Category Archives: Cases
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”
This case is an example of how not to handle yourself after the divorce more than it is an example of any specific child support or college expenses issues. By conducting himself in the way he did, Tafaro likely cost himself a Newburgh hearing where he could have possibly save money. That is why I ask my clients to focus on the facts and leave out the emotion. If you are facing a Newburgh hearing in NJ (any court) call our team of tough, smart lawyers to discuss your case.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4469-07T34469-07T3
MELANIE MILLER f/k/a
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).
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.
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.
Newburgh v. Arrigo, 88 N.J. 529 (1982).
This is another one of those no-brainer cases where you could only lose in FD court. It doesn’t matter how much of a slam dunk your case is. There is no way she should have lost this case. Luckily for the Plaintiff, Legal Services helped her with the appeal but that probably won’t happen any more. If you are filing a motion to increase child support in New Jersey, you should speak to a lawyer before you do anything. Don’t assume you can’t afford it. Don’t assume that the lawyer won’t take a payment plan. Don’t assume you will win the child support motion on your own. In fact, don’t assume anything! Call our NJ child support motion lawyers to today to discuss your case.
JOHN ATKINS (aka AIKEN),
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.
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
This is another high-income child support cases in NJ where I don’t think the right result was achieved. I hate to Monday morning quarterback another lawyer, especially when I don’t have all the facts, but it seems like there is a lot of missing information here. Clearly, the father challenged the mother’s CIS but it doesn’t seem like there was any other discovery here? Where was the records to back up these figures? What about bank record, credit card statements or even a deposition? While the parties had accountants and there was testimony, the case reads as if everyone just went with the CIS from each party without the records to back it up. If you are facing a high-income child support case in New Jersey, call our team of tough, smart lawyers and have us to do it the right way. We will make sure your high-income case has the records to back up your position and likewise, we will get the records that will defeat the other side’s demands when they are ridiculous and unsupported.
SUPERIOR COURT OF NEW JERSEY
OLGA CADAVID, f/k/a OLGA NIETO,
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).
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).
Affirmed, 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
This case seems pretty straightforward and I find it odd that it went to trial. You have to be careful what you agree to in a PSA with regard to child support and college expenses. NJ law makes it clear that child support and college expenses are separate yet related obligations. This case captures some of the NJ child support laws regarding a child in college and the importance of following the language in the PSA. Before you file a motion with the court, call our lawyers to discuss the NJ college expenses law and how it impacts your case.
*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:
ROBIN HORNE, n.k.a.
BRETT D. HORNE,
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.
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).
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.
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.
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.
April 3, 2009
High Income Child Support cases in New Jersey, can be quite complicated. With no child support guidelines, it is like the wild west. Anything can happen. If things go wrong, you could wind up paying a large percentage of your income to the other parent who could use the money as alimony. Thus, the tough job will turn to your lawyer who must use creative and aggressive arguments to make sure that your high income does not turn your child support into alimony. If you have a high income child support case in any court in NJ, call our team of tough, smart attorneys to discuss your case today.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3009-07T13009-07T1
Submitted February 24, 2009 – Decided
Before Judges Grall and Ashrafi.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-439-99.
Forster & Arbore, attorneys for appellant
(Lawrence D. Forster, on the brief).
Cutler, Simeone, Townsend, Tomaio & Newmark,
attorneys for respondent (Salvatore A. Simeone,
of counsel; Emily R. Carstensen, Laura A.
Steinberg and Mr. Simeone, on the brief).
Rick and Cheryl Bennett were married for sixteen years and have two children. By agreement, an arbitrator’s award on financial matters was incorporated into their judgment of divorce. Since their divorce, they have returned to the court several times disputing financial issues. Now, more than eight years after the divorce, we must again remand to the trial court to recalculate the amount of child support that Rick should have been paying to Cheryl since 2004.
In 2003, Cheryl filed a motion to increase alimony and child support, and otherwise amend financial terms of the divorce judgment. She argued that circumstances had changed since the divorce, in particular, the precipitous decline in value of stock options for Lucent Technologies awarded to her as part of equitable distribution and a dramatic increase in Rick’s income from new employment. The trial court held an evidentiary hearing over five days in 2004 and made rulings on Cheryl’s motion. Cheryl appealed.
In a detailed unpublished opinion, this court affirmed the conclusion of the trial court that changed circumstances entitled Cheryl to adjustment of support payments, but it reversed the amounts of child support and alimony awarded and remanded to the trial court for further findings and analysis in accordance with the discussion contained in the opinion. Bennett v. Bennett, No. A-0939-04T1 (App. Div. June 14, 2006).
On remand, a different trial judge reviewed the lengthy record of the 2004 plenary hearing, the documentary evidence, and the parties’ proposed findings of fact and conclusions of law based on the existing record. The judge issued a comprehensive, written opinion addressing the several issues presented on remand. The accompanying order of the court (1) vacated Cheryl’s obligation to pay a credit of $104,000 to Rick on equitable distribution; (2) increased Rick’s alimony obligation from $55,000 to $100,000 per year; (3) determined that Rick would not pay any additional rehabilitative alimony; (4) imputed to Cheryl annual income of $39,561; (5) required Rick to pay guidelines-based child support of $606 per week; and (6) required Rick to pay additional child support above the guidelines of $283 per week, for a total of $889 per week in child support. On this appeal, Rick challenges only the increases in his child support and alimony obligations.
Generally, trial courts are permitted to exercise discretion in awarding financial support in a matrimonial action. Pascale v. Pascale, 140 N.J. 583, 594, (1995). “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, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)). “‘[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence . . . ‘ in the record.” Id. at 316 (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Thus, the standard of review from the trial court’s support rulings is deferential on factual determinations but plenary on application of the law.
Here, the trial court’s opinion shows careful attention to relevant facts and to the statutory factors listed in N.J.S.A.that must be considered in determining orders of support. But the opinion uses a legally incorrect method to determine the amount of child support that Rick must pay. It does not follow the instructions for making a child support calculation for high income earners contained in the Rules Governing the Courts of the State of New Jersey (“Court Rules”). Also, it double-counts Rick’s responsibility for certain specified expenses of the children. 2A:34-23
The trial court found that Rick’s annual income in 2004 was $374,600. It imputed income of $39,561 to Cheryl based on her education, health, prior work experience, recent job training, and ability to find employment after time away from the job market. These findings are supported by substantial credible evidence.
The combined parental income of more than $400,000 is greater than the income limits contained in the child support guidelines. Where the combined parental net income exceeds $187,200 annually, or $3,600 per week, the Court Rules provide that:
the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income (i.e., income in excess of $187,200) and the factors specified in N.J.S.A.Thus, the maximum guidelines award in Appendix IX-F represents the minimum award for families with net incomes of more than $187,200 per year. 2A:34-23.
[Child Support Guidelines, Pressler,
Current New Jersey Court Rules, Appendix IX-A to R. 5:6A at 2334 (2009).]
The parties agree that Rick’s child support obligation should be calculated from the maximum guidelines-based amount plus a discretionary amount based on the factors in N.J.S.A.and as further explained in Caplan v. Caplan, 182 N.J. 250, 266, 271 (2005). The guidelines-based amount, however, must be allocated between the two parents. The trial court erroneously required that Rick pay the full $606 per week maximum in guidelines-based child support. 2A:34-23,
“That both parents share the obligation to support their children . . . is well established in this state.” Pascale, supra, 140 N.J. at 593. “Child support is the right of the child and the responsibility of both parents.” Ibid. The basic child support amounts contained in Appendix IX-F “represent the average amount that intact families spend on their children [including] the child’s share of expenses for housing, food, clothing, transportation, entertainment, unreimbursed health care up to and including $250 per child per year, and miscellaneous items.” Child Support Guidelines, supra, Appendix IX-A at 2320-21.
The sole parenting worksheet contained in Appendix IX-C of the Court Rules, and the related line instructions contained in Appendix IX-B, show that once the basic child support amount is obtained from Appendix IX-F, the support amount is then allocated between the parents based on the percentage of their individual net income. Child Support Guidelines, supra, Appendix IX-B at 2350, 2353, Appendix IX-C at 2378-79. Even where the parents’ combined income exceeds the child support guidelines, the maximum support under the guidelines must be allocated between the parents based on their relative net incomes. Caplan v. Caplan, 364 N.J. Super. 68, 89 (App. Div. 2003), aff’d, 182 N.J. 250 (2005).
The trial court attributed 73% of the total combined income to Rick and 27% to Cheryl. Rick contends that these percentages are incorrect because they do not account for income taxes payable by each party on gross income. Rick states that the correct percentage allocation of net income after taxes is 64% to him and 36% to Cheryl and, therefore, the amount of guidelines-based support to be allocated to him should have been $388, not $606.
We cannot determine the correct percentages of income from the record presented because the trial court’s opinion does not include a finding regarding applicable income tax rates. It is clear, however, that the percentages for each parent should be based on net, after-tax and after-alimony income, not gross income. Child Support Guidelines, supra, Appendix IX-B at 2346-50. Thus, the $100,000 alimony obligation imposed upon Rick must be subtracted from his income and added to Cheryl’s. Id. at 2346. Then the applicable federal and state income tax rates should be applied, possibly by determining the effective tax rate from filed tax returns, and net income should be calculated for each parent. Id. at 2346-47. The combined net income of the two parents should then be divided into the individual net income of each parent to produce the relative percentage of net income. Id. at 2350. Each parent is responsible for support of the children up to the maximum $606 of the guidelines in accordance with his or her percentage of the total combined net income.
After allocating the maximum guidelines-based child support in this way, the court must determine whether and how much additional discretionary child support is appropriate. In Caplan, supra, 182 N.J. at 271, the Court said, “[W]here the combined net income of the parties exceeds the maximum income under the guidelines . . . the trial court must consider the factors set forth in N.J.S.A.to determine the amount of the supplemental support award and then combine that amount with the guidelines-based award.” The factors set forth in N.J.S.A.are: 2A:34-23(a) 2A:34-23(a)
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.
The Supreme Court approved the approach adopted in this court’s opinion in Caplan for determining how much discretionary child support is appropriate and in allocating that additional discretionary amount between the parents. Caplan, supra, 182 N.J. at 271. First, as the trial court did here, the court must determine the reasonable needs of the children and subtract from that amount the maximum guidelines-based award. The resulting figure will be the discretionary amount to be added to the guidelines child support amount. Caplan, 364 N.J. Super. at 90.
Then, the court must analyze the factors outlined in N.J.S.A. 2A:34-23(a) and determine each party’s responsibility for satisfying those remaining needs. It is the result of that analysis that is to be utilized when determining the fair and equitable allocation of the remaining needs of the children between the parties.
The Supreme Court also suggested an alternative approach to determining the discretionary amount of additional child support. The trial court can “consider certain categories of expenses that are partially included in the guidelines award and . . . calculate a fair additional support amount for those . . . categories.” Id. at 272. The Court indicated that “the choice of the methodology to employ in arriving at a child support award” for high income parents is left to the trial court’s discretion. Ibid. “Under either method, the trial court’s goal is to calculate a child support award that is in the best interest of the child after giving due consideration to the statutory factors and the guidelines.” Ibid.
Here, the trial court considered each of the statutory factors and determined that the children’s expenses, when living in a manner comparable to the marital lifestyle, were $51,672 per year. After subtracting the annual guidelines-based support amount of $31,512 ($606 x 52), the court allocated the remaining $20,160 between the parents according to its determination of their relative percentage of gross combined parental income, 73% to Rick and 27% to Cheryl. Rick was ordered to pay $283 per week as additional discretionary child support, calculated as 73% of $20,160 divided by 52 weeks. That allocation was erroneous.
While percentages must be applied to the guidelines-based child support obligation, relative percentages of the parents’ incomes are not to be used to allocate any discretionary award above the guidelines-based amount. Caplan, supra, 182 N.J. at 271.
[B]ecause the income and assets of each party are only two of the many statutory factors the trial court must consider in determining a fair and just child support award, the allocation equation utilized under the guidelines-based award has little or no application to the amount of additional support determined through analyzing the N.J.S.A.factors. 2A:34-23
On remand, the trial court must determine a fair allocation of the discretionary additional child support based on analysis of the statutory factors and not by a fixed formula of percentages.
In recalculating Rick’s child support obligation, the trial court should ensure that certain specified expenses of the children are not double-counted both to determine the amount of child support and as separate obligations under the divorce judgment. The divorce judgment of November 9, 2000, incorporated the terms of the arbitration award, which, in turn, required Rick to pay two-thirds of all uninsured medical, dental, and prescription drug expenses; 100% of the son’s orthodontia expenses; and two-thirds of summer camp, tutoring, and psychiatric evaluation expenses of the children.
After the plenary hearing of 2004, the trial court modified these obligations by order dated September 9, 2004, to require that Rick pay 75% of unreimbursed medical, dental, and drug expenses after the first $250 per child per year; 75% of the children’s expenses for summer camp, tutoring, driving lessons, auto insurance, SAT preparation courses, and one vacation per year; and 100% of expenses for riding and tennis lessons and computers for the children. These obligations were in addition to child support and alimony payments to be paid by Rick.
This court’s 2006 opinion reversed the child support and alimony determinations but left intact the remaining relevant provisions of the September 9, 2004 order. Bennett v. Bennett, supra, No. A-0939-04T1 (slip op. at 41-42). Rick argues persuasively that the weekly child support obligation imposed after remand by the trial court’s order of January 17, 2008, includes expenses such as vision care, psychiatric counseling, orthodontia, and vacations and, in effect, he is required to pay twice for these expenses.
After the prior remand, the trial court reviewed with rigorous detail Cheryl’s 2003 case information statement (CIS) and made specific findings regarding the expenses Cheryl had listed. The court concluded that the combined reasonable expenses of Cheryl and the children were $10,978 per month, or $131,736 per year. Based on that finding of fact, and imputing potential earnings to Cheryl of $39,561 per year, the court awarded alimony of $100,000 per year, or $1,923 per week.
The court then painstakingly separated the expenses attributable to the children in Cheryl’s CIS, apparently without adequate aid from the parties’ submissions. The court concluded that the children’s expenses totaled $51,672 per year, that is, slightly less than $1,000 per week. Based on that calculation and the determination that Rick pay the $606 per week maximum of guidelines-based child support, the court concluded that a discretionary award was appropriate and ordered Rick to pay an additional $283 per week, for a total child support obligation of $889 per week.
The trial court’s diligent efforts appear to have strayed in including expenses for eye care, psychiatric counseling for the son, orthodontia, vacation, and summer camp in determining the children’s expenses pertinent to the child support order. The court also referred to age-appropriate expenses such as driving lessons, auto expenses, and college preparation courses that may arise in the future. Because these expenses were separately addressed in the parties’ divorce judgment and subsequent modification order of September 9, 2004, they should not have been included in determining the recurring expenses of the children for purposes of calculating child support.
Alternatively, if the trial court intended to include these expenses as part of Rick’s regular child support obligation, the existing provisions requiring Rick to pay 75% or 100% of those non-recurring expenses contained in the September 9, 2004, order should have been expressly modified.
Rick argues next that the combined alimony and child support awards exceed Cheryl’s budgetary requirements as determined by the court. He contends that adding Cheryl’s imputed income of $39,561, the $100,000 in alimony, and his child support obligation of $46,228 per year will net Cheryl, after taxes, substantially more than $131,736 per year that the court determined is necessary to maintain Cheryl and the children in a comparable lifestyle to that acquired during the marriage, see Crews v. Crews, 164 N.J. 11, 16 (2000), or that an intact family would provide for the children, see Caplan, supra, 182 N.J. at 268.
Again, we have insufficient information to determine whether the total award to Cheryl substantially exceeds the needs found by the trial court. Income tax rates must be considered to calculate net disposable income. When awarding financial support, the trial court has discretion to approximate Cheryl’s and the children’s needs and Rick’s support obligation. Precise matching of needs and Cheryl’s total income, including support from Rick, is not required. Because we must remand for recalculation of child support, the trial court can again consider whether the total amounts that Rick is ordered to pay, including alimony, approximate its findings regarding Cheryl’s and the children’s financial needs.
Although we find no valid criticism of the court’s award of increased alimony to Cheryl, child support and alimony are interrelated obligations. The amount of alimony ordered affects the amount of child support that is each parents’ obligation. Child Support Guidelines, supra, Appendix IX-B at 2346. Alimony should normally be ordered first and then child support calculated, as the trial court did here. Ibid. The trial court separated the expenses of the children and Cheryl to the best of its ability without detailed information from the parties. If on remand the accounting changes for the children’s and Cheryl’s expenses, the trial court will naturally have discretion to determine whether any adjustment in alimony is appropriate in conjunction with recalculation of Rick’s child support obligation.
Finally, Cheryl moved before this court to dismiss Rick’s appeal and for attorney’s fees. By order dated October 28, 2008, this court denied Cheryl’s motion to dismiss but reserved decision on Cheryl’s request for attorney’s fees. We find no basis to award Cheryl attorney’s fees related to the appeal. We make no determination regarding whether either party is entitled to attorney’s fees in the trial court. In addressing revisions to the child support order, the trial court may consider whether attorney’s fees should be awarded in accordance with the factors listed in Rule 5:3-5(c).
In conclusion, we reverse so much of the trial court’s order of January 17, 2008, requiring Rick to pay a total of $889 per week in child support, and we remand for recalculation of an appropriate award of child support in accordance with the Court Rules and Caplan v. Caplan, supra, 182 N.J. 250. The trial court shall have discretion to adjust the order for alimony in conjunction with its child support order. In all other respects, the order of January 17, 2008, shall remain in effect.
This cases shows why having a carefully written PSA is important and how it is even more important to make sure your lawyer enforces the agreement. Without a carefully written agreement, you could be on the hook for a number of expenses such as summer camp, music lessons, sports, etc. If you are facing a motion for music lessons and summer camp and you already pay child support in New Jersey, call our NJ Child Support Attorneys to discuss your case today.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0657-07T20657-07T2
JULIANNE J. ZENN,
Argued October 21, 2008 – Decided
Before Judges Wefing, Yannotti and LeWinn.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-529-03.
Stephen E. Samnick argued the cause for appellant (The Samnick Law Group, attorneys; Mr. Samnick, on the brief).
Patrick T. Collins argued the cause for respondent (Franzblau Dratch, P.C., attorneys; Mr. Collins, on the brief).
In this post-judgment matrimonial matter, defendant Roger Zenn appeals from the September 4, 2007 order of the Family Part that: (1) required him to contribute $7,525 as his share of the parties’ daughter’s summer camp expenses for 2005 through 2007, and $1,200 towards the child’s violin lessons through June 11, 2007, and to continue pay fifty percent of the child’s ongoing violin lessons; (2) modified defendant’s parenting time with the child; and (3) awarded plaintiff $2,000 in counsel fees. Because we conclude that the trial judge’s decision is inconsistent with the specific terms of the parties’ property settlement agreement (PSA) incorporated into their judgment of divorce, we reverse.
The pertinent factual background may be briefly summarized as follows. The parties were divorced on July 20, 2004. At a prior hearing on June 21, 2004, the parties placed the terms of their agreement on the record before the trial judge. At that time, defendant expressed his specific concern about being consulted regarding expenses incurred on behalf of the parties’ child, stating that he had encountered problems in this regard in his previous divorce. At that hearing, defendant told the trial judge, “It boils down to in my previous marriage I had no say at all and I was just given a bill. And I had no input at all.” In response, the trial judge stated that “both parties shall be consulted. Put in the language [in the PSA] both parties shall be consulted prior to the child making any determination, any decision.”
The child’s attendance at summer camp and the allocation of those expenses were also addressed at that hearing. Plaintiff’s counsel stated:
As to summer camp, defendant will pay to plaintiff the sum of [$]1900 as a contribution toward the cost of this year’s summer camp. As to future years, the parties will confer in advance of a decision being made with respect to [the child’s] attendance at summer camp and upon their agreement they will each be responsible for 50 percent of what is incurred.
The parties’ PSA contained the following provisions pertinent to these particular concerns:
2. The parties will have equal decision making and input as to all decisions affecting [the child’s] health, education, activities and general welfare. Plaintiff shall make all day to day decisions regarding [the child], except during those times when she is in the defendant’s care, when he will make such decisions. Except in cases of emergency, neither party shall make any unilateral decision with respect to any major decisions without first obtaining the other parent’s consent. All communication may be in person or by the telephone, but must also be in writing via either e-mail or registered mail, and shall be made within seven days of the receipt of the information, unless the timing makes this impractical, in which event the communication shall be made within a reasonable time.
. . . .
37. Defendant shall pay to plaintiff the sum of $1,900 which represents one [-]half of the cost of [the child’s] summer camp for the 2004 year. In future years, the parties will discuss proposals for [the child’s] summer camp attendance and shall share the cost upon reaching an agreement. Defendant shall not be responsible for contributing to the costs of a camp program to which he does not agree, but his agreement may not be unreasonably withheld.
38. The parties shall consult regarding extracurricular activities which have a cost component in which [the child] seeks to participate, and shall share those costs on a 50/50 basis, subject to defendant’s consent to [the child’s] participation, which consent may not be unreasonably withheld. Defendant shall not be require[d] to contribute to the cost of any activities for which he is not consulted or to which he does not agree, subject to the for[e]going.
On June 20, 2007, plaintiff filed a motion to compel defendant to reimburse her fifty percent of the child’s summer camp expenses for 2005 through 2007, in the amount of $7,525, and fifty percent of the child’s violin lessons, in the amount of $1,200. She also sought counsel fees. Regarding the camp cost, plaintiff certified that the parties’ daughter attended the same camp in 2005 and 2006 that she had attended in 2004, “which defendant had reluctantly agreed to contribute to the cost [of] in 2004. . . . Each time I brought up with defendant the subject of [the child’s] camp attendance and his obligation to contribute to it, he failed to respond to me in any way.” Plaintiff further certified that the child would be attending a different camp in the summer of 2007, at a cost of $7,100. She certified that defendant “simply refused to respond to me when I raised the subject with him.” Plaintiff also certified that the violin lessons “commenced in July 2006 and through June 11, 2007, [the child] has attended 40 lessons . . . at a cost of $2,400. . . . Defendant well knows that [the child] attends violin lessons, and that there is a cost.”
On July 24, 2007, defendant filed a cross-motion to deny plaintiff’s motion and to “[d]irect that plaintiff fully comply with the Final Judgment of Divorce, regarding all notice provisions thereunder, to wit: school, activities, expenditures of extraordinary amounts of money; . . . doctor’s appointments, etc.”; and to have plaintiff held in violation of litigant’s rights for failure to comply with the notice provisions of the PSA. Defendant further sought additional overnight visitation with the child on Wednesdays during the school year, from after school to the following Thursday morning, at which time he would drop her at school; he also sought additional overnight parenting time during the summer weeks that the child did not attend sleep-away camp.
Defendant certified that he was “never consulted” about his daughter’s violin lessons or summer camp choices. He noted that plaintiff’s motion contained no “documentation” of any “written notice . . . in accordance with the terms and conditions of the [PSA].” Defendant appended a series of e-mails he sent plaintiff which, he asserted, demonstrated his difficulty in “adequately participat[ing] in [his] daughter[‘]s life[,]” adding, “the provisions of the [PSA] were never utilized, but rather w[ere] negated by plaintiff’s unilateral decisions. This is precisely the mischief that the [PSA] sought to remedy.”
Regarding his parenting time, defendant quoted from paragraph 3 of the PSA, which provided that:
[t]he parties shall exert every reasonable effort to maintain free access and unhampered contact between [the child] and the other parent. Neither parent shall do anything which may estrange [the child] from the other or injure [the child’s] opinion as to either plaintiff or defendant.
Defendant certified that on a number of occasions, “plaintiff intentionally interfered and blocked telephone access by [him] to [his] daughter.” He appended a log of the “dates and times” when he claimed such interference occurred. Defendant certified that his daughter had expressed “to [him] on multiple occasions that she would like to be at [his] house more often.”
In her reply certification, plaintiff claimed that she “sent defendant e-mails on numerous occasions on these subjects . . . .” However, she “d[id] not engage in litigation planning and d[id] not preserve all of [her] e-mails for future use.” Regarding defendant’s request for additional parenting time, plaintiff certified that the child “does not want to go to defendant’s home for more time than [she] currently spends [there].”
At oral argument on August 10, 2007, the trial judge, who had also presided over the parties’ divorce settlement hearing in 2004, questioned defendant’s counsel whether it was “fundamentally fair” to require plaintiff to give defendant notice “before he’s liable to pay for one-half of his child’s violin lessons, his child’s summer camp?” When counsel pointed out the specific provisions in paragraph 2 of the PSA, the judge asked: “[D]oes that say that the plaintiff has an affirmative obligation to give notice and in the event the plaintiff does not, the defendant could basically thumb his nose at what’s fair?” Defendant’s counsel attempted to refer to a letter he had sent to plaintiff’s attorney reminding him of plaintiff’s obligation to comply with the notice requirements of the PSA. The judge stated that the letter was “self-serving.”
When asked if defendant would have objected to plaintiff’s choice of the child’s camp for 2007, counsel responded that he would have objected and would have asked to have the child attend Camp Ramah, because, as defendant certified, he would have “considered more appropriate . . . a camp providing a more religious orientation” to the child’s Jewish faith. The judge responded: “[T]hat’s ridiculous. . . . [T]he child has been going to that camp forever. And now you’re going to say no. I want [her] to go to a different camp.”
During the course of the judge’s ruling that defendant would continue to pay fifty percent of the child’s summer camp expenses and violin lessons, his counsel pointed out that plaintiff had appended no proof that actual payments had been made on these expenses, noting that “[t]here’s one check attached.” The judge acknowledged that he had not read all the attachments to the parties’ certifications. Notwithstanding the lack of proof of full payment, the judge ordered defendant to reimburse plaintiff one-half of the sum that she sought.
Regarding defendant’s request for Wednesday overnight parenting time, the court granted that modification “limited to . . . when there’s no school on Thursdays.”
In awarding counsel fees to plaintiff, the trial judge stated: “I find no basis whatsoever for the defendant not paying his half share under the circumstances.”
On appeal, defendant raises the following arguments for our consideration: (1) the trial judge erred in failing to enforce the notice provisions of the parties’ PSA, and in failing to read the exhibits attached to defendant’s motion; (2) the trial judge erroneously denied defendant additional parenting time because the judge deemed him to be a “lesser father” due to his objections to the camp and violin lesson expenses; (3) the judge resolved the parenting time issue on the basis of conflicting certifications, without holding a hearing; and (4) the judge erred in awarding plaintiff counsel fees.
Having reviewed the record in light of these contentions, we agree that the trial judge erroneously disregarded express language in the parties’ PSA when he required defendant to contribute to the camp and violin lesson expenses in the absence of any evidence of plaintiff’s compliance with the written notice requirement in paragraph 2. Plaintiff relies upon our recent decision in Gotlib v. Gotlib, 399 N.J. Super 295 (App. Div. 2008). However, we do not consider that decision controlling here. In Gotlib, we affirmed a trial court order requiring the father to reimburse the mother fifty percent of the children’s unreimbursed medical expenses pursuant to a provision in the parties’ divorce judgment that each would be “‘equally responsible to provide for the children’s medical, dental, orthodontial [sic], opthalmological, or pharmaceutical expenses that are not covered by . . . health insurance.'” Id. at 301. The divorce judgment also required the mother to consult with the father and seek his input on the need for medical services.
Notwithstanding the mother’s failure to comply with this latter provision, we nonetheless enforced the father’s obligation to contribute to the children’s medical expenses, viewing “plaintiff’s inaction . . . as `the result of frustration as much as anything else.'” Id. at 306 (quoting Clarke v. Clarke, 359 N.J. Super. 562, 571 (App. Div. 2003)). That conclusion was based upon the mother’s demonstrated attempt to collect unreimbursed medical expenses by a series of letters to the father which he consistently ignored. Ibid.
By contrast, in this case there is no evidence that plaintiff consulted with or gave defendant written notice about the new summer camp expenses or the violin lessons prior to incurring those expenses on the child’s behalf. Furthermore, the “payments to offset un-reimbursed medical expenses” at issue in Gotlib were “intended to provide essential benefits to the parties’ children.” Ibid. (Emphasis added). Here, we are presented with highly discretionary “benefits” which do not so clearly come within “‘the child’s independent right of support from a natural parent.'” Ibid. (quoting L.V. v. R.S., 347 N.J. Super. 33, 40 (App. Div. 2002)).
Plaintiff asserts that “[i]f defendant [had] articulated a reason why his daughter should not have had these experiences or benefits, the answer to this question might be different . . . .” With respect to the child’s summer camp attendance, defendant certified that he would have preferred sending her to a Jewish-affiliated camp, rather than the camp chosen by plaintiff. When defendant attempted to advise the trial judge of the camp he considered “more appropriate[,]” the judge responded, “that’s ridiculous.”
In sum, we conclude the trial court gave unduly short shrift to defendant’s right to rely upon an expressly bargained- for PSA provision requiring plaintiff to give him written notice before incurring the types of expenses at issue here.
Because we reverse the reimbursement provisions in the September 4, 2007 order, we also reverse the counsel fee awarded therein. That issue may be addressed anew at the conclusion of the remand proceedings.
Regarding defendant’s cross-motion for visitation, the trial judge acknowledged that he had not read all of the motion papers. Defendant’s exhibits documented the parties’ disagreements on this issue. We conclude the trial judge acted precipitously in ruling on this issue on this record. In view of the parties’ disagreement, on remand the trial judge may wish to consider appointment of a Parenting Coordinator. We take no position on the merits of such an appointment and leave it to the discretion of the judge on remand to determine how best to proceed after developing a more complete record on which to base resolution of this issue. Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998).
Reversed and remanded for further proceedings in conformance with this opinion. We do not retain jurisdiction.
This case is just another example of what could happen when you represent yourself. Besides not knowing what you are doing, the court could just run you over in its ruling. This could cost you a fortune. Thus, while it might be tough to afford an attorney, it will be much tougher to afford the high child support that you may have to pay as a result. Child Support Lawyers in NJ don’t have to cost a lot of money. Furthermore, payment plans can also be worked out with our firm. Let our NJ Child Support Lawyers help you. Call us today.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1147-07T21147-07T2
DARLENE LEWIS, f/k/a DARLENE
Argued January 5, 2009 – Decided
Before Judges Lisa and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1690-98.
Amy Sara Cores argued the cause for appellant (Hoffman, Schreiber & Cores, attorneys; Ms. Cores, on the brief).
August J. Landi argued the cause for respondent.
Plaintiff appeals from the September 21, 2007 order of the Family Part judge ordering him to pay seventy percent of the “parties’ children’s college tuition, room and board [net] after loans, grants, the children’s money and other sources of financial aid . . . have been exhausted . . . .” The order requires the parties to share equally other college-related expenses. Because we conclude the court mistakenly exercised its discretion in permitting the matter to proceed to oral argument in defendant’s absence, we reverse and remand for reconsideration of all issues anew.
The parties divorced in December 1998. Four children were born of their union. At the time of the divorce, the children ranged in age from fourteen to seven. Incorporated into the judgment of divorce was a Property Settlement Agreement (PSA) that included a provision addressing the parties’ expectations related to their children’s higher education:
The parties recognize that they have an obligation to provide for the college education of their children, taking into consideration at the time each child attains the appropriate age, the respective income and assets of the parties and the child as well as the child’s abilities. The parties agree to consult with a view toward adopting a harmonious policy concerning the college education of each child. Accordingly, as each child is prepared to make application to colleges, both parents shall have the right to approve of the application process and participate in the selection of appropriate schools. It is understood that the children will use their own money and seek all loans, grants, and other sources of financial aid. Post high school education shall include the costs of tuition, room, board, books, school fees and reasonable transportation costs between home and school for school vacations. The parties agree to cooperate in completing any financial aid application.
When their oldest child, who was emancipated at the time the present matter was before the court, attended college, the parties reached an agreement about their respective contributions. Plaintiff agreed to be responsible for seventy percent of the costs, while defendant, Darlene Lewis, was responsible for the remaining thirty percent of those expenses. Their second child was accepted at the University of Scranton. The total estimated annual costs were $39,768. After deducting from that amount the financial aid awarded in the form of loans, grants, and scholarships, the anticipated yearly balance that remained was $17,768.
Defendant proposed to split the costs 70/30 once again. The parties were unable to reach an agreement. Consequently, defendant filed a pro se post-judgment motion seeking an order directing plaintiff to contribute seventy percent towards the college expenses of their second child after deducting financial aid from all sources. Defendant based her request upon what she characterized as the precedent established by plaintiff’s seventy percent contribution towards their oldest child’s college costs.
Plaintiff, also appearing pro se, opposed the motion. He submitted his tax returns for the previous four years to demonstrate that there had been a substantial decrease in his income over the four-year period. He argued that (1) contrary to the PSA, he was not consulted regarding the college application process or the selection of the University of Scranton; (2) defendant inaccurately stated that he earned “3.8 times what she does”; (3) defendant was receiving $38,000 in non-taxable child support, which he urged was the equivalent of $65,000 in taxable income; and (4) he was unable to pay seventy percent of the costs as requested. Plaintiff proposed that the expenses be split three ways between defendant, plaintiff, and their college-bound child, each being responsible for one-third of the costs.
On the return date of the motion, plaintiff did not appear. The court acknowledged his absence. The court also acknowledged that defendant had requested oral argument and proceeded to hear oral argument. At its conclusion, the court ordered that plaintiff be responsible for seventy percent of the costs not only for their second child, who was the subject of the motion, but for all of the unemancipated children unless there was a change.
On appeal, plaintiff contends the court improperly allocated the respective percentages each party is required to contribute towards college expenses, improperly failed to reduce the child support, which it should have done in consideration of those children attending college, and “misapplied” its discretion by permitting defendant to appear and argue the motion in plaintiff’s absence and without making sufficient findings of fact and conclusions of law.
Rule 5:5-4(a) governing motions in the Family Part provides that in exercising its discretion as to the mode and scheduling of disposition of motions, “the court shall ordinarily grant requests for oral argument on substantive . . . motions.” R. 5:5-4(a); see also Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (citing Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997)). As interpreted, the rule contemplates oral argument “when significant substantive issues are raised and argument is requested.” Ibid.
Here, the return date of the motion was originally scheduled for August 17, but was adjourned at the request of plaintiff. The court rescheduled the matter for August 31. Plaintiff, as part of his opposition to defendant’s motion, submitted a certification dated August 22, in which he requested another adjournment:
I also need to inform his honor that I can not attend in person on August 31 to represent myself in oral argument. My coworker is on vacation next week and my presence at work is mandatory. My job is directly related to the existing credit crunch in the financing markets and I have to be at work. I humbly ask for an adjournment and full financial disclosure [to] settle this matter.
Although defendant did not specifically request oral argument, it is apparent by his adjournment request that he wanted to appear to “represent [himself] in oral argument.” There is no record indicating that the court responded to plaintiff’s second adjournment request. Rather, it appears that the court was unaware that the request had been made. Before defendant commenced her oral argument on August 31, the following exchange occurred between defendant and the court:
THE COURT: All right. I note Mr. Eastwood is not here. Ms. Lewis had requested oral argument, so I will proceed on her motion and also hear your response to his motion.
MS. LEWIS: Okay. I did not receive a motion from him.
THE COURT: Oh, wait a minute. Perhaps — just bear with me a second.
MS. LEWIS: Sure.
THE COURT: Oh, you are correct. It was just your motion. Okay. All right. I’ll hear from you.
MS. LEWIS: Okay. I don’t know why he’s not here. He did e-mail me actually saying that this was the date today that we were supposed to be here. It’s a very timely matter, as my son started school and the first payment was due August 22nd. I had had a court date for August 17th, which he called and said he couldn’t make, so you adjourned it for this date. Any he’s not here again. Tuition is now late. My son has started school. I’m kind of in a bind. So I’m happy that you’ve allowed me to present my oral argument today.
The court proceeded to consider defendant’s oral argument without placing on the record any reasons for exercising its discretion to proceed in plaintiff’s absence. Under these circumstances, we are constrained to vacate the order entered and remand for reconsideration of the matter to afford plaintiff an opportunity to appear for oral argument.
In view of our remand, we take the opportunity to comment upon plaintiff’s contention that the court reached its decision without considering defendant’s remarriage, without requiring defendant to submit a completed Case Information Statement (CIS), and without considering the fact that child support had not been adjusted to reflect that his second child was not living at home during the school year.
Plaintiff’s certification in opposition to defendant’s motion did not raise any of these issues. Nonetheless, in light of our remand and the passage of time, the court should direct the parties to submit updated CIS’s and, when considering the motion anew, articulate its consideration of the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), where the Court established a twelve-factor balancing test to aid in determining whether and to what extent a court should require a parent to contribute to the cost of a child’s post-secondary education. See R. 1:7-4 (requiring by written or oral opinion, findings of fact and conclusions of law “on every motion decided by a written order that is appealable as of right”).
Reversed and remanded for further proceedings consistent with this opinion
If you needed another reason as to why you need, an attorney, here is a great one. This judge decided the case using the wrong legal standard! Unfortunately, stuff like this does happen. If you are facing an emancipation case in any court in New Jersey, call the team of tough, smart NJ Emancipation Lawyers today to discuss your case.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2427-07T3
HELENE L. RIGNEY,
February 27, 2009
Submitted January 21, 2009 – Decided
Before Judges Winkelstein and Gilroy.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2495-97.
Helene L. Rigney, appellant pro se.
Steven Brandes has not filed a brief.
Defendant Helene L. Rigney appeals from that part of the September 20, 2007 order of the Family Part, as amended by a second order of the same day and by an order of September 26, 2007, that declared the parties’ younger son emancipated. She also appeals from the orders of November 2, 2007, and December 21, 2007, denying her motions for reconsideration. We reverse and remand for further proceedings consistent with this opinion.
Following fifteen years of marriage, the parties were divorced on July 29, 1997. Three children were born of the marriage: Raymond, born December 1982; Eric, born July 1985; and Jessica, born June 1990. The judgment of divorce incorporated the parties’ July 9, 1997 property settlement agreement (PSA), and addressed issues of child custody and child support, including the parties’ obligations to contribute toward the children’s college expenses in proportion to the parties’ financial abilities.
Initially, the parties shared legal custody of the three children, with plaintiff designated as the custodial parent. In March 1998, an order was entered transferring physical custody of Raymond to defendant. In May 1998, a child support order was entered as to both parties. In September 2000, plaintiff consented to a transfer of physical custody of Eric and Jessica to defendant. On July 23, 2004, the court entered an order denying plaintiff’s motion seeking to have Raymond and Eric declared emancipated.1
In September 2007, plaintiff moved a second time to have the parties’ sons emancipated. At the time of oral argument on September 20, 2007, Raymond was age twenty-four, had recently graduated from law school, and had begun a judicial clerkship. Based on those findings, the court declared Raymond emancipated. Defendant does not challenge that determination.
Plaintiff sought to have Eric emancipated, alleging that he could no longer afford to pay Eric’s college expenses, his son having already attended four years of college. Defendant objected, contending that part of Eric’s difficulty in completing college was because of health issues. After referencing the factors in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), the trial court declared Eric emancipated as of the day of oral argument. As to Eric’s college expenses, the court directed that Eric should obtain personal loans for college, and if he successfully completes his college education in the next three years, he could then move for reimbursement of his educational expenses from his parents. The court entered a confirming order on September 20, 2007. On that same day and on September 26, 2007, the court entered two amended orders increasing plaintiff’s child support obligation for the parties’ daughter.
At oral argument, defendant accepted the court’s reasoning that it would be better to compel Eric to pay for his own college expenses in hope that he will pursue his college education more diligently than he has in the past. However, defendant twice moved for reconsideration of the court’s order declaring Eric emancipated. Although the motions also sought other miscellaneous relief, the parts of both motions seeking reconsideration of the court’s determination of Eric’s emancipation were denied.
On appeal, defendant argues: 1) the record does not support the court’s finding that Eric was emancipated, not having left the sphere of parental influence; 2) the court erred in determining Eric emancipated based solely on his lack of commitment to his educational endeavors; 3) the court did not consider Eric’s medical condition in determining him emancipated; 4) the court improperly cited the Newburgh factors as a basis for emancipation; 5) the court improperly reversed the prior order denying emancipation without proof of a change of circumstances; and 6) the court did not conduct a plenary hearing.
Appellate review of a trial court’s fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The general rule is that a trial court’s findings are binding on appeal when supported by adequate, substantial, and credible evidence. Ibid. Such deference is especially owed to family court fact-findings “[b]ecause of the family courts’ special jurisdiction and expertise in family matters.” Id. at 413. An appellate court, however, does not owe any special deference to a trial court’s legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Generally, “emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child.” Newburgh, supra, 88 N.J. at 543. In New Jersey, there is no fixed age when emancipation occurs. Gac v. Gac, 186 N.J. 535, 542 (2006). While a rebuttable presumption against emancipation occurs prior to reaching the age of majority, N.J.S.A. 9:17B-3, attainment of age eighteen establishes prima facie, but not conclusive, proof of emancipation. Ibid. For example, emancipation may occur upon a child’s marriage, upon induction into military service, by court order based on a child’s best interest, or by attainment of an appropriate age. Newburgh, supra, 88 N.J. at 543. The issue is fact sensitive. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).
“[T]he essential inquiry is whether the child has moved ‘beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'” Ibid. (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This determination requires “a critical evaluation of the prevailing circumstances including the child’s need[s], interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.” Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). It is against these principles that we consider defendant’s arguments.
The trial court decided plaintiff’s emancipation motion on the arguments of the parties and their certifications filed with the court. Plaintiff certified in his August 7, 2007 certification that Eric turned eighteen on July 2, 2003; that during the prior four years, Eric had attended three colleges “on and off” without acquiring a two-year degree; Eric no longer resides with defendant, having moved out of defendant’s home to reside with other individuals in New Brunswick; and Eric was employed as a security guard more than twenty hours a week, earning money “to pay for his car, games and other personal interests.”
In her opposing certification defendant countered that, although Eric presently resides in New Brunswick, it “is primarily for the ease of the commute to DeVry [Technical Institute] in North Brunswick, and is not a permanent move.” Defendant asserted that Eric’s living in New Brunswick with other roommates is not an immediate emancipation event because “Eric plans to attend DeVry Technical Institute in September and will be living [in New Brunswick] during the school [t]erm. DeVry does not offer on[-]campus housing, and seeing that [I live] in Warren County, the commute time is extraordinary.”
As to Eric’s support, defendant certified that she presently pays for his car insurance and phone bill; and provides him money for food, clothing, and all other means of support. She denied that Eric has been going to college for four years “on and off,” but rather has continuously attended college during the four years without any gaps. Although defendant concedes that Eric transferred colleges during that time period, she stated that the primary reason he left the first college was because of the long commute to Newark where he was attending college after she moved to Phillipsburg. In addition, Eric suffered cardiac problems during the fall of 2005 and spring 2006, causing him to miss classes. Concerning Eric’s present intentions, defendant informed the court that he desires to continue his education and attend DeVry. Lastly, as to Eric’s employment as a security guard, defendant stated that “[t]his is certainly not a full[-]time job and is merely a part[-]time [j]ob for extra spending money while he is preparing to attend [s]chool [f]ull [t]ime in the fall.”
We agree with defendant that the trial court did not apply the proper legal standard in deciding the issue of Eric’s emancipation. The Newburgh factors that the court referenced concern a parent’s obligation to pay for a child’s college expenses. Here, the PSA addressed that issue. Thus, the issue before the court was whether Eric was emancipated. If found emancipated, then plaintiff’s obligation to pay child support for Eric and to contribute toward his college expenses would terminate. If not emancipated, then plaintiff’s obligation to contribute toward his support, including college expenses, as agreed upon in the PSA, would continue.
Here, the trial court did not determine whether Eric has reached such an independent status in his life as to be deemed emancipated. Bishop, supra, 287 N.J. Super. at 598. Because we are satisfied the trial judge did not properly decide the issue of emancipation under the correct legal principles, we reverse those parts of the three orders of September 20, 2007 and September 26, 2007, that determined Eric emancipated. We remand the matter to the trial court to reconsider that issue and, if necessary, to conduct a plenary hearing on the matter to resolve the issue of the conflicting certifications of the parties.
Defendant requests on remand that we direct that the matter be considered by a different judge. We decline the invitation. The assignment of the matter to a different trial judge for a “fresh look” is not warranted because the trial judge did not make findings concerning either party’s credibility. Brown v. Brown, 348 N.J. Super. 466, 493 (App. Div.), certif. denied, 174 N.J. 193 (2002); J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div.), certif. denied, 158 N.J. 685 (1999).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
1 Although the order only denies plaintiff’s request to have Raymond emancipated, defendant states in her procedural history that, at that time, plaintiff sought the emancipation of Eric as well.