I am well aware of the case of Halliwell v. Halliwell and how it applies to post-application for modification of support as a result of incarceration.

However, does anyone know if the court can impute income to an incarcerated obligor on an initial child support determination?  I was thinking impute the obligor at minimum wage and suspend enforcement pending release.  It's what the Board of Social Services does, correct?

Unfortunately, I received a decision on a pre-FD denying child support since the obligor was incarcerated and unable to pay.

Thoughts?  Case law on point in support of the court's decision?

Thanks in advance.  Replies on or off the listserv appreciated.

Rachel:  In Bergen we proceed as you suggested -- the $5/wk obligation and suspend enforcement during the current incarceration.  That's on intial orders and it is based on the child support guidelines discretion of between $5/wk and the minimum amount at Table IX-F of the guidelines.  I don't know of any case law on this issue involving an icarcerated obligor and the entry of an initial child support order.  The Halliwell decision is an interesting hybrid of two trial court decisions, Steinhauer and Topham-Rapanotti.  In the Steinhauer case, Judge Koblitz came up with the scheme of a obligor being deserving of a modification when incarcerated for a year or more and having no assets.  From what I recall of Topham-Rapinotti, the judge denied relief to the incarcerated obligor finding that the commission of a crime is the ultimate voluntary act.  The appellate court in Halliwell combined the two.

From Fall & Romanowski, New Jersey Family Law, Relationships Involving Children (GANN), beginning on page 723:

g. Post-judgment incarceration or loss of professional license. "[L]ong term incarceration is a significant change of circumstances which prevents the obligor from earning money to pay child support." Bergen County v. Steinhauer, 294 N.J. Super. 507, 510 (Ch. Div. 1996). Nevertheless, incarceration typically generally results in the suspension of the support obligation or enforcement efforts instead of modification of the underlying award. See 39:1. In both Bergen County v. Steinhauer and Topham-Rapanotti v. Gulli, 289 N.J. Super. 626, 634 (Ch. Div. 1995), the Chancery Division suspended the incarcerated obligor's support obligation until his release. As discussed below, this approach was approved in Halliwell v. Halliwell, 326 N.J. Super. 442, 457-458 (App. Div. 1999).

Thanks, Hanan! Have a question for you concerning Somerset County child custody expert regulars. Talk to you later.

Rachel's question / issue is different. If we're talking about ESTABLISHING an obligation, not MODIFYING one, then it's not a question of whether Lepis is met as a result of the incarceration. 

I have the same general issue - a client with a criminal conviction for a sexual offense that will cause him to fail any kind of background check. He lost his job due to a disability, but when/if she's able to return to work, he's not getting anything like what he had before ($175K job in finance industry). (You may remember the case, Rachel, you referred it to me and I'm still not sure I should've taken it...).  

I don't think there's published case law on it. At least, I looked and didn't find any. The court needs to determine support based on the facts as they exist when the order is entered. There's no Lepis hill to climb on that, and the obligor is not WILLFULLY underemployed (or unemployed if incarcerated) as of that date.  

It's a tougher point than the Halliwell / Lepis issue. Below is the brief section on it, but I don't know how much help it will be. 

------------------------------

 David Perry Davis, Esq.

 112 West Franklin Avenue

 Pennington, NJ 08534

 www.FamilyLawNJ.pro 

 Voice: 609-737-2222

 Fax: 609-737-3222

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Legal Argument
I. DEFENDANT'S SUPPORT OBLIGATION SHOULD BE MODIFIED AS A RESULT OF HIS CURRENT MEDICAL STATUS AND INABILITY TO WORK.

Initially, plaintiff argues that the Court cannot address the issue of the modification of a pendente lite support order without a trial. There is no legal support for this conclusion.

To modify a final order, the movant has the burden of demonstrating a substantial, unanticipated, and permanent change in circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). A hearing must be held whenever a "material fact question" is raised by conflicting certifications between the parties. Tancredi v. Tancredi, 101 N.J.Super. 259 (App. Div. 1968), Shaw v. Shaw, 138 N.J.Super. 436 (App.Div.1976).

This is simply not so when, as here, a pendente lite obligation is at issue. The modification of an interim support order requires that the movant demonstrate the lower threshold of "good cause." Mallamo v. Mallamo, 280 N.J.Super. 8, (App. Div. 1995). The Court retains discretion to adjust interim support obligations based on the papers submitted. "There is no question that pendente lite support orders are subject to modification prior to entry of final judgment...." Tannen v. Tannen, 416 N.J.Super. 248 (App. Div. 2010), citing Mallamo.

Defendant has provided unambiguous reports from seven separate orthopedic doctors. He has provided a complete, detailed Case Information Statement as well as every conceivable financial document, including all paystubs and account statements since the beginning of the year. The documents show that defendant's current net income is $3,212.84 per month. His current obligation is $7,000 per month.

It is respectfully submitted that defendant has demonstrated "good cause" to modify the pendente lite order. Defendant has suggested that requiring him to pay 40% of his net disability income would be an appropriate interim award, but the actual amount set is obviously within the court's discretion. Basing his obligation on a percentage of his income would obviate the need for another return to court when defendant qualifies for either Long Term Disability or Social Security Disability (when defendant has been disabled long enough to qualify). 

II. THE COURT IS NOT PRECLUDED FROM MODIFYING DEFENDANT'S PENDENTE LITE SUPPORT AS A RESULT OF HIS CONVICTION.

Plaintiff cites to Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) for the prospect that the court cannot take into account defendant's decade old conviction when addressing an imputation of income. 

Halliwell is immediately distinguishable, both in law and as a matter of equity. In Halliwell, the movant was seeking to modify a final obligation that occurred after his income level had been established. The court held that a subsequent conviction does not automatically require a finding of a change in circumstances and that the Lepis threshold had not been met.

Initially, Lepis is not applicable here as a pendente lite, not final, order is at issue.

Defendant's conviction is at this point irrelevant. He has not been denied employment as a result of it; he has been out of work for over a year as a result of an injury. In the context of the establishment of an obligation, the court would have to review the factors in Caplan v. Caplan, 182 N.J. 250, 271 (2005) (discussing discretion in the award of child support); Heinl v. Heinl, 287 N.J.Super. 337, 345 (App. Div. 1996) (discussing alimony).

David has correctly identified the issue.  Should an initial child support determination be treated differently than a modification application for those incarcerated.

Why should one incarcerated Inmate be treated differenly than another?  In my case, it was a pre-FD and the judge literally denied child support entirely since the Obligor was incarcerated at the time of the initial application (my FD application).  I represent the obligee.  I'm very tempted to do a pro bono appeal just to highlight the inconsistency of treatment of incarcerated folk in our family part.  Now I just need to convince the client.