Opinion
DOCKET NO. A-5102-13T1
04-27-2016
JILL MADONNA, Plaintiff-Respondent, v. ALEXANDER MADONNA, Defendant-Appellant.
Rebel Brown Law Group, L.L.C., attorneys for appellant (Kourtney A. Borchers, on the brief). Corinne Campi, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0276-09. Rebel Brown Law Group, L.L.C., attorneys for appellant (Kourtney A. Borchers, on the brief). Corinne Campi, attorney for respondent. PER CURIAM
Defendant Alexander Madonna appeals from certain provisions of the Family Part's March 12 and April 10, 2014 orders (the March 2014 and April 2014 orders, respectively) and the two orders that followed denying reconsideration. For the following reasons, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
I.
Plaintiff and defendant are the parents of four children. A final judgment of divorce (JOD) was entered on July 2, 2009, which incorporated the parties' property settlement agreement (PSA). Plaintiff was designated the parent of primary residence for all the children.
Pursuant to the child support provisions of the PSA, defendant agreed to pay $171 per week in child support. The PSA expressly stated that the agreement was "based upon [defendant's] earnings of approximately $88,000 a year gross and [plaintiff's] earnings of approximately $60,000 a year gross." The PSA also provided that "[defendant] historically has received a bonus in addition to his salary. [Plaintiff] shall receive [twenty percent] of the bonus each year beginning in [2009]. [Defendant] will provide [plaintiff] with proofs upon receipt." The PSA further provided that child support would be subject to review "every three years, as each child graduates from high school, as one child is emancipated, or upon a showing of substantial changed circumstances . . . . Child support is also subject to COLA increases every two years."
The parties waived alimony and also agreed to share unreimbursed medical expenses, with plaintiff responsible for the first $250 per child and forty percent of the costs thereafter, and defendant responsible for sixty percent. Extra-curricular expenses for the children were to be shared in the same percentages. Each party agreed to be solely responsible for any debt or obligation that was in their name.
On October 21, 2013, plaintiff filed a motion to enforce litigant's rights, alleging that defendant failed to pay a percentage of his bonus, as well as other expenses for the children. Defendant filed opposition and cross-moved for other relief.
Specifically, defendant asserted that a significant change in circumstances warranted a downward modification of both his weekly child support amount and his annual obligation to pay twenty percent of his bonus. Defendant stated that the parties' oldest child had recently become emancipated, and the parties' son was now in the sole care and custody of defendant. Further, defendant claimed that he was exercising substantial parenting time with the parties' two other children.
Following oral argument, the judge entered an order that in paragraph 11 declared the parties' oldest child emancipated as of the filing date of the motion — October 2013, and recalculated defendant's child support obligations in accordance with the Guidelines and "the parenting time schedule in place between the parties." Applying the parenting support guidelines and worksheets, the judge ordered defendant to pay $57 per week, explaining that defendant's weekly obligation of $198 was offset by plaintiff's weekly obligation of $141.
In paragraph 2(c), the judge ordered defendant to pay plaintiff twenty percent of his 2012 and 2013 bonuses, and in paragraph 12, the judge rejected defendant's argument that he was no longer required to pay twenty percent, since one child was emancipated and another was residing with him. The judge stated the "PSA remains enforceable," and citing Graziano v. Grant, 326 N.J. Super. 328 (App. Div. 1999), and Aarvig v. Aarvig, 248 N.J. Super. 181, 185 (Ch. Div. 1991), held that the court would not create a new or better agreement for the parties.
In paragraphs 2(g) and 2(h) of the March 2014 order, the judge reserved decision on plaintiff's request for reimbursement of medical expenses and extracurricular activities, permitting plaintiff to submit greater detail. And, in paragraph 9, the judge awarded plaintiff $1,430 in counsel fees.
Defendant moved for reconsideration of those provisions of the March 2014 order regarding his bonus and the calculation of his new weekly support obligation. By order dated June 4, 2014, the judge denied those requests. Additionally, in the interim, the judge considered further documentation plaintiff furnished regarding reimbursement for the children's medical and extracurricular activities. She entered the April 2014 order requiring defendant to reimburse plaintiff. In response, defendant filed another motion for reconsideration of these awards, which the judge denied on June 9, 2014.
II.
A.
Defendant argues that the judge erred by concluding he was obligated to pay twenty percent of his annual bonus to plaintiff as child support, given the significant changed circumstances — his eldest daughter's emancipation and defendant's assumption of custody of his son. He notes that the judge found these changes warranted modification of the weekly support payments, and, since the annual bonus payment was part of defendant's overall child support obligation, the percentage of his bonus he was required to contribute should also have been modified downward.
Plaintiff argues that pursuant to a November 2010 order, defendant was required to pay twenty percent of the bonus he received in 2011 "and in all subsequent years." She contends that the parties' oldest daughter was not declared emancipated until October 2013, and it is undisputed that as of July 2010, the parties' son was already living with defendant. Therefore, plaintiff argues defendant failed to show any change of circumstances after the November 2010 order and prior to the motion, and, by application of the "law of the case" doctrine or res judicata, the judge properly ordered defendant to pay 20% of the bonus for years 2012 and 2013. Finally, plaintiff argues the judge's interpretation of the PSA provisions was correct.
"'When reviewing decisions granting or denying applications to modify child support, we examine whether, given the facts, the trial judge abused his or her discretion.'" J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). Given our policy of favoring consensual agreements to resolve marital controversies, "PSAs should be enforced according to the original intent of the parties." Id. at 326 (citing Pacifico v. Pacifico, 190 N.J. 258, 266 (2007)). Nevertheless, courts retain the inherent equitable power to modify agreements reached by the parties. Ibid.
"When a party to a comprehensive negotiated PSA seeks to modify any support obligation, that party must meet the threshold standard of changed circumstances." Id. at 327 (citing Lepis v. Lepis, 83 N.J. 139, 146-48 (1980)). "Changed circumstances are not confined to events unknown or unanticipated at the time of the agreement." Ibid. (citing Dolce v. Dolce, 383 N.J. Super. 11, 19 (App. Div. 2006)). However, "care must be taken not to upset the reasonable expectations of the parties," and "[w]hen a PSA addresses the changed circumstance, modification of the PSA may not be equitable or fair." Ibid.
In some instances, the parties will acknowledge the existence of certain facts, express a desire to meet the needs of a child, or fashion a solution to the acknowledged issues but defer the resolution of these issues until a later date. In such a situation, the changed circumstances standard does not operate as a threshold barrier to address the motion before the court; the guiding principle for consideration of the motion is the best interests of the child.
[Ibid.]
Applying these principles to this case, we believe the judge mistakenly concluded that modification of the PSA's child support provisions governing defendant's bonus was unwarranted. It is clear that construing the PSA as a whole, the parties intended that defendant's support obligation would include both weekly support and a percentage of his annual bonus. Moreover, the language of the PSA reflected the parties' agreement to review the child support "every three years, as each child graduate[d] from high school, as one child [wa]s emancipated, or upon a showing of substantial changed circumstances."
Having said that, we affirm paragraph 2(c) of the March 2014 order, which required defendant to pay plaintiff 20% of his bonus for 2012 and 2013. The emancipation of a child was an event that the parties anticipated would compel review of the PSA's child support terms and generally results in termination of a parent's support obligation. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). However, defendant did not secure a legal determination that his oldest daughter was emancipated until he filed his cross-motion. Although the parties seemingly admitted that their son was residing with defendant since sometime in 2010, a downward modification on that score was similarly limited to the date defendant sought relief by his cross-motion. See 2A:17-56.2a ("No payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed . . ."). We agree with plaintiff that defendant was not entitled to be relieved of his obligations in 2012 and 2013, and so we affirm paragraph 2(c) of the March 2014 order.
However, defendant had also argued that the PSA's use of twenty percent of his bonus reflected equal amounts of five percent per child, and, since the judge found one child was emancipated and the other was now living with him, he should only be required to pay, at most, ten percent of his annual bonus. The judge rejected this, concluding, as noted, that the PSA was silent on the issue and the court would not "make a better contract for the parties, or to supply terms that have not been agreed upon." Graziano, supra, 326 N.J. Super. at 342.
When she denied defendant's motion for reconsideration, the judge wrote:
While [the oldest child's] emancipation and [the parties' son's] change of residence . . . constitutes substantial changed circumstances warranting modification of his child support obligation, the Court [does not find] a basis to reconsider its prior decision regarding the bonus. Furthermore, this Court [does not find] that defendant's bonus was negotiated to allocate [five percent] of defendant's bonus to each child. This Court [finds] that the bonus was negotiated to provide the children with additional support. [The parties' son] lives with defendant and, thus, is able to share in the remaining 80% of defendant's bonus.
Reconsideration is left to the sound discretion of the court and "is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion[.]" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). However, in the interests of justice, reconsideration is warranted when the court "expressed its decision based upon a palpably incorrect or irrational basis." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Here reconsideration was appropriate.
As already noted, the PSA's child support provisions incorporated a percentage of defendant's annual bonus, not as a stand-alone provision, but as part and parcel of a total package. The PSA anticipated review of defendant's support obligations, not only periodically, but when other events occurred, e.g., emancipation and changed circumstances. The judge found both in this case, yet she failed to consider modification. Additionally, we cannot discern the rationale behind the last sentence quoted above. Defendant's son surely would benefit from the eighty percent of the bonus defendant retained, but in light of changed circumstances, defendant may be entitled to retain more and better meet the support obligations imposed by having his son in residence.
We therefore reverse paragraph 11 of the March 2014 order, and paragraph 1 and paragraph 3 (to the extent it referred to paragraph one) of the June 4, 2014 order on reconsideration. We hasten to add, however, that our decision should not be construed as accepting defendant's assertion that he is automatically entitled to a five-percent-per-child reduction. "[T]he guiding principle for consideration of the motion is the best interests of the child. That same principle informs consideration of a motion to modify a negotiated comprehensive PSA once the party seeking modification demonstrates changed circumstances." J.B., supra, 215 at 327-28. On remand, the court shall consider whether the unemancipated children's best interests are served by a downward modification of defendant's child support obligation as reflected in his annual bonus contribution, and if so, in what amount.
B.
We next consider defendant's argument that it was error for the judge to use the sole parenting worksheet to compute the support obligation for his two youngest children, because the amount of overnight parenting time he exercised compelled use of the shared parenting worksheet. Plaintiff counters by arguing that the shared parenting worksheet is not "presumptive," and the judge's factual determinations were supported by the record.
In paragraph 11 of the March 2014 order, the judge failed to explain why she used the sole parenting worksheet to calculate defendant's new weekly support amount for the two youngest children residing with plaintiff. Plaintiff had actually argued that the PSA's assumed $60,000 yearly income was no longer valid, since she had lost her job and was now earning $36,000 per year. But, the judge rejected that as a changed circumstance, finding plaintiff "provided no evidence that she was unable to secure a job earning at least as much [as] indicated in the PSA."
When defendant moved for reconsideration, the judge noted that the use of a shared parenting worksheet was "not presumptive." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at www.gannlaw.com at 15 (2016). The judge concluded "it would be inappropriate, in this case, to subtract a sole child support guideline from a shared child support guideline." The judge's decision was "bolstered" by the fact that she imputed $60,000 in income to plaintiff even though she was currently earning much less.
"The trial court has substantial discretion in making a child support award. . . . If consistent with the law, such an award 'will not be disturbed unless it is "manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice."'" Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001) (citations omitted) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)). Child support awards, including modifications, shall be made in accordance with the guidelines, and supplemented with consideration of the statutory factors contained in N.J.S.A. 2A:34-23. Pascale v. Pascale, 140 N.J. 583, 593 (1995). However, "'[t]he key to both the [g]uidelines and the statutory factors is flexibility and the best interest of children.'" Caplan v. Caplan, 182 N.J. 250, 266 (2005) (alterations in original) (quoting Pascale, supra, 140 N.J. at 594).
"Although th[e] guidelines are designed to accommodate shared-parenting arrangements when appropriate, shared-parenting adjustments or awards are not presumptive, but are subject to the discretion of the court[.]" Child Support Guidelines, supra, at 15.
Unless the parties otherwise agree, the final child support order shall not be based on a calculated shared-parenting award if:
(1) the PPR's weekly household net income (including means-tested income such as TANF and the net income of other adults living in the household) plus the shared-parenting child support award is less than two times the U.S. poverty guideline for the number of persons in the household (PPR household income thresholds are shown in the table below); or
(2) in any case, the court finds that the net income of the primary household remaining after the calculation of the shared-parenting award is not sufficient to maintain the household for the child. When evaluating the adequacy of the primary household's total income, the court shall consider the cost of living in the region where the child resides (e.g., the average cost of housing, food, and transportation).
When determining the PPR's household income to evaluate the primary household income threshold, the court may impute income to the PPR in accordance with Appendix IX-A, paragraph 12.
[Id. at 16.]"If a shared-parenting award is inappropriate due to the PPR's limited household income, a sole-custody award shall be calculated." Id. at 17.
Here, plaintiff's income was substantially less than it was when the PSA was negotiated and substantially less than defendant's income. Although the judge did not specifically so find, plaintiff's actual income was either less than or close to two times the national poverty line, i.e., a level that pursuant to the guidelines mitigates against a shared parenting calculation. Additionally, one of the parties' two youngest children had special needs. The use of the shared parenting guidelines are not presumptive, and the judge did not mistakenly exercise her discretion when she chose not to use the worksheet. We affirm paragraph 11 of the March 2014 order and the denial of defendant's motion for reconsideration in this regard.
C.
Defendant argues that the judge erred by reserving decision on plaintiff's application for reimbursement of certain childcare expenses, paragraphs 2(g) and (h) of the March 2014 order, permitting plaintiff to supplement her proofs and then granting the requested relief in paragraphs 1 and 2 of the April 2014 order. Defendant further contends that the supplemental proofs were insufficient and did not comply with the judge's prior order. We find no basis to disturb the exercise of the judge's discretion.
In the March 2014 order, the judge ordered plaintiff to resubmit her proofs of these expenses to defendant and the court. The order further provided, "[t]hereafter defendant shall pay those expenses or submit a cogent objection to the [c]ourt [ten] days after his receipt." It is undisputed that defendant lodged no objection prior to the April 2014 order. Instead, he filed a second motion for reconsideration on May 5, 2014, alleging he had insufficient time to contest the documentation.
The judge reasoned that defendant had ample time to object prior to entry of the order but failed to do so. She concluded that he waived his right to object. We find no reason to disagree. Therefore, we affirm paragraphs 2(g) and 2(h) of the March 2014 order, paragraphs 1 and 2 of the April 2014 order and the provisions of the order denying reconsideration of same.
Defendant next argues that the judge erred by denying, in paragraphs 15 and 16 of the March 2014 order, his request to enforce the PSA and require plaintiff to reimburse him for debts incurred on an American Express credit account. We refuse to consider the issue.
Defendant's notice of appeal seeks review of eighteen provisions of four orders. As plaintiff correctly points out, the notice of appeal did not seek review of these two provisions of the March 2014 order. "Since it is clear that it is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review, . . . defendant has no right to our consideration of this issue." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citation omitted).
Lastly, defendant contends that the award of counsel fees to plaintiff in paragraph 9 of the March 2014 order should be vacated because the judge failed to make specific findings as to the factors set forth in Rule 5:3-5(c). In her written statement of reasons, the judge concluded an award was appropriate because "defendant failed to provide to plaintiff [twenty percent] of his bonus which relates to child support, and she had to file this motion to enforce this provision." The judge cited N.J.S.A. 2A:34-23a, which provides:
The notice of appeal cites to provisions of the June 9, 2014 order denying defendant's second motion for reconsideration that denied his request for counsel fees, and ordered the parties to mediate any dispute prior to filing further motions. Defendant's brief does not address these issues. An issue that is not briefed is deemed waived upon appeal. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). --------
If a party in any action to enforce and collect child support ordered by a court pursuant to the provisions of N.J.S.[A.] 2A:34-23 has incurred counsel fees, the court shall require the defaulting party to pay those counsel fees unless the court finds that the default was substantially justified or that other circumstances make an award of counsel fees unjust.
[Ibid.]
"We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). See also Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999) (an award of an attorney's fee will only be reversed when the award is "so wide of the mark as to constitute a mistaken exercise of discretion").
The judge was aware of prior successful enforcement motions brought by plaintiff. Although we disagree with the judge's reasoning regarding defendant's support obligations going forward, we have affirmed her order regarding the bonus payment contributions for the two years at issue. Defendant does not argue, nor could he, that the modest fee award granted plaintiff was unreasonable. We therefore affirm paragraph 9 of the March 2014 order.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION