It is rarely a good sign when App Div says “this is the latest chapter in his effort to make life difficult for his ex-wife”

SUPERIOR COURT OF NEW JERSEY

 

APPELLATE DIVISION

 

DOCKET NO. A-4469-07T34469-07T3

 

 

 

 

 

 

 

MELANIE MILLER f/k/a

 

TAFARO,

 

 

 

Plaintiff-Respondent,

 

 

 

v.

 

 

 

STEPHEN TAFARO,

 

 

 

Defendant-Appellant.

 

______________________________________

 

Argued April 22, 2009 – Decided

 

 

 

Before Judges Rodr�guez and Espinosa.

 

 

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-339-03.

 

 

 

William J. Courtney argued the cause for appellant (Law Offices of William J. Courtney, L.L.C., attorneys; Mr. Courtney, of counsel; Laurie J. Bice, on the brief).

 

 

 

June L. Pellegrino argued the cause for respondent (Lee B. Roth Law Offices, attorneys; Ms. Pellegrino, on the brief).

 

 

 

PER CURIAM

 

Defendant Stephen Tafaro appeals from the March 20, 2008 post-divorce judgment order; which among other things, directed him to pay seventy-five percent of the college costs, including tuition and room and board, for his two children. The same order required him to reimburse plaintiff, Melanie Miller, $8,131.33, representing his share of the older child’s expenses for the Fall 2007 enrollment at Rutgers University and $7,142.55 for the Spring 2008 semester. Tafaro also appeals from the May 2, 2008 order, denying his motion for reconsideration. We affirm.

 

These are the salient facts. Tafaro is a pediatric dentist. Miller and Tafaro were divorced in June 2004, after seventeen years of marriage. The dual judgment of divorce included a Property Settlement Agreement (PSA), which provided for joint legal custody of the two children (a son now nineteen years old and a daughter now eighteen years old) and the appointment of a parent coordinator. The PSA also addressed the college costs for the children by providing:

 

The parties recognize that each may have an obligation to assist the minor children of the marriage financially regarding their future college costs. In light of the children’s ages, the parties agree to address the issues of college costs at the time they are incurred. The parties agree that the choice of college will be based upon the input of both parents as well as the child’s wishes, so long as the school preferred by the child provides a curriculum and an environment that is consistent with the child’s ability, aptitude and goals. The parents shall not unreasonably withhold consent on the selection thereof.

 

 

 

The Defendant will continue to pay child support so long as the children remain enrolled as full-time students for a period not to exceed four years after graduation from high school. The child support and education costs will be reviewed and adjusted as may be necessary at the time of each child’s enrollment in college, based on the issues of Newburgh v. Arrigo and the law at that time.

 

 

 

[emphasis added]

 

 

 

Despite the existence of a comprehensive PSA, there have been many post-judgment disputes. All of these have been precipitated by Tafaro’s refusal to abide by the terms of the PSA and/or subsequent court orders, or by his unremitting belligerence with Miller. In this course of action, Tafaro has not spared his children’s mental well-being. This appeal is the latest chapter in his effort to make life difficult for his ex-wife, his children and the parenting coordinators.

 

Pursuant to the PSA, Judge Stephen B. Rubin appointed John W. Thatcher, Esq., as parent coordinator. Shortly thereafter, there was a disruption in the father/children relationship. In support of her request for payment of a proportionate share of college expenses from Tafaro, Miller certified that “[p]rior to and ever since the entry of the Judgment of Divorce, [Tafaro's] relationship among himself, [Miller] and [their] two children has been, to say the least, extremely strained.” By way of example, Miller discusses an incident that occurred on September 21, 2004, in which Tafaro “became completely out-of-control with the children.”

 

Upon picking up the children for parenting time, Tafaro informed them that he would not be returning them home that evening as he was obligated to do. The children became upset and the daughter attempted to get out of the moving car. Once at Tafaro’s home, the children refused to go inside and franticly called Miller to come and pick them up. Miller states that as the children approached her car, Tafaro began to yell that she was trying to kidnap the children. Tafaro proceeded to call 9-1-1, even after having been told by the parenting coordinator not to call the police in such situations. The police arrived and eventually the children returned home with Miller.

 

The following day, Tafaro informed Miller that as punishment for the children’s behavior they were to remove all of their belongings from his house by the end of their next weekend with him. Tafaro further told the children that they could only eat his food after asking and receiving permission. Miller states that during that weekend, things became so volatile among Tafaro and the children that the son threatened to commit suicide if he had to spend any more time with his father.

 

Following this incident, parent coordinator Thatcher wrote a letter to Judge Rubin in which he concluded:

 

Under the circumstances, I do not believe the children should be subjected to their father’s brutality. In my opinion, it is absolutely not in their best interest, and at the same time could lead to frightening circumstances. I do not believe [the son's] threat of suicide was gratuitous. It must be taken seriously. I believe that joint custody should be terminated and that Ms. Miller be given full custody of the children on a temporary basis pending further order f the Court. Parenting time/visitation with Dr. Tafaro should be suspended and should only occur in the future under supervision. I believe it is clear that Dr. Tafaro needs psychological help and that the privileges of parenting should not be reinstated until Dr. Tafaro has proven his ability to the Court through a professional.

 

 

 

Miller subsequently filed an order to show cause. Judge Julie M. Marino suspended Tafaro’s parenting time on a temporary basis. On November 3, 2004, Judge Rubin continued the suspension of Tafaro’s visitation rights, but permitted parenting time at the initiation of the children. The order also stated that Miller was to have:

 

[F]inal authority in decisions regarding schooling, medical/psychological needs and other major decisions affecting their children. However, [Miller] shall notify and make best efforts to confer with [Tafaro], joint legal custodian, in all such decisions. Any counseling is to be done either by a psychologist or a psychiatrist. [Tafaro] shall not have direct contact with any such person selected by [Miller].

 

 

 

Tafaro moved for reconsideration of the November 3, 2004 order. Judge Rubin denied the motion to reconsider and appointed a new parent coordinator, Dr. William Campagna, Ph.D. Further, Tafaro was ordered to bring his child support current and to reimburse Miller for his share of the cost of the parent coordinator. Tafaro appealed the order denying reconsideration. We affirmed and denied Tafaro’s request for a plenary hearing. Tafaro v. Tafaro, No. A-4402-04T1 (App. Div. July 13, 2006).

 

Prior to the divorce, Miller had obtained a final restraining order (FRO) against Tafaro pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A.to -35. The FRO was amended by Judge Rubin on July 13, 2005 to prohibit Tafaro from contacting the children’s therapist. 2C:25-17

 

Tafaro moved to have Dr. Campagna removed as parent coordinator; to vacate the judgment for arrears against him; to get a credit to his child support account; and to revise the amended FRO to eliminate the restraints preventing him from contacting the therapist. Miller cross-moved, seeking enforcement of prior court orders concerning payment of unreimbursed medical expenses and counseling fees for the children. Judge Rubin permitted Miller to execute on Tafaro’s assets to satisfy the arrears judgment and denied Tafaro’s other requests. Tafaro appealed. We affirmed. Tafaro v. Tafaro, No. A-1189-05T1 (App. Div. Aug. 16, 2006). We ordered Tafaro to pay $5,000 in counsel fees, plus costs.

 

Tafaro then moved to compel Miller to comply with the parenting time order entered prior to the divorce. The judge denied Tafaro’s request to enforce the parenting time order, finding that it was abrogated by the November 3, 2004 order. Tafaro’s motion to reconsider was denied.

 

Charles J. Most, Psy.D was appointed as the new parent coordinator on March 30, 2007. In a letter to the parties dated July 6, 2007, Dr. Most discussed a visitation plan because Tafaro had had no contact with his children in thirty-three months. Dr. Most recommended:

 

[I]n order for this to be successful the following must take place: Dr. Tafaro should involve himself in at least twice weekly psychotherapy with an analytically trained clinician of my recommendation. This should take place for at least six months prior to a further recommendation of a family psychotherapist for father and children, also of my recommendation. This recommendation is put forth in order to lower the anxiety level within Dr. Tafaro so that he can better manage his affect. Upon completion of the groundwork needed for visitation, a schedule will be recommended.

 

 

 

A few days later, Tafaro telephoned Dr. Most, indicating that he was not satisfied with the recommendations and was going to arrange a visit with the children on July 31, 2007. By letter dated July 18, 2007, Dr. Most stated that he “was not able to fully discuss this matter and find resolution with Dr. Tafaro.” Dr. Most further noted that he made phone contact with the children, who informed him that they did not want to see their father and feared for their safety. Dr. Most concluded the letter, recommending against the July 31, 2007 visit until further discussions could be arranged.

 

On February 19, 2008, Miller moved for reimbursement from Tafaro of his proportionate share of the expenses associated with the college costs of their children.

 

In support of her motion for apportionment of college costs, Miller certifies that she made numerous attempts to advise Tafaro of the children’s intent to attend college and the names of the colleges being considered. According to Miller, all such attempts were rejected by Tafaro. Tafaro was informed of the son’s SAT scores and his choice of Rutgers University. Upon the son’s enrollment at Rutgers, Miller paid $8,520.40 for tuition and room and board for the Fall 2007 semester. Additional expenses included: assistance in setting up the dorm room, $690.33; purchase of text books, $350; and incidentals, $50 per week or $1,281.04 for the semester. The total amount Miller expended for the Fall 2007 semester was $10,841.77. The Spring 2008 semester resulted in similar expenses, totaling $9,523.40. These costs took into consideration a $3,750 interest-free loan for the 2007-2008 school year.

 

According to Miller, she attempted to inform Tafaro of the daughter’s intent to attend college Fall 2008. There was no cooperation from Tafaro. Miller sent a letter to Tafaro, via certified mail, advising him of the daughter’s college choices. The letter was returned to Miller after three failed attempts at delivery were made. The daughter agreed to meet with her father at his home on January 18, 2008, in order to discuss her options for college. Miller states that after twenty minutes the daughter ran out of the house in tears.

 

In Tafaro’s responding certification he “totally disagrees with [Miller's] interpretation of past events . . . .” Tafaro alleges that it was Miller who refused to verbally communicate with him between March 2001 and December 2006. In regard to the son’s education, Tafaro contends that he tried to be involved. He attended college night at the son’s high school along with Miller and the children. During his time there, Tafaro claims that both children refused to interact with him. Tafaro asked his son to call him on the phone so they could arrange a meeting. However, the son never followed up with a call. In August 2006, Miller notified Tafaro that she and the son would be attending an open house at American University. Tafaro informed Miller in writing that he would like to attend with them. However, Miller wrote back telling him that neither she nor the son were ready to spend time with him.

 

In March 2007, at Miller’s request, the son telephoned Tafaro. Tafaro invited his son to his home for dinner for a discussion about college. The son accepted the invitation. Tafaro states, however, that the night before their meeting, his son left a message on Tafaro’s cell phone stating that he would not meet at Tafaro’s home as he found it to be traumatic. The son suggested they meet at a caf�. Tafaro found this inappropriate, rejecting the son’s suggestion. The son, via email, then offered to speak with Tafaro at his office because the presence of Tafaro’s mother, who lived with Tafaro, offended him. Tafaro found his son’s email to imply that he would harm Tafaro and his mother if they were to meet. Thus, Tafaro felt it best to avoid any contact with his son.

 

Judge Fred H. Kumpf set Tafaro’s share of college costs at seventy-five percent. The judge went through the twelve Newburgh factors. With respect to the child’s relationship with the paying parent, a major point of Tafaro’s objection, the judge found:

 

Based upon the parties’ discussion of the applicable factors of Newburgh, it is clear that both parties should be responsible for contributing towards [the children's] college expenses. The only factor that points against such a finding is that regarding the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance. While it appears that the children do not have a relationship with [Tafaro], this is but one of twelve factors to be considered and alone is not dispositive of a finding that [Tafaro] should be required to contribute to the college expenses of the parties’ children. Furthermore, [Tafaro's] reliance on Gac v. Gac, 186 N.J. 535 (2006), is misplaced. The decision found that a father did not have to contribute to pay for his daughter’s college loans where there was no relationship between the father and the daughter, where the father paid child support while the daughter was in college, and where the daughter sought contribution after she had already graduated from college. The court found that a parent or child seeking contribution for college should seek an order for relief before such expenses are incurred. The failure to seek such an application should weigh heavily against the grant of a future application. Id. at 546-547.

 

 

 

Weighing all factors here involved, the parties shall be responsible for contributing their proportionate share of the combined income towards college expenses. Based on the information provided, [Miller] has a net income of $79,558 and [Tafaro] has a net income of $239,602. The total combined income of the parties is $319,160. Therefore, [Tafaro's] proportionate share of the parties’ total income is 75%.

 

With respect to the award of $1,762.50 to Miller, the judge stated:

 

With regard to bad faith, [Tafaro] has refused to cooperate with regard to establishing the parties’ respective responsibility to contribute to the college expenses. These actions are clearly evidence of bad faith on the part of defendant. Therefore, [Tafaro] shall be responsible to reimburse [Miller] for counsel fees and costs associated with filing of this motion. [Tafaro] shall be responsible to reimburse [Miller] for counsel fees and costs associated with filing this motion in the amount of $1,762.50 within 20 days.

 

 

 

Tafaro argues on appeal that Judge Kumpf erred in ordering him to pay a portion of the children’s college costs. He argues that: “the clear language of the [PSA] was not given the proper weight” and the judge “failed to properly apply the Newburgh factors to this case or to order a plenary hearing . . . .” Tafaro also contends that the judge “abused his discretion in ordering [him] to pay seventy-five percent of all college costs.” He further contends that “the court erred in not reducing [his] child support obligation and by requiring him to pay seventy-five percent of all college expenses.” Finally, Tafaro contends that the judge erred in awarding attorney’s fees to Miller. We disagree.

 

From our careful review of the record, we hold that the judge properly applied the governing legal principles. Moreover, the findings by the judge are supported by the evidence presented in support and in opposition of the motion. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). It is settled that because of the Family Part’s expertise in family matters, we must defer to its findings of facts. Id. at 413. We do so here.

 

0x08 graphic
Affirmed.

 

Newburgh v. Arrigo, 88 N.J. 529 (1982).

 

 

 

 

 

 

 

(continued)

 

 

 

(continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13

 

A-4469-07T3

Published in: on May 13, 2009 at 9:17 pm  Leave a Comment  
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Preventing a mess is easier than cleaning up a mess

When I  tell people to get an attorney, it is because I am trying to save them money and not spend more.  I know that may not sound right, but I always try to use examples to illustrate my point.  Here is a case that came into my office last night.

Mother hardly gets child support from the Father.  Child is 17 and very troublesome.  Child runs off to a friends house where anything goes.  The Mother of the friend files an action for custody.  Both mothers agree to share custody back in March.  Now the Mother of the friend comes after the other Mother for child support and wins!  Worst yet, the child support is probably three times more than what it should be because it doesn’t account for the other Mother’s income as well as any child support that the Father should be paying. 

So, she hands me this mess and says get my son back. I tell her I’d be glad to help her but it’ll cost her much more (3 times+) than what it would  have cost if she hired me for the first court appearance.  Now, I have to fight to undo the consent order just to get my foot in the door for a custody hearing.  On top of that, I would be fighting against a status quo that has been established for several  months now.  

Her reason for not calling an attorney is that she called legal aid and they told her that she did not need an attorney.  When she called them back after the second hearing, they advised her that she did not qualify for legal aid.  Thus, I think she misunderstood what legal aid told her. 

Bottom line, you should speak to an attorney in person if you are facing any legal dispute.  If the attorney says you don’t need one, ask for a detailed explanation.  For example, if a client comes to me with a $2000 dispute in small claims court, my fee could be $2000 or only $1000.  Either way, it doesn’t make much sense to hire me.   However, I would have no problem with the client coming into my office to find that out as there may be other issues besides just dollars that would make more sense for the client to hire an attorney.  With a free consultation, the only thing you spent is a little time.

Published in: on May 12, 2009 at 10:28 am  Leave a Comment  
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Is your child support calculated properly?

There are so many people that come into my office that have wrong child support calculations.  Quite often, the person that is paying is paying way too much.  Most of the time, this is because they did not have an attorney and as a result, no one bothered to make sure the child support was done right the first time.  Worst yet, you may never be able to get any of  that money back.  For example, I had one new client come into my office last week that was overpaying about $50 per week for years!

While all of the above sounds great if you are the one receiving child support, the most common issue I see on the other side is that there is nothing in place to make sure that the support actually gets paid.  Again, this is usually because there was no attorney to help the person in the begining.

Paying an attorney is never fun.  However, child support is (usually) a  relatively simple matter to handle.  Thus, it is good investment to get an attorney the first time to make sure everything is done right.  It’ll pay off in the future.

With offices in Toms River, Princeton, New Brunswick and Eatontown, my law offices are easy to reach from anywhere in New Jersey.  My initial consultations are always free so it will cost you nothing to see if your child support is calculated properly and/or set up properly.   I practice in every court in this state, so from Newark to Atlantic City, Freehold to Trenton, you only need to call one number for an attorney that will fight for you.

Published in: on May 10, 2009 at 10:22 pm  Leave a Comment  
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NJ courts allow a brief hiatus during college

Comment: My 20 yr old son was attending the University of Central Florida part time, and has now moved back to New Jersey, resides by himself and seeking employment. He is not sure about what he wants to do for the future and this hiatus could be months. I have filed for emancipation. Do you think New Jersey will emancipate him?

Response:  First, I hate to beat a dead horse, but without an attorney, your chances of success are always less.  Of course, an attorney doesn’t mean you are assured anything as one side has to lose a contested case.   Second, courts allow a brief hiatus during college.  Thus, a lot will depend on the facts of the case and how it is argued.  I’ve been down this road before and sometimes you win right away and sometimes it is a longer fight as the promise to go back to college can often be a lie.

Published in: on May 7, 2009 at 1:24 pm  Leave a Comment  
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Act now, before its too late

In New Jersey, you generally have to act now if you want to modify your child support.  It doesn’t matter if you pay child support or receive it.  However, I usually see more people that pay child support waiting.  Trying to come back a few years later only after your arrears have built up is not a good idea.  Unless you can get the child emancipated back to a certain date that wipes out arrears, it can be impossible to wipe out child support arrears.  Thus, if you file a motion now to reduce your child support, you will avoid the issue of arrears all together.

Call me to discuss this further.

Published in: on May 6, 2009 at 8:17 pm  Leave a Comment  
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Employment is (obviously) a changed circumstance

 

KWASHEDDA ATES,

 

Plaintiff-Appellant,

 

v.

 

JOHN ATKINS (aka AIKEN),

 

Defendant-Respondent.

 

___________________________________________________

 

 

Submitted March 31, 2009 – Decided

 

Before Judges Skillman and Grall.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-906-07.

 

Northeast New Jersey Legal Services, attorneys for appellant (Ellen Jo Gold and Marina Ginzburg, of counsel and on the brief).

 

Respondent has not filed a brief.

 

PER CURIAM

Plaintiff appeals from a June 4, 2008 order denying her motion for an increase in child support and a July 18, 2008 order denying her motion for reconsideration of the denial.

The parties, who are not married, have two children. The parties are not currently residing together. By order dated March 3, 2008, the trial court imposed an obligation upon defendant to pay $105 per week to plaintiff for child support plus 53% of each of the children’s medical expenses in excess of $250. The order states that the amount of defendant’s child support obligation was based on $320 per week “imputed income.”

On May 6, 2008, plaintiff filed a motion for an increase in child support. Plaintiff alleged that defendant was receiving unemployment compensation benefits when his support obligation was established but that he subsequently obtained new employment. This allegation was supported by court records indicating that a wage execution was in effect on the return date of plaintiff’s motion. In addition, plaintiff noted that defendant was present in court dressed in his new work uniform.

Defendant did not disclose the amount of his compensation in his new employment. Consequently, the trial court did not have any basis upon which to compare defendant’s income at the time of the motion for an increase in child support with his imputed income at the time his support obligation was established.

The trial court denied defendant’s motion for an increase in child support on the ground that she had not made a prima facie showing of changed circumstances.

Plaintiff filed a motion for reconsideration. In support of her motion, plaintiff filed a certification which stated in part: “I know the Defendant very well, having been with him for over 5 years. He never made as little as the $8.00 per hour that the Court imputed to him [in establishing his $105 per week child support obligation].” The trial court denied this motion by order entered July 18, 2008 without opinion.

A party seeking a modification of child support must make a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Before a court will order the supporting parent to disclose financial information, a party seeking an increase in child support must make a prima facie showing of changed circumstances. Ibid. An increase or decrease in the supporting parent’s income constitutes a changed circumstance that may warrant a modification of his or her child support obligation. Id. at 151.

We conclude that a change in defendant’s circumstances from being unemployed when his child support obligation was established to being employed when plaintiff moved for an increase in child support presented a sufficient prima facie showing of changed circumstances to require defendant to provide discovery regarding his current income. Id. at 157. If that discovery indicates that defendant’s current income is sufficiently greater than the income imputed to him when his child support obligation was established, plaintiff may be entitled, depending on all other relevant circumstances, to an increase in child support.

Accordingly, the June 4, 2008 order denying defendant’s motion for an increase in child support is reversed, and the case is remanded to the trial court for further proceedings in conformity with this opinion.

 

 

 

April 16, 2009

 

Published in: on April 16, 2009 at 8:53 pm  Leave a Comment  
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Court holds that $7500 a month in child support is not excessive!

 

 

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4270-07T3

 

OLGA CADAVID, f/k/a OLGA NIETO,

 

Plaintiff-Respondent,

 

v.

 

ZOILO NIETO,

 

Defendant-Appellant.

 

________________________________

 

 

Argued March 23, 2009 – Decided

 

Before Judges Carchman and Sabatino.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2182-00.

 

Francine Del Vescovo argued the cause for appellant (Lomberg & Del Vescovo, LLC, attorneys; Ms. Del Vescovo and Janet S. Del Gaizo, on the brief).

 

Patricia A. Ferraro argued the cause for respondent (Rose & DeFuccio, attorneys; Ms. Ferraro, on the brief).

 

PER CURIAM

 

Defendant Zoilo Nieto (“the father”) appeals a March 25, 2008 order of the Family Part requiring him to pay plaintiff Olga Cadavid, formerly known as Olga Nieto (“the mother”), the sum of $8,839 in monthly child support for the parties’ three minor children. We affirm that order, with modifications that are mainly arithmetic in nature.

The parties are both immigrants from Colombia. The father, who came to the United States in 1982, is the successful founder and president of eight schools that teach English as a second language. The schools are located in New Jersey, New York, Florida, and Canada. Through limited liability companies unrelated to the schools, the father also owns interests in several commercial properties in New Jersey and Florida. In a June 2007 loan application, the father valued his various business interests at $8 million and the fair market value of his real estate holdings at $5.2 million. The Family Part calculated the father’s annual income for purposes of child support at approximately $2 million annually, a figure which is uncontested on appeal.

The father presently owns four residences: a four-bedroom home in Demarest; a two-bedroom condominium in Edgewater; the former marital home in Ridgefield; and a condominium in Miami Beach, Florida. The Demarest home, where the father currently resides and where he enjoys parenting time with the children, includes seven bathrooms, a $15,000 tree house, and a private movie theater.

The mother emigrated to the United States in January 1997. Soon thereafter, she married the father on March 25, 1997. A full-time homemaker, the mother obtained an associate’s degree from Bergen County Community College in 2006, where she majored in early childhood development.

The parties are the parents of three sons: an eldest son born in January 1998; a middle son born in February 1999; and a youngest son, who was born in May 2001 after the parties had already divorced. The parties have no children from other relationships.

The parties were divorced on May 10, 2000, entering into a Property Settlement Agreement (“PSA”). Among other things, the PSA provided that the mother would have primary residential custody of the three children, with substantial parenting time awarded to the father. The PSA also provided that the father would pay the mother $100,000 annually in combined support. That figure included $20,000 in limited-duration alimony payable for seven years; child support; certain educational expenses of the mother; and various roof expenses related to the marital home, where the mother and the sons then continued to reside. The father also paid for medical insurance, private school tuition, and other expenses of the children. After the third son was born, the parties amended the PSA in December 2003 that, among other things, increased the monthly child support amount by $300.

Prior to the scheduled May 2007 expiration of her alimony, the mother filed in March 2007, a motion to modify child support. As part of her motion papers, the mother stated her intention to move with the three sons out of the marital home in Ridgefield into a house in Warren owned by her present fiancé. The father unsuccessfully opposed the sons’ relocation in proceedings in the Family Part and an ensuing emergent application to this court.1 Consequently, the mother and the three sons moved to Warren in August 2007, where they continue to reside in a four-bedroom home along with the mother’s fiancé and his own teenage son.

Meanwhile, the parties’ child support dispute was litigated in the Family Part. The court conducted five intermittent days of plenary hearings in November 2007, December 2007, and January 2008. The court heard the testimony of both parties and from expert accountants for each side. The court also considered numerous financial exhibits, including the parties’ respective case information statements (“CIS forms”) listing their financial resources and expenses.

After considering the proofs, the motion judge rendered a detailed oral decision on March 25, 2008. In her decision, the judge estimated the husband’s annual income at about $2 million. Given that high level of income, the judge recognized that the case was outside of the published child support guidelines in Appendix IX-A of the Court Rules. The judge declined to impute any net earnings to the mother, in light of the mother’s limited earnings capacity and her homemaker responsibilities as the parent of primary residence. The judge acknowledged the father’s substantial parenting time, which is about thirty-six percent of the children’s overnights. The judge also made numerous discrete reductions to the itemized personal living expenses for the children presented on Schedule C of the mother’s CIS form, decreasing the total of those claimed sums by more than half.

Based upon that analysis, the trial court awarded the mother $8,839 per month in child support for the three children. The court also required the father to pay for the boys’ summer camp costs and counseling expenses, but rejected the mother’s request that he also pay for their other extracurricular expenses. The court further ordered the father to obtain a $2 million life insurance policy for the benefit of the children, and fixed arrears in the amount of $7,716. Lastly, the court awarded the mother $40,000 in counsel fees that she incurred in connection with the child support dispute and multi-day hearings.

The father now appeals, contending that both the child support award and the counsel fee award are excessive and inconsistent with applicable legal principles. The mother has not cross-appealed.

By statute, parents are presumptively required to provide for the financial support of their unemancipated children. N.J.S.A. 2A:34-23(a). The statute enumerates several factors to consider in calibrating support, including: (1) the “[n]eeds of the child”; (2) the “[s]tandard of living and economic circumstances of each parent”; (3) “[a]ll sources of income and assets of each parent”; (4) the “[e]arning ability of each parent”; (5) the “[n]eed and capacity of the child for education”; (6) the “[a]ge and health of [each] child and each parent”; (7) the “[i]ncome, assets and earning ability of the child”; (8) the “[r]esponsibility of the parents for the court-ordered support of others”; (9) the “[r]easonable debts and liabilities of each child and parent”; and (10) “[a]ny other factors the court may deem relevant.” Ibid.; see also Gac v. Gac, 186 N.J. 535, 548 (2006) (applying the statutory factors); Strahan v. Strahan, 402 N.J. Super. 298, 306-09 (App. Div. 2008) (same).

As a threshold issue, we recognize, as did the motion judge, that the guidelines published in Appendix IX-A of the Court Rules do not strictly control the determination of child support in this case because the parents’ total income far exceeds $187,200 per year. Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, Item 20(b) at 2334 (2009); see also Strahan, supra, 402 N.J. Super. at 307. In such high-earner contexts where parental ability to meet the children’s basic needs is not an issue, “the dominant guideline for consideration is the reasonable needs of the children, which must be addressed in the context of the standard of living of the parties.” Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002); see also Strahan, supra, 402 N.J. Super. at 307. Children from wealthier households “are entitled to not only bare necessities, but a supporting parent [with high earnings] has the obligation to share with his children the benefit of his financial achievement.” Isaacson, supra, 348 N.J. Super. at 580.

On the other hand, assessing the needs of the children in high-income cases must be “consistent with lifestyle without overindulgence.” Id. at 583. For example, “‘no child, no matter how wealthy the parents, needs to be provided [with] more than three ponies.’” Ibid. (quoting In re Patterson, 920 P.2d 450, 455 (Kan. Ct. App. 1996)). Even in wealthier families, the court must still determine the needs of a child “in a sensible manner consistent with the best interests of a child.” Ibid.; see also Strahan, supra, 402 N.J. Super. at 308; Caplan v. Caplan, 364 N.J. Super. 68, 86-90 (App. Div. 2003), aff’d, 182 N.J. 250 (2005).

Our appellate courts are customarily and rightly deferential in reviewing a trial court’s award of child support, particularly in an above-the-guidelines case such as this one, which was adjudicated after several days of plenary hearings. When determining child support awards, “the trial court has substantial discretion.” Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div. 2008); see also Pascale v. Pascale, 140 N.J. 583, 594 (1995). A child support award that is consistent with the applicable law “‘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.’” Gotlib, supra, 399 N.J. Super. at 309 (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)).

Moreover, we must give due regard to the Family Part judge’s credibility determinations and “feel for the case,” based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part’s special expertise, we accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13. Of course, no such deference is warranted if the trial court “ignores applicable [legal] standards.” Gotlib, supra, 399 N.J. Super. at 309.

Here, with respect to income considerations, the father argues that the trial court unreasonably declined to impute income to the mother and instead was obligated to allocate to the mother a defined portion of the children’s financial needs. We disagree.

When determining whether to impute income, the child support guidelines instruct “that the trial court must first determine whether the parent has just cause to be voluntarily unemployed.” Caplan, supra, 182 N.J. at 268. In making that decision, the trial court should consider the following factors:

(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed,

 

(2) the reason and intent for the voluntary underemployment or unemployment,

 

(3) the availability of other assets that may be used to pay support, and

 

(4) the ages of any children in the parent’s household and child-care alternatives.

 

[Considerations in Use of Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2324 (2009) (item 12).]

 

Additionally, “[w]hen imputing income to a parent who is caring for young children, the parent’s income share of child-care costs necessary to allow that person to work outside the home shall be deducted from the imputed income.” Ibid.

We are satisfied that the motion judge did not abuse her discretion in declining to impute net positive earnings to the mother as of the time of the plenary hearings. The mother was nineteen years old when she emigrated to the United States in 1997. At that time she enrolled in one of the father’s schools to learn English. Approximately two months later, she married him. She then gave birth to three children in the short span of three years. The youngest of those children was six years old at the time of the hearings in this case. Throughout the marriage, the mother never obtained employment but cared for the children. She obtained an associate’s degree from a community college only two years before the hearings began in this case. The mother drives the children to school, their extracurricular activities, their sporting events, and medical appointments. She also frequently drives the boys to meet their father for his parenting time.

At the time of the hearings, the mother was seeking employment as a daycare worker or as a teacher’s assistant, positions for which she could expect to be paid only about ten to twelve dollars per hour. However, she apparently had yet to receive an offer of employment.

Given the mother’s limited potential earning capacity and lack of prior work experience, as well as the benefits of the mother personally attending to the boys’ transportation and other after-school needs, there are reasonable grounds for the judge’s decision not to impute net positive earnings to the mother. The judge essentially determined that the child-care and other expenses that the mother would incur if she were employed would substantially eviscerate her potential income. The judge observed that the mother drives the children “wherever they have to be when they have to be there on all of the extracurricular activities,” and that her efforts in that regard “lessens the financial burden on [the father].” As the judge noted, the mother is “putting in the time, the energy, and many other things in order to take care of these children, [services] that otherwise someone else would have to be paid to do.” The judge’s reasoning is neither arbitrary nor an abuse of discretion, although we note that the father remains free to seek prospective relief on the imputation issue if circumstances materially change. See Lepis v. Lepis, 83 N.J. 139 (1980).2

The father additionally contends that the motion judge did not correctly assess the reasonable needs of the children. He maintains that the judge relied too much on a “wish list” of expenses presented by the mother; that the shelter costs derived from Schedule A of the mother’s CIS form were miscalculated; that the court-approved shelter expenses improperly benefited the mother’s fiancé and his son; and that some of the other approved expenses were against the weight of the evidence and unreasonable. Although we have concluded from our own detailed review of the record that certain of the court’s expense calculations warrant adjustment, its determinations were generally sound.

As to the shelter expenses reflected on her Schedule A, the mother recognized that the Warren house is the primary residence of six persons: herself, her three boys, her fiancé and his own son. Endeavoring to remove the incidental benefit to the fiancé and his son for these shelter expenses, the mother generally applied a two-thirds (or four-sixths) fraction to the household costs for utilities, snow removal, cable access, and other shelter items.3 The mother also acknowledged, both on her CIS form and in her testimony, that the two-thirds fractional share for these items should be further reduced by applying a multiplier of three-fourths, so as to segregate out the children’s portion from her own portion. The motion judge considered this allocation to be reasonable, and so do we.

The mother’s Schedule A further indicates that her household incurs a combined monthly expense of $7,577 for a first mortgage, a second mortgage, and real estate taxes. The mother requested to be allocated $3,000 of that monthly sum for her and her children. The motion judge found that allocation to be fair, noting that “[i]f the mother went out to rent an apartment for the three boys and herself and spent three thousand dollars a month on rent, it would not be unreasonable, given the father’s ability to pay.”

The father contends that the shelter allocation is excessive because, as of the time of the hearings, the three sons were all sleeping in the same bedroom at the Warren residence. However, nothing in the record indicates that the boys were excluded from use of the entire house during waking hours. The record also reflects plans by the mother and her fiancé to build an addition on the house that would give them and the children more space. The motion judge was not required because of the boys’ sleeping arrangements to make a further reduction of the shelter costs. In addition, “the law is not offended if there is some incidental benefit to the custodial parent” from a child support calculation, provided that the benefit is not “overreaching.” Isaacson, supra, 348 N.J. Super. at 584-85; Strahan, supra, 402 N.J. Super. at 308. No such overreaching is demonstrated here.

We are persuaded, however, that the trial court’s calculations of the Schedule A costs for the children require some discrete adjustments. With respect to the monthly costs (reduced on the CIS by two thirds) for heat ($486), water and sewer ($107), snow removal ($189), cable ($113) and miscellaneous “other” expenses ($40), the court failed to apply the additional three-fourths multiplier to eliminate the mother’s share. The court also should have reduced the monthly telephone charges ($130) to the ten percent share that the mother herself had attributed to the children. These adjustments collectively would reduce the children’s monthly shelter budget by $350.75.

In addition, we are persuaded that the calculation of the mortgage expenses should be reduced to eliminate the payment on the second mortgage, as the record is devoid of proof that the proceeds of the second mortgage loan were used for the benefit of the parties’ sons. See Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, supra, at 2321 (2009) (item 8). The record does reflect that the monthly payment on the first mortgage, inclusive of an escrow amount for real estate taxes, is $4,638.31.4 Two-thirds of that sum is $3,092.21. Applying three-fourths to that amount to take out the mother’s portion yields $2,319.15.5 The difference between that $2,319.15 sum and the $3,000 (four-person) figure used by the motion judge is $680.85. Accordingly, the Schedule A budget for the children logically should have been further reduced by that amount. Combining that with the $350.75 adjustment mentioned above, the total reduction in Schedule A expenses should have been $1,031.60.

As to Schedule B for transportation expenses, we generally adopt the motion judge’s analysis, and reject the father’s claims that the expenses claimed were excessive. Again, however, the court overlooked the need to discount these expenses to take out the mother’s one-quarter share. Consequently, the entries on Schedule B for the car payment ($450), auto insurance ($217), registration and license ($80), maintenance ($75), fuel and oil ($430), and EZ PASS ($25), need to be multiplied by three-quarters, consistent with the mother’s own testimony and CIS footnotes. These adjustments yield a reduction of Schedule B expenses from $1,277 to $957.75, a difference of $319.25.

Lastly, we discern no basis for any further adjustments of the Schedule C personal expenses for the three children. Unlike her reporting of Schedule A and B expenses, the mother did not apply fractional shares to the Schedule C expenses but instead claimed sums that were allegedly spent directly for the children, such as clothing and food. The motion judge meticulously reviewed those items, and made substantial reductions of most of them. The judge’s determinations were reasonable.

Although the necessary adjustments that we have identified could be addressed by remanding this matter to the Family Part for further proceedings, we have accepted the representations of both counsel that they have no objection to our exercising original jurisdiction to re-calculate the award where we have found it appropriate to do so in light of the points raised on appeal and the applicable law. Accardi v. Accardi, 369 N.J. Super. 75, 91 (App. Div. 2004) (noting the propriety of the exercise of original appellate jurisdiction to avoid “perpetual litigation”). The parties and the trial court have already consumed substantial time and effort in five days of hearings with competing experts. We see no reason to require further proceedings to correct the award, at least as to the straightforward adjustments that we have identified.

For all of these reasons, the monthly child support award of $8,839 is accordingly reduced by $1,350.85 ($1,031.60 for Schedule A plus $319.25 for Schedule B), to a corrected sum of $7,488.15, effective as of the date of the Family Part’s March 25, 2008 order. No further retroactive adjustment is warranted. The parties and the Probation Department shall assist the trial court in computing appropriate credits or arrears.

We briefly comment on the father’s challenge to the counsel fee award. Although the motion judge awarded virtually the entire fee claimed by the mother, we are satisfied that the award was reasonable and consistent with the precepts of Rule 5:3-5(c). The judge specifically noted in her detailed analysis of the Rule 5:3-5 factors that neither party litigated this matter in bad faith or unreasonably, and that, indeed, “both lawyers were very helpful in minimizing the litigation.” The father acknowledges that the mother’s counsel’s hours and hourly rates were not excessive. Given the disparity of the parties’ financial resources, the court was satisfied that the mother was unable to shoulder her own counsel fees. We discern no abuse of discretion in the judge’s fee analysis. See Gotlib, supra, 399 N.J. Super. at 314-15 (noting that counsel fee awards are committed to the Family Part’s “sound discretion”); see also Loro v. Colliano, 354 N.J. Super. 212 (App. Div.), certif. denied, 174 N.J. 544 (2002).

We have fully considered the balance of the arguments raised on appeal and conclude that they lack sufficient merit to require comment. R. 2:11-3(e)(1)(E).

A ffirmed, as modified. The motion judge will issue a modified order consistent with this opinion within twenty days. We do not retain jurisdiction.

 

 

1 The relocation issues were not pursued further on appeal. The present appeal does not challenge the amount of the father’s parenting time.

2 This disposition makes it unnecessary to consider the mother’s potential guidelines-based share of support relating to the first $187,200 in combined income, given that she has no earnings.

3 A one-tenth fraction was applied as to the monthly telephone bill, an allocation for the children that the father does not contest as unreasonable.

4 Because the mortgage statement in the record does not segregate principal from interest, we do not reduce the monthly figure for principal, which we suspect, in any event, is substantially exceeded by the interest portion. The removal of principal may be considered, however, in any future prospective application to adjust child support, with appropriate documentation. See Pressler, supra, Appendix IX-A to R. 5:6A, supra, at 2321 (2009) (item 8).

 

5 We note this figure is very close to three-quarters of $3,000, or $2,250.

 

April 13, 2009

 

Published in: on April 13, 2009 at 7:55 pm  Leave a Comment  
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Father can’t escape PSA

*PLEASE BE ADVISED THAT THIS FIRM DID NOT REPRESENT ANYONE ASSOCIATED WITH THIS CASE.  THIS CASE IS A PUBLIC RECORD AND WAS RE-PRINTED AS SUCH.  THIS CASE CAN ALSO BE FOUND AT:

http://lawlibrary.rutgers.edu/courts/appellate/a4626-07.opn.html

ROBIN HORNE, n.k.a.

ROBIN MANFREDI,

Plaintiff-Respondent,

v.

BRETT D. HORNE,

Defendant-Appellant.

__________________________________

Submitted February 25, 2009 – Decided

Before Judges Rodríguez, Payne and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-387-04.

Law Offices of John H. Rittley, LLC, attorneys for appellant (Mr. Rittley, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Brett D. Horne appeals from orders of the Family Part that require him to: (1) pay for college expenses for his daughter Amanda; (2) reimburse plaintiff Robin Manfredi (formerly Horne) for certain expenses in connection with the marital residence; and (3) pay Manfredi’s counsel fees. We affirm in part and remand in part.

The parties were divorced in 2004 after nineteen years of marriage. They have two children, Amanda and Nicole. Nicole was found to be emancipated in a November 2007 order and is not involved in this appeal. In an earlier appeal involving the parties, we determined that Amanda became emancipated when she became a part-time student and started full-time employment. Horne v. Horne, No. A-2043-07T2 (App. Div. Nov. 13, 2008).

I

As it relates to Amanda, this appeal concerns responsibility for payment for her first two years of college at Florida State University. The issue is governed by Paragraph 12 of the parties’ property settlement agreement (PSA), which provides as follows:

The parties agree that, if the children have the ability, and if they are financially able to pay for the children’s college education, which costs shall include tuition, room and board, books, and reasonable costs of transportation (4 round trips per year), the children shall either attend a state university or community college. The parties agree that the children shall apply and be responsible for all financial aid, loans, grants and scholarships available to them prior to either party contributing to their education. After all financial assistance is calculated, then the parties shall share that net amount due with the Husband being responsible for 60% and the Wife being responsible for 40%. Said college tuition shall not exceed the cost of two years of college at Rutgers the State University of New Jersey. The parties shall modify the then existing child support order when either child enters college. The Husband shall pay 60% costs for both children’s college tuition, costs, fees, room and board. At that time, the Husband shall pay $800 per month in child support for the remaining unemancipated child and contribute 60% of the costs for the other child’s college tuition, costs, fees, room and board during the (30) thirty weeks of the college year. The Wife shall contribute 40% of the college tuition, costs, fees, room and board for the child enrolled as a full time student. The parties agree that Husband shall pay the $1000.00 per month child support for the remaining 22 weeks of the year when the college classes are not in session. Said payments shall be made directly to the Wife. The parties agree to split the first two years of the college costs and tuition, including books, fees, room and board with Husband paying 60% and Wife paying 40%. Neither party shall have an obligation to contribute after the first two years of college for costs but the child support obligation shall continue until the child is emancipated as defined herein. This agreement is based upon the parties understanding of their respective earnings, Husband earning $95,000.00 and Wife earning $58,000.00. The Husband’s share shall not exceed the equivalent of 60% of the cost of Rutgers the State University of New Jersey and that the Husband shall only be required to contribute for two years of college education for each child.

Unlike the parties in Gac v. Gac, 186 N.J. 535 (2006), and Newburgh v. Arrigo, 88 N.J. 529 (1982), the parties now before us discussed and agreed in advance on their respective obligations in the event their children sought to attend college. In such cases, the obligation of the courts is to interpret and enforce the parties’ own agreement. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)). We will not draft a new agreement for the parties. Ibid.; Rolnick v. Rolnick, 262 N.J. Super. 343, 352 (App. Div. 1993) (quoting Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)).

Although Amanda and her father had discussed her attendance at college prior to the divorce, their relationship became strained thereafter. Consequently, he was not involved in her choice of Florida State. Nevertheless, Amanda asked Horne to attend her student orientation with her and he was initially willing to do so, but the plan fell through when Horne insisted on their being accompanied by his girlfriend.

It appears from the record that Amanda attended Florida State as a full-time student during the 2005-2006 and 2006-2007 academic years. She became a part-time student for the 2007-2008 academic year, during which she was also working full-time and attempting to establish Florida residency to lower her educational expenses.1

On May 24, 2006, Manfredi filed a motion in aid of litigants rights, R. 1:10-3, seeking to enforce Horne’s college-payment obligation under the PSA. A plenary hearing was held over several days during the second half of 2007. The trial judge determined that Horne was obligated to contribute to Amanda’s tuition and that he was able to do so during the relevant period, noting in particular a significant discrepancy between the income reported by Horne to taxing authorities and on his application to refinance the former marital residence.

Our scope of review of the trial judge’s factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court’s findings of fact “when supported by adequate, substantial, credible evidence.” Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, “[b]ecause of the family courts’ special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.” Id. at 413.

We are satisfied from our review of the record that the trial judge’s factual findings should not be disturbed with respect to the costs incurred by Amanda and Horne’s ability to pay. Questions of credibility were for the trial judge to determine. Id. at 412. The expenses were documented and supported by testimony the trial judge found to be credible. Manfredi testified that the expenses at Florida State, including living expenses, were slightly more than tuition at Rutgers without including living expenses. However, the PSA requires the parents to contribute to both tuition and room and board during the first two years of college. Consequently, Horne’s suggestion that the total cost at Florida State must be compared with tuition only at Rutgers is incorrect. Horne did not come forward with contrary evidence to support his claim that the applicable costs of attending Florida State exceeded those payable at Rutgers. Amanda did not become a part-time student until her third year, at which time she was emancipated pursuant to the PSA and, in any event, her parents obligation to pay two years of college expenses under the PSA had ended.

The loan at issue was taken out by Amanda and guaranteed by her maternal grandfather. It was not the type of subsidized student loan referred to in the PSA. The trial court was satisfied that Amanda applied for, but did not receive, financial aid.

With respect to Horne’s ability to pay, the trial court’s determination that Horne understated his income was supported by the record and the credibility findings. As noted, Horne made significantly different representations about his income and income-producing capacity depending upon the forum, court, or loan application, involved.

We also reject Horne’s contention that the trial judge unduly favored Manfredi because she was representing herself. We find no support for that assertion in the record. The sua sponte reopening of testimony by the trial judge to address Newburgh factors was well within his discretion. See Newburgh, supra, 88 N.J. at 545. It must be noted that the educational expenses sought were for the benefit of Amanda, not Manfredi.

Consequently, we affirm the trial court’s orders with respect to Horne’s obligations to pay for Amanda’s first two years of college, as he agreed to do in the PSA.

II

Horne also appeals from the award of counsel fees to the attorney who filed the motion on Manfredi’s behalf, although she was pro se at the time of the evidential hearings. In his written opinion of January 29, 2008, the trial judge stated:

I have found defendant in violation of litigant’s rights. I have granted most of the relief requested by the plaintiff. I find that there is bad faith on the part of the defendant in misstating his income. I, therefore, conclude that plaintiff is entitled to counsel fees for the motion that was filed on May 24, 2006.

“The award of counsel fees in matrimonial actions is discretionary with the trial court, R. 4:42-9(a)(1), and an exercise thereof will not be disturbed in the absence of a showing of abuse.” Berkowitz, supra, 55 N.J. at 570. See also R. 5:3-5(c). “We recognize the historical right of trial judges to exercise discretion to award counsel fees in certain matrimonial cases pursuant to Rule 4:42-9(a)(1), without always requiring a plenary hearing where there is a dispute.” Jacobitti v. Jacobitti, 263 N.J. Super. 608, 619 (App. Div.),aff’d, 135 N.J. 571 (1993).

Our review of the issue of counsel fees has been hampered by the fact that the underlying order of March 28, 2008, which set the amount of the fees, and any statement of reasons by the trial judge are not contained in the record. “[A] trial court must analyze the [relevant] factors in determining an award of reasonable counsel fees and then must state its reasons on the record for awarding a particular fee.” R.M. v. Supreme Court of New Jersey, 190 N.J. 1, 12 (2007).2

In any event, it appears from the pleadings contained in the record that Horne’s attorney did not timely receive the certification of services filed by Manfredi’s former counsel and that he did not know that an application had actually been made until shortly before he received the trial court’s March 28, 2008, order granting counsel fees. He raised the issue by motion, but the trial judge declined to address the issue because of the pending appeal. Consequently, we remand the issue for further consideration by the trial judge and do not retain jurisdiction.

III

After considering Horne’s remaining contentions in light of the record, his brief, and the applicable law, we conclude they are without sufficient merit to warrant discussion in a written opinion and affirm substantially for the reasons set forth in the trial judge’s comprehensive written opinion dated January 29, 2008, and his statement of reasons for denying the motion for reconsideration dated April 18, 2008. R. 2:11-3(e)(1)(E).

Affirmed in part and remanded in part.

1 Because our prior opinion incorrectly states that Amanda was emancipated at the end of her first year of college, we will enter an order correcting the date of emancipation.

2 We also note that Rule 4:42-9(d) requires that an award of counsel fees be contained in the order or judgment granting the substantive relief, rather than in a separate order.

April 3, 2009

Published in: on April 6, 2009 at 6:59 pm  Leave a Comment  
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Having a baby does not emancipate adult child

Just won a case last week for a great client.  The father of her child tried to emancipate her  just because the child had a baby.  However, the child still lived at home and was being supported  by my client.  The court agreed with us and found that a child having a baby has nothing to do with regard to whether or not the child has moved beyond the sphere of influence of the parents.  So, we won the case fairly easily.

Published in: on April 6, 2009 at 6:56 pm  Leave a Comment  
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Court staff advocates for pro se litigant

This happened to me this week.  I was representing  a client who was trying to fight an increase in child support.  As he never married the mother of the child, the case was under the FD docket.  The FM docket is for divorces and post-divorce cases.  Most people who have FD cases do not have attorneys whereas most people with FM cases do.  Thus, it is rare for two attorneys to be on an FD case.

Because most people with FD cases are pro se, they would clog up the court system if all of their cases went before a judge, or so the thinking goes.  Thus, the court staff tries to resolve the cases without the case going in front of a judge.  There was another issue in the case and after I discussed it with the court staff, I reminded them that there was still an issue of child support.  The woman I was dealing with told me that child support is based upon the income of both parties.  Needless to say, I was shocked at this incredible revelation.

After assuring her that I did not land from Mars yesterday, I explained that the pro sePlaintiff’s motion was not properly before the court because there were no changed circumstances.  She then said that moving from one state to New Jersey is changed circumstances.  I said that I would object to that argument as there is no law to support it and it was not included in her moving papers.  She then said that pro se litigants are granted lee way when it comes to the court rules. I reminded her that this is improper and asked her if she was the plaintiff’s lawyer now?  She didn’t know how to respond to that so she left to speak with the judge.

When she came back, she said that I was correct (of course) and that the child support would not be increased.   What if I wasn’t there?  This is just a small example of how crazy our system can be.

Published in: on March 29, 2009 at 9:49 am  Leave a Comment  
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