Opinion
DOCKET NO. A-5710-10T4
07-10-2012
LISA BUSSO, n/k/a LISA BUSSO-RAGLIEVICH, Plaintiff-Respondent/ Cross-Appellant, v. ANDREW BUSSO, JR., Defendant-Appellant/ Cross-Respondent.
Anthony T. Colasanti, attorney for appellant/cross-respondent (Mr. Colasanti and Karen A. Ermel, on the briefs). Jacobowitz, Defino & Latimer, P.C., attorneys for respondent/cross-appellant (Benjamin M. Hoffman, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Hayden.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0423-99.
Anthony T. Colasanti, attorney for appellant/cross-respondent (Mr. Colasanti and Karen A. Ermel, on the briefs).
Jacobowitz, Defino & Latimer, P.C., attorneys for respondent/cross-appellant (Benjamin M. Hoffman, on the briefs). PER CURIAM
In this matrimonial matter, defendant Andrew Busso, Jr. appeals, and plaintiff Lisa Busso cross-appeals, from various parts of the July 6 and 12, 2011 Family Part orders relating to child support and other issues. We affirm in part, reverse in part, and remand for further proceedings.
The parties were married in May 1990, and have a daughter, Mary, born in 1996. A final judgment of divorce, entered on December 16, 1998, incorporated the parties' November 19, 1998 Property Settlement Agreement (PSA). The PSA required defendant to pay child support directly to plaintiff in the lump sum of $70,000 per year. The parties calculated the child support amount based on defendant's $400,000 yearly income, and plaintiff's $20,000 yearly imputed income. Although the PSA required defendant to pay child support by January 1 of each year, for thirteen years he paid it within the month of February, after he received his employment bonus.
This name is fictitious. We use it to protect the daughter's privacy.
The PSA also required defendant to maintain a $500,000 life insurance policy naming Mary as the beneficiary, and execute an authorization permitting plaintiff to obtain information about the policy from the insurer. Paragraphs 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9 of the PSA required the parties to, in part, confer with each other on matters relating to Mary's health, safety, education and general welfare; notify each other of any illness or other matters affecting Mary and her welfare; keep each other informed of Mary's whereabouts when with the other parent; exert reasonable efforts to maintain free and unhampered contact with Mary, foster a feeling of affection between Mary and each parent, and do nothing to estrange her from the other parent; consult with each other on Mary's education, religious training, summer camp selection, and non-emergent illnesses and operations; and advise the other parent of the address and telephone number where Mary could be reached during an extended vacation. In addition, each parent was entitled to information from Mary's medical providers, school and teachers.
Defendant re-married in 2000, and has four children from that marriage. Plaintiff remarried in 2002, and has no children from that marriage.
In April 2011, plaintiff filed a motion seeking various forms of relief. Pertinent to this appeal are her requests for an order increasing child support and compelling defendant to (1) pay child support through the probation department; (2) execute an insurance authorization, as the PSA required; (3) execute documents for Mary's passport renewal; and (4) speak directly to her via telephone about issues regarding Mary, and prohibit his new wife from speaking to plaintiff about these issues.
Defendant filed a cross-motion also seeking various forms of relief. Pertinent to this appeal is his request for a recalculation of child support based on changed circumstances, taking into account an "other-dependent deduction" for his four children, and imputing income to plaintiff. Defendant also sought an order holding plaintiff in violation of litigant's rights for failing to comply with the PSA paragraphs regarding communications concerning Mary. He asserted that plaintiff failed to notify him of a health issue that required Mary to have surgery, Mary's Confirmation, her enrollment in private school, where plaintiff takes her on vacation, and plaintiff never provided Mary's school reports or other school information to him.
In a July 6, 2011 written opinion and order, the trial judge denied plaintiff's request to compel defendant to pay child support through the probation department. The judge found that the parties had "a unique child support payment arrangement" whereby defendant made a yearly payment directly to plaintiff around the time he received an annual employment bonus, and he had made the payments around February 15 each year "without fail from 1999 through 2011."
Without explanation, the judge denied plaintiff's request to compel defendant to speak directly to her via telephone about issues regarding Mary and prohibiting his wife from speaking to her about these issues, and to execute the insurance authorization. Also without explanation, the judge held that the passport issue had been resolved, and granted defendant's request to hold plaintiff in violation of litigant's rights for violating the PSA paragraphs regarding communications concerning Mary. The judge reserved decision on the child support issue, and ordered the parties to exchange certain limited discovery.
Thereafter, plaintiff submitted a letter brief arguing that the judge should increase child support to $100,000 per year because defendant's yearly income had substantially increased from the $400,000 utilized to calculate child support in November 1998, while her $20,000 imputed yearly income had decreased below $20,000 per year. Plaintiff also submitted a list of expenses for which she claimed the "additional support would be utilized."
As per defendant's income tax returns, defendant had a total income of over $1.3 million in 2008 and 2009, and over $900,000 in 2010.
As per plaintiff's W-2's, she earned over $7000 in 2009 and over $7500 in 2010.
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Defendant countered that plaintiff was intentionally underemployed and the increase she sought included expenses the PSA required her to pay. He also argued that each of his children should be supported equally, the judge should consider his four children from his current marriage as well as Mary when determining an appropriate child support amount, and child support should be reduced to $40,000 per year.
In a July 12, 2011 order, the judge increased child support to $97,200 "payable once every year on or before March 1, based upon the rate of inflation from 1998 up to and including 2011 (Bureau of Labor Statistics web inflation calculator, found at http://www.bls.gov/data/inflation_calculator.htm)." The judge ordered defendant to pay interest of $81 per month and a sanction of $500 per day for any payment made after March 1. Without explanation, the judge denied all other relief the parties sought, including defendant's request for an "other dependent deduction" for his four children, and to impute income to plaintiff. This appeal and cross-appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE FAMILY PART'S DECISION IS NOT SUPPORTED BY ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW.
POINT II
THE FAMILY PART'S USE OF THE RATE OF INFLATION AS THE SOLE MEANS BY WHICH IT RECALCULATED DEFENDANT'S CHILD SUPPORT OBLIGATION WAS AN ABUSE OF DISCRETION.
POINT III
THE FAMILY PART'S FAILURE TO CONSIDER PLAINTIFF'S INCOME IN THE RECALCULATION OF DEFENDANT'S CHILD SUPPORT OBLIGATION WAS AN ABUSE OF DISCRETION.
POINT IV
THE FAMILY PART'S FAILURE TO CONSIDER ALL OF DEFENDANT'S CHILDREN WHEN RECALCULATING [] DEFENDANT'S CHILD SUPPORT OBLIGATION FOR THE PARTIES' CHILD WAS AN ABUSE OF DISCRETION.
On cross-appeal, plaintiff raises the following contentions:
POINT I
THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S REQUEST TO COMPEL THE DEFENDANT TO PAY HIS CHILD SUPPORT OBLIGATION THROUGH THE APPROPRIATE PROBATION DEPARTMENT AS NEW JERSEY COURT RULE [5:7-4(b)] SPECIFICALLY REFERENCES THAT UPON THE PAYEE[']S REQUEST UNLESS GOOD CAUSE IS SHOWN TO THE CONTRARY THE PAYEE HAS THE RIGHT FOR THE SUPPORT TO BE PAID THROUGH THE PROBATION DEPARTMENT AND THE DEFENDANT DID NOT DEMONSTRATE ANY GOOD CAUSE TO THE CONTRARY[.] ALSO THE PARTIES['] AGREEMENT FURTHER ADDRESSES THE INVOLVEMENT OF THE PROBATION DEPARTMENT.
POINT II
THE TRIAL COURT'S DECISION TO DENY THE PLAINTIFF'S REQUEST TO COMPEL THE DEFENDANT TO EXECUTE AN
AUTHORIZATION IN FAVOR OF THE PLAINTIFF AS IT RELATES TO THE DEFENDANT'S LIFE INSURANCE POLICY WAS NOT SUPPORTED BY ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW[.] FURTHERMORE[,] THE PARTIES' PROPERTY SETTLEMENT AGREEMENT SPECIFICALLY SETS FORTH IN ARTICLE VIII, PARAGRAPH 8.3 THAT THE DEFENDAN[T] WOULD SIGN AN EXECUTED AUTHORIZATION.
POINT III
THE TRIAL COURT ERRED WHEN IT SET FORTH THAT THE ISSUE REGARDING THE DEFENDANT FILLING OUT AND EXECUTING ALL NECESSARY PASSPORT RENEWAL PAPERWORK FOR THE PARTIES' DAUGHTER, [MARY], WAS RESOLVED, AS THERE WAS NO EVIDENCE OR DOCUMENTATION WHICH WOULD SHOW THAT THE ISSUE WAS RESOLVED.
POINT IV
THE TRIAL COURT DID NOT MAKE ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW AS IT RELATED TO ITS DECISION TO DENY THE PLAINTIFF'S REQUEST TO COMPEL THE DEFENDANT TO SPEAK DIRECTLY TO THE PLAINTIFF VIA TELEPHONE REGARDING ISSUES PERTAINING TO THE PARTIES' DAUGHTER[,] AS WELL AS DENYING THE PLAINTIFF'S REQUEST TO COMPEL THE DEFENDANT TO SPEAK DIRECTLY TO THE PLAINTIFF REGARDING [ISSUES] PERTAINING TO THE PARTIES' DAUGHTER INSTEAD OF THE DEFENDANT'S WIFE HAVING SAID CONVERSATIONS WITH THE PLAINTIFF.
POINT V
THE TRIAL COURT'S MEMORANDUM DECISION DATED JULY 6, 2011 WAS NOT SUPPORTED WITH ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW AS IT RELATES TO HOLDING THE PLAINTIFF IN VIOLATION OF LITIGANT'S RIGHTS FOR FAILURE TO COMPLY WITH PARAGRAPHS [3.1, 3.2, 3.3, 3.4, 3.5, 3.6, AND 3.9] OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT.
Following the filing of the parties' merits briefs, on January 19, 2012, the judge submitted an amplification of her opinion pursuant to Rule 2:5-1(b). The judge explained that because defendant's income exceeded the maximum annual income of $187,200 for child support calculation under the Child Support Guidelines (Guidelines), she had to supplement the Guidelines with a discretionary amount based on the remaining family income, and the factors set forth in N.J.S.A. 2A:34-23(a), which she did not specify or analyze. The judge determined that child support should remain at $70,000, but that plaintiff was entitled to the same buying power that this sum represented in 1998 as it does in 2011. The judge used the Bureau of Labor Statistics web inflation calculator to arrive at the $97,200 figure "based upon the rate of inflation from 1998 up to and including 2011."
The judge rejected defendant's request to reduce child support to $40,000 per year, finding that he had made a commitment to support Mary well above the Guidelines, there had never been a cost of living increase, and Mary's expenses, which the judge did not specify, had increased. The judge also found "that it would be unfair to reduce defendant's child support obligation by almost 50% where his income has in recent years exceeded $1 million and in other years was more than 150% above what he earned in 1998[,]" and that Mary was entitled to benefit from her father's financial achievements.
The judge found that the passport issue had been resolved because defendant had certified that he would execute any form needed for Mary's passport. The judge found she had no jurisdiction over defendant's new wife, and it was "unreasonable for the court to order defendant's new wife never to answer the telephone in her own house if defendant is not home." The judge also found that is was unnecessary to order defendant to execute insurance authorizations because he had provided proof that he continuously maintained life insurance for Mary, and had been ordered by the court to continue providing such proof each year.
The judge found plaintiff in violation of litigant's rights based on evidence that she did not advise defendant on matters concerning Mary's education, health and well-being. In particular, without consulting defendant, plaintiff enrolled Mary in a Catholic high school and had made arrangements for the child to have non-emergency medical treatment.
Addressing the judge's amplification, defendant further contends in his reply brief that the judge did not rectify her failure in the July 12, 2011 opinion to make factual findings and legal conclusions, or provide an adequate explanation for her decision to increase child support and use of the inflation rate rather than the Guidelines to calculate child support. Defendant also contends that the judge erred in recalculating child support utilizing the inflation rate rather than the Guidelines, and failing to consider the N.J.S.A. 2A:34-23(a) factors, an "other dependent deduction," and the imputation of income to plaintiff.
In her reply brief, plaintiff further contends that the judge did not explain in her amplification why she deviated from the PSA provision requiring defendant to provide an insurance authorization.
I.
We first address defendant's contentions relating to the child support issue. Rule 5:6A states that the Guidelines "shall be applied when an application to establish or modify child support is considered by the court." In its discretion, the trial court can modify or disregard the Guidelines only when good cause is shown. R. 5:6A. In addition, "[i]f the support [G]uidelines are not applied in a specific case or the [G]uidelines-based award is adjusted, the reason for the deviation and the amount of the [G]uidelines-based award (before any adjustment) must be specified in writing on the [G]uidelines worksheet or in the support order." Pressler & Verniero, Current N.J. Court Rules, comment 3 on Appendix IX-A at 2495 (2012).
When a parent's income exceeds the maximum amount listed in the Guidelines (currently $187,200), the court must apply the Guidelines up to $187,200, and then determine whether any supplementary award is appropriate. Connell v. Connell, 313 N.J. Super. 426, 431 (App. Div. 1998); Pressler & Verniero, supra, comment 20 on Appendix IX-A at 2514-15. In cases where the court decides to award a supplementary amount of child support above the Guidelines amount, the court must consider the factors listed in N.J.S.A. 2A:34-23(a). Connell, supra, 313 N.J. Super. at 431. These factors include, but are not limited to:
(1) Needs of the child;Thus, the maximum Guidelines award "represents the minimum award for families with net incomes of more than $187,200 per year," and any award above that amount should be "based on the remaining family income (i.e., income in excess of $187,200) and the factors specified in N.J.S.A. 2A:34-23." Pressler & Verniero, supra, comment 20 on Appendix IX-A at 2515.
(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.
[N.J.S.A. 2A:34-23(a).]
"In the context of high-income parents whose ability to pay 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.'" Strahan v. Strahan, 402 N.J. Super. 298, 307 (App. Div. 2008) (quoting Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002)). To determine the needs of a child in a high-income family,
a balance must be struck between reasonable needs, which reflect lifestyle opportunities, while at the same time precluding an inappropriate windfall to the child or even in some cases infringing on the legitimate right of either parent to determine the appropriate lifestyle of a child. This latter consideration involves a careful balancing of interests reflecting that a child's entitlement to share in a parent's good fortune does not deprive either parent of the right to participate in the development of an appropriate value system for a child. This is a critical tension that may develop between competing parents. Ultimately, the needs of a child in such circumstances also calls to the fore the best interests of a child.
[Isaacson, supra, 348 N.J. Super. at 582 (internal citations omitted).]
In addition, both parents have an obligation to support their children. Koelble v. Koelble, 261 N.J. Super. 190, 194 (App. Div. 1992). Consequently, "when a parent, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that parent to provide for the child's needs." Caplan v. Caplan, 182 N.J. 250, 268 (2005). "The determination of imputed income shall not be based on the gender or custodial position of the parent." Pressler & Verniero, supra, comment 12 on Appendix IX-A at 2505. Thus, in creating a child support award, a court must consider the income of both the custodial and non-custodial parents, and determine whether their earning potential is being met. See Strahan, supra, 402 N.J. Super. at 312-313; Larrison v. Larrison, 392 N.J. Super. 1, 20-21 (App. Div. 2007).
Further, "[t]he other-dependent deduction is part of an adjustment mechanism to apportion a parent's income to all legal dependents including those born before or after the children for whom support is being determined." Pressler & Verniero, supra, Appendix IX-B at 2528. "[W]here a divorced parent remarries and has children, that parent's income should be shared by all children born to that parent." Schwarz v. Schwarz, 328 N.J. Super. 275, 283 (App. Div. 2000). The Guidelines specify that the following principles apply when the court is considering whether to apply the deduction:
(1) this adjustment shall be used only if requested by a serial-family parent and the income, if any, of the other parent of the secondary family is provided to the court;The trial judge is obligated "to make sufficient findings of fact, particularly where [a party] was facially entitled to an other-dependent deduction under the [G]uidelines." Schwarz, supra, 328 N.J. Super. at 284.
(2) if the other parent in the secondary family is voluntarily unemployed or underemployed, the court shall impute income to that person . . . to determine the serial family parent's obligation to the children in the secondary family;
(3) this adjustment may be applied to other dependents born before or after the child for whom support is being determined;
(4) this adjustment may be requested by either or both parents (custodial and/or non-custodial);
(5) the adjustment may be applied when the initial award is entered or during subsequent modifications of the support order.
[Pressler & Verniero, supra, comment 10 on Appendix IX-A at 2503.]
"[T]he trial courts have discretion in determining child support. The key to both the Guidelines and the statutory factors is flexibility and the best interest of children." Pascale v. Pascale, 140 N.J. 583, 594 (1995). A trial judge has abused his or her discretion when he or she "did not consider all of the controlling legal principles." Avery v. Avery, 209 N.J. Super. 155, 163 (App. Div. 1986). Applying these standards, we conclude that the judge mistakenly exercised her discretion in increasing child support. First, the judge failed to comply with the Guidelines up to the maximum award, and analyze the factors listed in N.J.S.A. 2A:34-23(a) to calculate an appropriate supplementary award. See Strahan, supra, 4 02 N.J. Super. at 309-10 (applying the Guidelines up to a certain income amount and finding the trial court should have linked any supplemental amount to the needs of the child); Isaacson, supra, 348 N.J. Super. at 580 (stating that "[a]ny increase in a child support award must be made after consideration of the relevant statutory criteria for such award pursuant to N.J.S.A. 2A:34-23(a)"); see also Caplan, supra, 182 N.J. at 266. Although child support of $97,200 per year may be an appropriate amount, considering defendant's income, the judge did not specify Mary's needs and expenses, or consider any of the other N.J.S.A. 2A:34-23(a) factors. Aside from generally mentioning that Mary's "expenses have increased," the judge made no reference to any particular expenses, or why defendant's child support obligation must be a particular amount in order to satisfy these needs and expenses. See Strahan, supra, 402 N.J. Super. at 310 (reversing child support award when the trial court "merely repeated defendant's recitation of the children's 'needs' as they appeared on her case information statement . . . without any determination of what was essential or non-essential or any judgment regarding the accuracy or appropriateness of those needs").
Second, the parties had calculated child support based on defendant's $400,000 per year income and plaintiff's $20,000 per year imputed income. In 2009, plaintiff earned $7474, and she earned $7590 in 2010 from her employment as a lunch aide at a public school. The judge did not refer to plaintiff's income in setting the new child support amount. Even assuming the judge chose to continue to impute income to plaintiff at $20,000 per year, she did not say so. See Larrison, supra, 392 N.J. Super. at 20 ("After determining the income of each parent, the trial court must use the [G]uidelines worksheet to calculate the exact amount of the child support order." (emphasis added)). N.J.S.A. 2A:34-23(a)(3) and (4) further required the judge to consider "[a]ll sources of income and assets of each parent" and the "[e]arning ability of each parent." The judge did not consider these factors.
Finally, in the July 6, 2011 decision, the judge reserved decision on whether to allow defendant to claim the "other-dependent deduction." However, in the July 12, 2011 decision, the judge did not specifically discuss the "other dependent deduction," but instead denied it without making any factual findings or legal conclusions or providing an explanation. In determining whether modifying child support was appropriate, the judge should have considered the complete financial landscape of both parties, which includes an analysis of the financial circumstances of their new spouses and their obligations to support other children.
Accordingly, we reverse the July 6 and 12, 2011 orders as to child support, and remand for reconsideration of this issue. The parties shall submit an updated Case Information Statement along with all financial and other documentation necessary for the court to determine the child support issue.
II.
On cross-appeal, plaintiff contends that the judge erred in failing to abide by the PSA provision requiring defendant to execute insurance authorizations, in finding that the passport issue was resolved, and in holding her in violation of litigant's rights. We agree with these contentions.
"Settlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Although findings of the family court are generally entitled to particular deference, we will not afford such deference when the trial court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (internal quotation omitted); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); see also Pressler & Verniero, supra, comment 6.2 on R. 2:10-2.
The PSA required defendant to provide an insurance authorization to plaintiff, and proof of insurance. These two provisions are distinct, and defendant's compliance with one does not compel a finding of compliance with the other. Because the terms of the PSA are clear, and defendant did not comply with the authorization provision, the judge erred by denying plaintiff's request to compel defendant to execute the authorization.
In addition, there was a factual dispute between the parties as to whether the passport issue was resolved, and as to who was at fault for the alleged lack of communication between the parties about Mary's health, well-being and education. The judge held no plenary hearing, and made no factual findings or legal conclusions on these issues. Thus, there is no substantial credible evidence in the record supporting the judge's decision on these issues. Cesare, supra 154 N.J. at 411-12. Accordingly, we reverse the July 6 and 12, 2011 orders as to these issues, and remand for a plenary hearing on these issues, and for the judge to make findings of fact and conclusions of law.
III.
Plaintiff also contends on cross-appeal that the judge erred in failing to compel defendant to pay child support through the probation department, compel defendant to speak directly to her via telephone about issues regarding Mary, and prohibit his new wife from speaking to her about these issues.
We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the judge in her July 6, 2011 decision and January 19, 2012 amplification.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION