                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     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.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3413-14T4

SUNIL K. TEWARSON,

        Appellant,

v.

NEW JERSEY DEPARTMENT
OF HUMAN SERVICES,

     Respondent.
_________________________

              Submitted January 18, 2017 – Decided            February 22, 2017

              Before Judges Fasciale and Gilson.

              On appeal from the Department of Human
              Services, Division of Family Development, Case
              No. CS63447067A.

              Sunil K. Tewarson, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Melissa H. Raksa,
              Assistant Attorney General, of counsel; Gene
              Rosenblum, Deputy Attorney General, on the
              brief).

PER CURIAM

        Appellant Sunil Tewarson appeals from a February 6, 2015

final agency decision by the New Jersey Department of Human

Services (DHS), Division of Family Development, Office of Child
Support Services (OCSS), denying his objection to a levy placed

on his bank account for failure to pay child support.          Appellant

contends that the levy was improper because he lost his employment

for six months while incarcerated.     OCSS determined that absent a

court order suspending his child support obligations, such an

incarceration was not grounds for objecting to a bank levy.              We

affirm   because   OCSS's   determination    is   consistent    with   the

governing   statute   and    regulation     and   was   not    arbitrary,

capricious, or unreasonable.

     Appellant was divorced in 2012.        He has three children who

live with their mother, appellant's former wife.          In a property

settlement agreement (PSA) entered at the time of the divorce,

appellant agreed to pay $200 per week in child support.

     Appellant fell behind in paying child support and by November

2013, he owed over $12,000.      Thus, in February 2014, a consent

order was entered requiring appellant to pay his arrears at $30

per week.    The consent order also increased appellant's child

support to $235 per week.      The weekly child support and arrears

of $265 were collected by the County Probation Department through

wage garnishment.

     When the consent order was entered, appellant was employed

as an engineer and project manager.       The consent order, however,

acknowledged that appellant might be incarcerated for a pending

                                   2                              A-3413-14T4
driving while intoxicated (DWI) charge.       Appellant, therefore,

reserved his right to move to modify his child support obligation

should he be incarcerated.

     On June 30, 2014, appellant was incarcerated following his

conviction for his third DWI offense.     He served four months in

jail and approximately two months in an in-patient rehabilitation

facility.     Appellant   represents   that   as   a   result   of   his

incarceration and rehabilitation, he did not work and had no income

between July and December 2014.    Following his release, appellant

resumed working and resumed paying child support in the second

week of January 2015.

     As of June 2014, appellant's child support arrears were over

$12,400.    He did not make any of the twenty-eight weekly child

support payments between July 1, 2014, and December 31, 2014.

Consequently, appellant's child support arrears increased by over

$6800 during the last six months of 2014 and, as of January 2015,

he owed over $19,000 in child support.

     On January 14, 2015, OCSS sent a notice informing Bank of

America (BOA) that it was placing a levy on appellant's bank

account.1   OCSS also notified appellant that a levy had been placed


1
  OCSS had apparently sent a prior notice of levy concerning a
bank account appellant maintained at JP Morgan Chase (Chase). OCSS
states that appellant did not file a timely objection to that


                                  3                             A-3413-14T4
on his account at BOA, and advised appellant that he could contest

that levy so long as he filed the appropriate documentation within

thirty days.      On February 2, 2015, appellant filed a timely

objection to the BOA levy.     In his contest, appellant stated that

he had been incarcerated between July and December 2014, that he

had had no income during that period, and that his lawyer had sent

a letter advising the County Probation Department of his six-month

incarceration.

     On February 6, 2015, OCSS notified appellant that it had

reviewed, but rejected his objection to the levy.        The notice also

informed appellant that he owed $18,798.25 in past due child

support, that BOA would be directed to turn over all monies in his

account to the New Jersey Family Support Payment Center, and that

he had a right to appeal.      Appellant, thereafter, filed a timely

notice of appeal.2

     On   this   appeal,   appellant,   who   is   representing   himself,

argues that the levy should not have been placed on his BOA account

because he was incarcerated, had no income, and his attorney had

notified probation of the six-month incarceration.         OCSS responds



levy. Thus, the levy on the Chase account is not the subject of
this appeal.
2
   In   accordance   with   N.J.A.C.   10:110-15.2(a)(4)(iii)(3),
appellant's bank account remains frozen pending this appeal.

                                   4                               A-3413-14T4
that it has been mandated with the responsibility to collect past

due child support obligations, the governing regulations empower

it to issue bank levies, the regulations limit the grounds for

contesting levies, and appellant's objection did not satisfy any

of the allowable grounds for contesting a levy.         OCSS also points

out that appellant could have obtained a court order suspending

or   modifying   his   child   support    obligations    while   he    was

incarcerated, but he failed to seek such an order.

     Our review of an appeal from an administrative agency's final

determination is limited.      Burlington Cty. Bd. of Soc. Servs. v.

G.W., 425 N.J. Super. 42, 45 (App. Div. 2012) (applying limited

review to a DHS final decision).       We will intervene "in those rare

circumstances in which an agency action is clearly inconsistent

with its statutory mission or with other State policy."          Brady v.

Bd. of Review, 152 N.J. 197, 210 (1997) (quoting George Harms

Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).          Further,

reversal is warranted when an agency's decision is "arbitrary,

capricious, or unreasonable, or [] not supported by substantial

credible evidence in the record as a whole."         In re Stallworth,

208 N.J. 182, 194 (2011) (alteration in original) (quoting Henry

v. Rahway State Prison, 81 N.J. 571, 580 (1980)).

     Federal policy reflected in the Personal Responsibility and

Work Opportunity Reconciliation Act of 1996, 42 U.S.C.A. § 666(a),

                                   5                              A-3413-14T4
was the impetus for New Jersey's enactment of the New Jersey Child

Support Improvement Act (Support Improvement Act), N.J.S.A. 2A:17-

56.53 and 56.57.        Spuler v. Dep't of Human Servs., 340 N.J. Super.

549, 550 (App. Div. 2001).       The Support Improvement Act authorizes

DHS to take necessary action without a court order to recognize

and   enforce     the   authority   of       state    agencies,   including   the

authority    to     "secure     assets       to      satisfy   [child   support]

arrearages."      N.J.S.A. 2A:17-56.53(g).            "The [Support Improvement

Act] authorizes DHS to conduct quarterly data matches with banks

and other financial institutions based on the obligor's social

security number in order to identify financial assets, and to

freeze and seize the funds in order to satisfy child support

arrears."   Spuler, supra, 340 N.J. Super. at 550 (citing N.J.S.A.

2A:17-56.53(g)(2) and -56.57(d)).

      The   Financial       Institution       Data     Match   (FIDM)   program,

implemented by OCSS as an administrative enforcement mechanism for

the collection of child support payable through probation, is

triggered when "non-custodial parents . . . [] owe past due child

support that equals or exceeds the amount of support payable for

three months and for which no regular payments are being made."

Id. at 550-51 (first alteration in original) (quoting N.J.S.A.

2A:17-56.57(a)).        Once a bank levy freezing access to the funds

is effectuated, the child support obligor is given notice and

                                         6                               A-3413-14T4
instructed on how to contest the agency's action.     See N.J.S.A.

2A:17-56.57(d) ("In response to a notice of lien or levy, a

financial institution shall encumber or surrender, as the case may

be, assets held by the financial institution on behalf of any

noncustodial parent who is subject to a child support lien pursuant

to 42 U.S.C.[A.] § 666(a)(4).").

     The regulations permit an administrative contest based on six

identified reasons:

          (A)   Mistaken identity;
          (B)   Incorrect arrear amount;
          (C)   Bankruptcy status;
          (D)   Joint account issues;
          (E)   Because litigation of support has been
                filed and is pending resolution in the
                appropriate court of jurisdiction; or
          (F)   Extreme hardship.

          [N.J.A.C. 10:110-15.2(a)(4)(iii)(1).]

     Alternatively, the child support obligor can seek to obtain

a court order suspending enforcement under FIDM.    R. 5:7-10.     It

should be noted, however, that under the court rule, only the

enforcement mechanisms specified by the court would be suspended:

          Unless otherwise specified in the order, all
          other enforcement remedies, including, but not
          limited to, income withholding, automatic
          entry of judgments, tax offset, license
          suspension,    credit    agency     reporting,
          Financial Institution Data Match (FIDM), . .
          . shall continue unless the court directs
          otherwise.

          [R. 5:7-10(b).]

                                7                           A-3413-14T4
      Here, OCSS acted in accordance with the Support Improvement

Act and the regulations under that act.             Appellant's asserted

reasons of incarceration and notice from his counsel did not meet

the   regulatory   criteria   for   the    agency   to    cancel   the     levy.

Moreover, the record establishes that appellant did not apply for

a court order to suspend his child support obligations while he

was incarcerated. The letter sent by his attorney was insufficient

and did not constitute an appropriate motion.              See R. 1:6-2(a)

(requiring a motion be made by notice of motion that includes the

time and place it is to be presented to the court, the grounds

upon which it is made, and the nature of the relief sought).

      Although not articulated as an extreme hardship, appellant

would not meet that ground because he did not articulate any facts

that would satisfy his burden to prove extreme hardship.                 See In

re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.) (holding the

burden of proving an agency action is arbitrary or capricious

rests on the challenging party), certif. denied, 188 N.J. 219

(2006).   Indeed, appellant states that upon his release, he was

able to resume work.     Accordingly, we discern nothing arbitrary,

capricious,   or   unreasonable     in   OCSS's   final   determination         to

enforce the bank levy.

      Affirmed.


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