Opinion
DOCKET NO. A-4283-11T2
03-18-2013
THERESA PERRI, f/k/a THERESA SALANDRA, Plaintiff-Respondent, v. ANGELO SALANDRA, Defendant-Appellant.
Joseph M. Weinberg argued the cause for appellant (Weinberg, Kaplan & Smith, P.A., attorneys; Mr. Weinberg, on the briefs). Michael D. Fioretti argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1355-03.
Joseph M. Weinberg argued the cause for appellant (Weinberg, Kaplan & Smith, P.A., attorneys; Mr. Weinberg, on the briefs).
Michael D. Fioretti argued the cause for respondent. PER CURIAM
Defendant Angelo Salandra (husband) appeals from the March 19, 2012 Family Part order reducing his agreed-upon child support from $4000 per month to $2000 per month due to his reduced income. He argues that, although at the time of his divorce he agreed to waive the New Jersey Child Support Guidelines (Guidelines) and disregard the true shared parenting arrangement between the parties, when a downward modification was demonstrated, the judge should have applied the Guidelines. After reviewing the record in light of the contentions advanced on appeal, we affirm.
R. 5:6A.
The parties were married in 1994 and divorced ten years later when their two children were three and five years old. The parties agreed to a property settlement agreement (PSA) that was incorporated into the judgment of divorce. They agreed to four and one-half years of limited duration spousal support from husband to wife at the rate of $2,700 per month. As part of equitable distribution, wife retained the marital home and husband satisfied all existing mortgages and liens, leaving an equity value they estimated at $400,000. Husband retained his new residence, with equity of approximately $38,000, as well as the parties' home in North Carolina, with equity of approximately $363,250. Husband paid wife a sum of $50,000 and wife relinquished all interest in husband's business.
The portions of the PSA that relate to child support state:
2. CHILD SUPPORT BENEFITS:
(a) Support: The Husband shall pay to the Wife, as support for the unemancipated children, unapportioned as between the
children, the sum of $4,000.00 per month, commencing January 1, 2004. This sum has been agreed to by the parties, notwithstanding the custodial arrangement set forth in Paragraph C.1. above, and assumes that the Wife has the children with her on a full-time basis. The support set forth herein is specifically not based upon Husband having the children approximately half the time. The aforementioned support shall be paid by Husband to Wife through the Burlington County Probation Department.
(b) Guideline Waiver: The parties recognize and acknowledge that New Jersey has implemented the Child Support Guidelines, Rule 5:6A. Notwithstanding the implementation of said Rule, the parties have knowingly and voluntarily agreed to deviate from the Child Support Guidelines in consideration of the needs of the children, the standard of living and economic circumstances of each parent, the children's educational needs, the income, assets and earning ability of the children, the Husband's/Wife's responsibility for the support of others, the debts and liabilities of the children and the parties, the equitable distribution of property being received by each of the parties and the payouts on equitable distribution out of current income, the tax consequences of the allocation between the parties of assets and debts, and the need for the creation, either now or in the future, of a trust fund to secure the medical and/or educational expenses of the children. It is acknowledged that the parties agree to maintain their rights to have the amount of child support reviewed consistent with New Jersey law based upon the then existing circumstances of each party.
Husband paid the agreed-upon child support until July 2010. In October 2010, plaintiff Theresa Perri (wife) filed a motion for enforcement of litigant's rights due to husband's failure to make full child support payments. The following month husband filed a cross-motion seeking a reduction of child support due to a reduction in his income. Wife agreed that enforcement by probation would be suspended conditioned on husband paying $1550 per month. The parties agreed to forensic evaluations, depositions and other discovery, with either party free to request a plenary hearing. Ultimately, although they could not agree on an appropriate child support number, neither party requested a plenary hearing.
By that time the monthly child support amount due had increased to $4372 per month due to cost of living increases. See R. 5:6B.
Although arguing that husband still lived a luxurious lifestyle with his new wife and children, wife conceded that husband's income was substantially reduced.
Wife noted that husband was living in a home valued at approximately two million dollars, driving a Mercedes-Benz, has season Eagles tickets, attends Broadway shows, travels and treats his children to lavish gifts.
Judge Domzalski carefully reviewed the discovery furnished to him by the parties. He found that husband's income at the time of the divorce in 2004 was approximately $330,000. Wife was not employed. At the time of the decision in 2012, wife earned approximately $28,000 and also received approximately $2000 in interest income. Thus, she was receiving close to the amount of money as she received under the limited duration alimony outlined in the PSA. Judge Domzalski found her appropriate monthly budget was $4,500 and that she had assets valued at approximately $306,400.
Judge Domzalski determined that husband's annual income from his business grew to $535,000 by 2008. The judge determined that his income in 2009 fell to $207,170, in 2010 it fell to $109,000 and in 2011 it was reduced to $106,000. Considering the last three years and weighing more heavily the final two years, the judge determined that the proper income to consider for husband for the purpose of his child support modification request was $110,000. The judge determined that husband's reasonable budget was $5500 a month. Husband was not paying the mortgage, real estate taxes or insurance on his home. His new wife also contributed income to the household.
Judge Domzalski calculated what the support would be using a shared parenting calculation. He then discussed why he chose not to rely on the Guidelines in determining the appropriate child support, indicating that the parties did not intend to use the Guidelines when they entered into the PSA and it was still not in the children's best interests to have such severely reduced support.
Judge Domzalski supplemented his opinion by a written decision received by us on June 1, 2012. R. 2:5-1(b). He attached the Guidelines' shared parenting worksheet he prepared reflecting a child support obligation of $233 weekly.
--------
Husband argues on appeal that the motion judge abused his discretion by failing to utilize the Guidelines' shared parenting provisions. He also argues that he was entitled to a plenary hearing.
"Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding[,]" and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
When a significant change of financial circumstances or parenting time occurs, the Guidelines should ordinarily be consulted, even if the paying parent originally chose to provide above-Guidelines support. Musico v. Musico, 426 N.J. Super. 276, 279 (Ch. Div. 2012). Rule 5:6A indicates that the Guidelines may be "disregarded by the court only where good cause is shown. Good cause shall consist of . . . the presence of other relevant factors which may make the guidelines inapplicable . . . ." Note 2 to the Guidelines references Rule 5:6A, indicating that the "[G]uidelines must be used as a rebuttable presumption to . . . modify all child support orders." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2541 (2013). Note 3 indicates that "[i]f the court finds that the guidelines are inappropriate in a specific case, it may . . . disregard the guidelines . . . ." Ibid.
Husband relies on the language in the PSA, "that the parties agree to maintain their rights to have the amount of child support reviewed consistent with New Jersey law based upon the then existing circumstances of each party." He views that to mean that the Guidelines' shared parenting calculation is required once circumstances change. In the PSA, child support, however, "is specifically not based upon Husband having the children approximately half the time."
The parties were both represented by counsel who drafted a comprehensive and thoughtful PSA. They agreed New Jersey rather than any other state law would apply in the event of changed circumstances. They did not agree that their two waivers, of shared parenting considerations and use of the Guidelines, would no longer be applicable.
In Musico, when faced with a somewhat similar situation, where the wife waived alimony in favor of increased child support, Judge L.R. Jones laid out a thoughtful way of dealing with modifications after an original agreement to pay above-Guidelines support. He said:
When there is an existing above-guideline agreement followed by an application to reduce child support, a court must not simply apply a rote formula which can lead to inequitable results and damage the financial stability in the children's primary home. Rather, the court must strive for fairness to both parties by carefully considering all of the facts and comparative equities in each particular case. While there may be some cases where equity requires a child support reduction from an above-guideline level down to guideline level, not all cases require such a result.
[Musico, supra, 426 N.J. Super. at 294.]
Judge Domzalski considered the factors listed in Section 2(b) of the parties' PSA, which in large part tracks the language of the child support factors set forth in N.J.S.A. 2A:34-23(a). He explained in detail why he chose to deviate from the Guidelines' shared parenting calculations. We find no abuse of discretion in his determination.
Husband also claims that he was deprived of a plenary hearing. The parties agreed in a January 18, 2011 consent order that after conducting discovery and a settlement conference attended by their accountants, "[i]f no resolution is possible, then the parties may request a plenary hearing." Neither party requested a hearing and Judge Domzalski noted in his oral opinion that, "it was agreed that the parties would submit the issue to the Court by way of certifications and other proofs in lieu of a plenary hearing." Wife conceded that husband had suffered a significant diminution of his income and a modification of child support was appropriate. The primary issue before the court was the legal issue of whether good cause existed not to apply the Guidelines' shared parenting calculations. Under these circumstances, we find no abuse of discretion in not holding a plenary hearing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION