December 2014. After he was released he started working again, and resumed paying child support in the middle of January 2015.

Sunil’s child support arrears were more than $ 12,400 as of June 2014. Between July 1, 2014 and December 31, 2014, he did not make any of his twenty eight weekly child support payments. As a result, his child support arrears increased by more than $ 6,800, and he owed more than $ 19,000 in child support arrears as of January 2015.

The Office of Child Support Services sent a notice to Bank of America on January 14, 2015 that informed them that they were placing a levy on Sunil’s bank account. They also notified Sunil that they had placed a levy on his Bank of America account, and advised him that he could challenge the levy, only if he filed the proper documentation within a thirty day period.  Sunil then filed an objection to the levy on February 2, 2015. He argued that he had been incarcerated between July and December 2014, and as a result did not earn any money during that time. He also had his attorney send a letter to the County Probation Department informing them about his six-month incarceration.

The Office of Child Support Services sent a notice to Sunil on February 6, 2015 that they had reviewed and rejected his challenge to the levy. The notice further informed him that he still owed his ex-wife $ 18,798.25 in unpaid child support, and that Bank of America would be told to turn over all money in the account to the New Jersey Family Support Payment Center, but that he still had a right to appeal this decision. Unsurprisingly, Sunil filed an appeal to the New Jersey Appellate Division.

On appeal, Sunil argued that the levy should never have been placed on his Bank of America account because he was incarcerated, did not have any income during that time, and his lawyer had notified the County Probation Department of his six month incarceration. The Office of Child Support Services countered that it had the express duty and responsibility to collect on past due, unpaid child support arrears, the authoritative regulations gave them the power to issue bank levies, the same regulations narrowed and limited the grounds for which these levies could be challenged, and that Sunil’s objection did not raise any of the permissible grounds for challenging a levy. The Office of Child Support Services further argued that Sunil had the opportunity to, and should have gotten a court order to modify or suspend his child support obligations for the time he was incarcerated, but he failed to obtain such an order.

The New Jersey Appellate explained that their review of an appeal of a final determination made by an administrative agency, such as the Office of Child Support Services in the Department of Human Services, is limited. As such, an appellate panel will only intervene in rare circumstances where an action made by an administrative agency is very clearly inconsistent with State policy or its stated statutory purpose. Moreover, reversal of such a decision is only warranted when the administrative agency’s decision is arbitrary, capricious, or unreasonable, or unsupported by substantial credible evidence in the record.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 reflects a federal policy that was the basis for New Jersey enacting the New Jersey Child Support Improvement Act. This Act authorizes the Department of Human Services to take necessary action to recognize and enforce the authority of state agencies, which includes the power to collect assets to pay off child support arrears, without first getting a court order. The Child Support Improvement Act also gives the Department of Human Services the power to freeze and seize the funds in bank accounts to pay off child support arrears. This program, which is administered by the Office of Child Support Services is an administrative enforcement tool to collect child support that is payable through probation, and is triggered when a parent owes past due child support that is equal to or more than the amount of child support they are obligated to pay for three months. Regulations allow for a challenge to a bank levy made in an effort to collect child support for six reasons, including: (1) mistaken identity; (2) incorrect arrear amount; (3) bankruptcy; (4) issues with joint accounts; (5) the existence of pending litigation regarding support; and (6) extreme hardship.

The New Jersey Appellate Division found that the Office of Child Support Services had acted within the bounds of the Support Improvement Act, and the regulation promulgated under the act. Sunil’s reasons for challenging the agency decision, that he was incarcerated, did not satisfy the regulatory criteria to challenge the bank levy. Moreover, he never applied for a court order to suspend his child support payments for the time he was incarcerated. The letter his lawyer sent was not sufficient and was not an appropriate motion. Furthermore, there was nothing arbitrary, capricious, or unreasonable about the final determination made by the Office of Child Support Services to enforce the bank levy. Therefore, the New Jersey Appellate Division affirmed the final determination.