top of page

Appellate Cases Filed By Ryan Dornish

Attorney Dornish has filed appeals in with the New Jersey Appellate Division in the areas of Special Needs Trusts and DUI


Annotate this Case






DOCKET NO. A-1013-11T2
















December 11, 2012


Submitted August 13, 2012 - Decided


Before Judges Sapp-Peterson and St. John.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FD-10-0224-08.


Ryan A. Dornish, attorney for appellant.


Shana L. Taylor, Hunterdon County Counsel, attorney for respondent (Michelle A. Nodes, Assistant County Counsel, on the brief).




Marcos Cozze, Jr. appeals from a September 19, 2011 Family Part order, ruling that income from his Self Settled Special Needs Trust1 (Trust) be recognized for the purpose of calculating his child support obligation. There is no dispute that the terms of the trust met the requirements of the Federal Medicaid statute, 42 U.S.C.A. 1396p(d)(4)(A). In that section, Congress specifically permitted a Medicaid recipient to shield certain funds from consideration for his or her Medicaid eligibility by creating a supplemental needs trust, provided that after the recipient died any remaining funds in the trust were paid to the State "up to an amount equal to the total medical assistance paid on behalf of the individual." 42 U.S.C.A. 1396p(d)(4)(A).

The Federal Medicaid statute, 42 U.S.C.A. 1396p(d)(1), counts for purposes of "an individual's eligibility for, or amount of, benefits under a State plan," assets placed in a "trust established by such individual." However, subsection (d)(1) recognizes an exception for supplemental needs trusts created pursuant to 42 U.S.C.A. 1396p(d)(4). Section (d)(4) defines two different types of trusts that may be created for a disabled person. These trusts are described in subsections (A) and (B):

(4) This subsection shall not apply to any of the following trusts:


(A) A trust containing the assets of an individual under age 65 who is disabled . . . and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.


(B) A trust established in a State for the benefit of an individual if--


(i) the trust is composed only of pension, Social Security, and other income to the individual (and accumulated income in the trust),


(ii) the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter, and


(iii) the State makes medical assistance available to individuals described in section 1396a(a)(10)(A)(ii)(V) of this title, but does not make such assistance available to individuals for nursing facility services under section 1396a(a)(10)(C) of this title.


[42 U.S.C.A. 1396p(d)(4).]

Section (B), which permits Miller trusts,2 does not apply in New Jersey because New Jersey has adopted the medically needy nursing home Medicaid program. See N.J.S.A. 30:4D-3i(8). Only section (A) applies to New Jersey's Medicaid program.

Cozze contended before the Family Part judge, and Mazyk conceded, that a New Jersey court cannot order the Trustee of the Trust to make disbursements from the Trust for unpaid child support.

After analyzing the restrictions of the federal Medicaid statute and reviewing the record in light of the contentions advanced on appeal, we are satisfied the trial court's conclusions were correct and should be affirmed.


The record discloses the following facts and procedural history.

Mazyk and Cozze had a brief relationship which resulted in the birth of Angelina Mazyk-Cozze on September 14, 2007. Cozze's paternity of Angelina was established by court order after genetic testing.

Prior to Angelina's birth, on July 21, 2007, Cozze was in a motor vehicle accident which resulted in his permanent brain injury. A lawsuit was filed on his behalf and a settlement of over $1,800,000 was reached in his favor. In November 2010, Cozze established, for his own benefit, the Trust with the net amount of the settlement, which he asserts was approximately $1,200,000.

On May 10, 2011, Mazyk filed a complaint for child support indicating that Cozze received a settlement award from his motor vehicle accident. She also applied and was found eligible for Temporary Assistance to Needy Families (TANF) on May 17, 2011. Shortly thereafter, counsel for the Division of Social Services (Division) requested that the court amend Mazyk's complaint to include the Division as an interested party pursuant to an assignment of rights signed by Mazyk in accordance with N.J.A.C. 10:90-16.2(b).

In a comprehensive written opinion, Judge Robert B. Reed noted that parents have a moral obligation and a legal duty to support their child. He further determined that the calculation of child support is governed by Rule 5:6A and its appendices. He referenced Appendix IX-B, which states under the heading "Gross Income," that gross income includes annuities or an interest in a trust, distribution from government plans, including social security, personal injury awards, and disability grants or payments (including social security disability). See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2566-67 (2013).

Clearly, if Cozze had not established the Trust, but had retained the net proceeds of the settlement, that amount would be available to pay child support. However, Cozze elected to establish the Trust for his own benefit. The judge noted that the Trust documents provide that the Trustee has absolute discretion to make distributions for Cozze's needs. However, the judge further stated, distributions "can be used to pay for vacations, technology, cable television etc. and aside from the fact that it is inequitable to allow [Cozze] to partake in such luxuries while the parties' daughter is supported by the State, nothing prevents a determination that '[Cozze's] Special Needs' might include support for his daughter."

The judge recognized, and we agree, that there is no case law in New Jersey directly addressing the issue before us. However, the judge referenced two opinions in our sister states. In the first, Meyers v. Meyers, 2006-Ohio-5360 (Ohio Ct. App. 2006), the primary issue was whether distributions from a special needs trust satisfied the broad definition of gross income stated in the Ohio Rules of Court for child support computation, even though the distributions were not made directly to the mother who established the trust. The court determined that trust income, social security benefits, and other non-means tested disability benefits are expressly included as income for purpose of calculating child support.

Secondly, the judge addressed Mencer v. Ruch, 928 A. 2nd 294 (Pa. Super. Ct. 2007). There, the court was called upon to determine whether income to a father from a supplemental needs trust to pay for his general living expenses and luxuries should be counted as income for purposes of calculating child support. The court determined that the starting point for calculation of child support obligations is a determination of each party's income available for support, including income generated by the trust. The court noted that "[s]imply put, the fact that Father has no ability to control his receipt of funds is not pertinent to whether the payments made for his benefit are income." Id. at 298. Thus, the court concluded that the payments from the trust were a financial resource that should have been included in the calculation of the father's child support obligation. Ibid.

In Judge Reed's decision, he set forth his findings of fact and conclusions of law and stated that:

The Court's determination is that defendant's trust income and SSD shall be considered income for inclusion in calculations to determine defendant's child support obligations. Therefore, the Court orders the defendant and/or the trust to provide a trust accounting (of annual income only) to the Court in order to determine income to be included in defendant's child support obligations. Once provided with such, the matter will be referred to a Hearing Officer to run child support guidelines.


It is from that decision that Cozze appeals.


Cozze argues the trial court erred as a matter of law because both federal and New Jersey law provide that a self settled special needs trust cannot be used to pay for support of another.

Before we examine Cozze's contentions, we set forth our standard of review. "The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, due to the family courts' special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. We grant substantial deference to a trial court's findings of fact, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

"The trial court has substantial discretion in making a child support award. . . . If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001) (citations and quotations omitted).

Moreover, the trial court should consider all of the movant's assets, as

[i]t has long been the law of this State that courts have the authority to consider the assets and other financial circumstances of the parties in addition to their income when determining child support. The Legislature has specifically expressed its intent in that regard through adoption of N.J.S.A. 2A:34-23a. . . . [It is] clear [that] child support [is] based upon total family resources and all parents' resources should be considered available for support of the children.


[Connell v. Connell, 313 N.J. Super. 426, 432 (App. Div. 1998) (citing Cleveland v. Cleveland, 249 N.J. Super. 96, 101-02 (App. Div. 1991)).]


Here, in order to take advantage of certain Medicaid benefits, Cozze voluntarily gave up the settlement assets by creating the self settled Trust. The trial judge recognized that those assets are not available to satisfy Cozze's child support obligations. However, the distribution of those assets is a resource which the trial judge appropriately considered available for support.

We find Cozze's remaining contentions concerning res judicata and collateral estoppel to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

The decision of the trial judge, that Cozze's Trust income and SSD shall be considered income for inclusion in calculations to determine his child support obligations, is affirmed.




1 In this opinion, the terms "special needs trust" and "supplemental needs trust" are used interchangeably. They are also known as "OBRA '93 trusts," named after the Omnibus Budget Reconciliation Act of 1993 (OBRA '93), which permitted the creation of special needs trusts as a form of Medicaid planning. See 42 U.S.C.A. 1396p(d)(4)(A); N.J.S.A. 3B:11-37a.




2 Named after Miller v. Ibarra, 746 F. Supp. 19 (D. Colo. 1990), Miller trusts permit individuals to qualify for Medicaid benefits in states that have income caps for Medicaid eligibility. Individuals in those states can assign income to a Miller trust in order to avoid having the income counted against the cap. See L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 484-89 (1995) (discussing this State's then-existing income cap program and the use of Miller trusts). Once New Jersey ceased to use the income cap approach, and instead adopted the medically needy Medicaid program, Division of Medical Assistance and Health Services prohibited the use of Miller trusts to shelter income. See N.J.A.C. 10:71-4.11(h).




NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal Nos. 6A 2012 K17 and 9A 2012 K81. Ryan A. Dornish, attorney for appellant. Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant Richard Falk appeals from a May 14, 2013 Law Division order denying consolidated petitions for post-conviction relief (PCR), seeking to vacate his 1981 and 1988 convictions for driving while intoxicated (DWI). Following our  consideration of the arguments in light of the record and applicable law, we affirm.

In November 2011, Falk was charged with a fourth DWI offense in Pohatcong. His earlier convictions were in 1981 from Kingwood, 1988 from Milford, and 1992 from North Hunterdon. Based on the earlier convictions, Falk is subject to the enhanced sentence mandated by N.J.S.A. 39:4-50(a)(3) for a third or subsequent conviction, of a minimum 180-day period of incarceration, ten-year license suspension, and appropriate monetary fines and penalties. This matter is still pending.

In April 2012, Falk filed petitions for post-conviction relief (PCR) in the Kingwood Township Municipal Court and in the Joint Court of the Delaware Valley, seeking relief pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), that the convictions not be considered for purposes of enhancing a custodial term on the 2011 offense. Falk subpoenaed Kingwood and Milford for court transcripts, police reports, or any documentation evidencing whether he had waived his right to counsel. He obtained, and submitted with each petition, a certified disposition indicating that all records of the respective municipal court proceeding had been destroyed, but providing the dates of the violations and the guilty plea. The dispositions indicated for attorney's  name, either "None" or "No Attorney on record indicated in docket book." Neither disposition indicated whether Falk had been advised or had waived the right to counsel.

In support of his petitions, Falk provided certifications in which he stated he was indigent at the time he pled guilty, unrepresented, and not advised of his right to counsel. He acknowledged that he was represented by counsel when he pled guilty to a third DWI offense in 1992.

Each municipal judge denied Falk's applications as time-barred by Rule 7:10-2(b)(2) and declined to order that the 1981 and 1988 guilty pleas not be used for the purposes of imposing an enhanced sentence. In August 2012, Falk filed separate appeals in the Law Division raising the same claims as presented in municipal court. The Law Division entered an order consolidating the appeals. In its de novo review, the Law Division judge denied PCR relief on the record and issued a comprehensive, written opinion that same date.

The Law Division judge concluded that Falk failed to demonstrate excusable neglect as required to relax the five-year deadline set forth in Rule 7:10-2. The judge found that the pertinent issue in the 1981 and 1988 proceedings was "not whether [Falk] was represented, but whether he was informed of his right to counsel." The judge concluded Falk failed to  produce evidence that he had not been advised of that right, and that the late filing of the PCR petitions, thirty-one and twenty-three years after the entry of the judgments of conviction, coupled with the unavailability of court records from the 1981 and 1988 proceedings, significantly prejudiced the State's ability to prosecute the cases. The judge also concluded Falk's failure to raise these issues while he was represented by counsel during the 1992 DWI proceeding undercut his claim of excusable neglect. Finally, the judge determined even if Falk had met his burden of showing excusable neglect, he failed to establish that the outcome would have been any different if he had counsel as he neither proclaimed his innocence with respect to the DWIs, nor offered any defense in his certifications.

On appeal, defendant raises the same arguments as advanced in the Law Division.

Our role in this appeal is limited in that we will "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). In that regard, our task is limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the  record." State v. Johnson, 42 N.J. 146, 162 (1964). However, our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

In Laurick, the Court held that, absent a waiver of the right to counsel, an uncounseled DWI guilty plea cannot be used to enhance the period of incarceration for future DWI convictions and that "the actual period of incarceration imposed may not exceed that for any counseled DWI convictions." Laurick, supra, 120 N.J. at 16. That holding was reaffirmed in State v. Hrycak, 184 N.J. 351 (2005).

Hrycak was decided after doubts were expressed concerning the continued viability of Laurick following a change in some of the United States Supreme Court jurisprudence cited in Laurick. Hrycak, supra, 184 N.J. at 358-63. Our Supreme Court adhered to its holding in Laurick as a matter of New Jersey law. Id. at 362-63.

We have identified the proofs required to establish entitlement to the step-down sentence for a second or subsequent DWI:


1. Indigent defendants must establish that they were not given notice of their right to counsel and advised that counsel would be provided for them if they could not afford one.

2. Non-indigent defendants must establish that they were not advised of their right to counsel and that they were unaware of such

right at the time they entered the uncounseled pleas.

3. Defendants who establish that they were not adequately noticed of their right to counsel must then demonstrate that if they had been represented by counsel, they had a defense to the DWI charge and the outcome would, in all likelihood, have been different. Police reports, witness statements, insurance investigations and the like may be used to submit proofs that the outcome would have been different if the defendant had the benefit of counsel before pleading guilty.

[State v. Schadewald, 400 N.J. Super. 350, 354-55 (App. Div. 2007).]


A defendant's application for PCR relief under Laurick must meet the timeliness requirement of Rule 7:10-2(b)(2), requiring a petition for PCR in municipal court be filed no more than five years after entry of the judgment of conviction. A court may relax the five-year bar if a defendant demonstrates "excusable neglect." R. 7:10-2(b)(2); State v. Mitchell, 126 N.J. 565, 576 (1992); State v. Weil, 421 N.J. Super. 121, 128 (App. Div. 2011); State v. Bringhurst, 401 N.J. Super. 421, 432 (App. Div. 2008). In Bringhurst, supra, 401 N.J. Super. at 433, we have warned that the time bar in Laurickcases should not be mechanistically applied. A defendant bears the burden of demonstrating entitlement to relief. Hrycak, supra, 184 N.J. at 363.

Here, Falk fails to establish excusable neglect for filing the petitions thirty-one and twenty-three years after his prior convictions. Though he was represented by counsel when he pled guilty to the 1992 DWI offense, Falk did not raise these PCR claims at that time. We find unavailing his present contention that his 1992 attorney did not advise him of his rights to file for PCR or advise him of the step-down provisions of the law. A defendant cannot assert excusable neglect simply because he received inaccurate or incomplete advice from his defense counsel. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013).

On September 19, 2013, the North Hunterdon Municipal Court judge vacated the 1992 DWI conviction and dismissed the complaint. 

The certifications provided with the petitions also fail to establish that Falk had not been advised of his rights to an attorney and did not offer a meritorious defense. Schadewald instructs that defendants "must establish" that they were not advised of their right to counsel at the time of the uncounseled pleas. Schadewald, supra, 400 N.J. Super. at 354. Here, defendant's bald assertions fail to sustain his burden of proof.


I hereby certify that the foregoing is a true copy of the original on file in my office.


bottom of page