Opinion
DOCKET NO. A-2892-14T4
06-16-2016
DIANE SCHMIDT, f/k/a DIANE BREDA, Plaintiff-Respondent, v. PAUL A. BREDA, Defendant-Appellant.
Paul A. Breda, appellant pro se. Diane Schmidt, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-551-97. Paul A. Breda, appellant pro se. Diane Schmidt, respondent pro se. PER CURIAM
Defendant Paul Breda appeals from an order entered by the Family Part on January 9, 2015, which denied his request for reimbursement of an overpayment of child support. We affirm.
We briefly summarize the relevant facts and procedural history. The parties shared joint legal custody of their three daughters. Plaintiff Diane Schmidt was designated as the parent of primary residence, and defendant the parent of alternative residence. The initial order establishing child support was entered on October 3, 1997. It required defendant to pay child support of $112.08 per week. The amount of child support was determined using the Child Support Guidelines.
On November 5, 2004, the court ordered that, commencing July 1, 2004, defendant must pay child support in the amount of $275 per week. The court's order stated that the amount of child support was calculated using the Guidelines. It was based upon imputed income of $30,000 per year for plaintiff, and defendant's representation that his income was $75,000 per year.
On August 30, 2007, the court entered another order which provided that, effective February 1, 2007, defendant's child support obligation would be $352 per week. Defendant's obligation was calculated using the Guidelines. In calculating child support, income of $30,000 per year was imputed to plaintiff, and defendant's reported annual income was set at $126,000.
The order further provided that defendant's obligation would be adjusted as of August 26, 2007, the date when the eldest child left for college. Defendant would then be obligated to pay $320 per week, as support for the other two children.
In July 2009, defendant filed a motion for a downward modification of child support. The court thereafter entered an order reducing defendant's support obligation to $200 per week. The order indicated that the parties had considered an award based on the Guidelines, but agreed that under the circumstances, $200 per week was more appropriate.
On June 14, 2010, as a result of plaintiff's relocation to Canada, the court entered an order which designated defendant as the parent of primary residence for the parties' two youngest children. On July 1, 2010, the parties agreed to the entry of a consent order, which provided that defendant's child support obligation would terminate as of July 1, 2010, or the first full week that the two children resided with defendant.
The order also provided that, in lieu of child support, plaintiff would pay defendant $200 per month by way of direct deposit into defendant's account. In addition, the order stated that defendant would continue to pay $6000 per year to the eldest child for her college education.
It is not clear from the record, but it appears that at some point plaintiff returned from Canada and became the parent of primary residence for two of the children. In 2013, defendant filed a motion for a change of custody, and plaintiff filed a cross-motion for child support for one of the children. The court entered an order dated April 25, 2013, denying the applications. The order states that custody was not being changed since the court found that the change of circumstances was not "of such magnitude" to warrant a change of status at that time. The order also states that defendant shall have up to three days of parenting time with the child.
The court ordered defendant to provide plaintiff's attorney with proof of his 2012 income, and ordered plaintiff to "provide proof of her current disability status and inability to work." Plaintiff's attorney was directed to calculate child support using the Guidelines and provide the results to defendant and his attorney in an attempt to reach a settlement regarding the amount of child support to be paid.
According to the order, the calculation would be based on defendant having three overnights per week with the child, and at least $30,000 of imputed annual income for plaintiff, unless otherwise directed by the court. The parties were ordered to submit an order by May 22, 2013, with child support retroactive to the date upon which plaintiff filed her cross-motion.
In April 2013, plaintiff's attorney provided defendant with a letter from a physician regarding plaintiff's ability to work. Plaintiff's counsel informed defendant that she had calculated child support based on his reported income of $100,000, which she asked defendant to verify. Counsel provided defendant with her calculation, which indicated that child support for one child would be $182 per week.
In May 2013, defendant wrote to plaintiff's attorney and indicated that he had made his own calculation of child support. He based his calculation on annual income of $91,635 for himself, as shown on his Form W-2. Defendant also imputed annual income of $30,000 for plaintiff. Defendant indicated that child support should be $70 per week.
The judge sent a letter to plaintiff's counsel dated May 13, 2013, which stated that when calculating child support using the Guidelines, income of $30,000 per year should be imputed to plaintiff, and income of $91,634.64 imputed to defendant.
Plaintiff's attorney responded by letter dated June 17, 2013. Counsel stated that she did not agree with defendant's use of 2013 tax tables for his 2012 income. She also stated that the Guidelines had "not been used throughout," and she had therefore included an increase in the amount of support, pursuant to Section 17 of the Guidelines. She stated that "The parties had not used [G]uidelines for support in their Agreement just prior to this." Plaintiff's counsel calculated defendant's child support obligation at $99 per week.
Appendix 1X-A to Rule 5:6A, Section 17 provides, "if the initial child support order is entered when a child is 12 years of age or older, that order and all subsequent orders shall be adjusted upward by 14.6%." Pressler & Verniero, Current N.J. Court Rules, Appendix 1X-A (2016). --------
The court entered an order dated July 8, 2013, which ordered defendant to pay child support of $99 per week, which was determined using the Guidelines. The court based this calculation on defendant's annual income of $91,634.64, and $30,000 per year of income imputed to plaintiff. The child support obligation was made retroactive to March 7, 2013.
In September 2014, defendant wrote to plaintiff and noted that the child had been away at college since the middle of August 2014. Defendant also noted that he was unemployed since August 22, 2014. Defendant re-calculated child support, reducing his income to an imputed $50,000 per year. He stated that he should not be paying any child support in addition to his payment of $6000 per year for the child's college education. Defendant stated that he was willing to pay child support of $15 per week based on his calculation.
In November 2014, defendant filed a motion seeking among other relief the termination of his child support payments. Defendant asserted that since March 7, 2013, he had been paying $47 per week in excess of the amount he should have been paying pursuant to the Guidelines. He sought an order compelling plaintiff to reimburse him in full for the amount of his overpayments. Judge Peter A. Bogaard considered the motion on January 9, 2015, and placed his decision on the record.
The judge determined that the child support order entered in 2013 was erroneous because it was based in part on the Section 17 increase. The increase should not have been applied because the court had been informed that this was the first time support had been determined using the Guidelines, which was not the case. The court decided, however, that defendant's request for a reimbursement should be denied.
The judge entered an order dated January 9, 2015, which stated in pertinent part that, effective that date, due to the previous clerical error in calculating child support, defendant's child support obligation was $40 per week. The order also stated that defendant's application for reimbursement of his overpayment of child support was denied. Thereafter, defendant filed a notice of appeal.
Judge Bogaard later filed a written statement pursuant to Rule 2:5-1(b) dated March 10, 2015, amplifying his reasons for denying defendant's motion for reimbursement. The judge noted that when child support was established in July 2013, the judge handling the case had determined that defendant was obligated to pay child support of $99 per week pursuant to the Guidelines. Judge Bogaard stated that in making that determination, the judge had erroneously applied a 14.6% increase pursuant to Section 17 of the Guidelines "which permits an increase in the award if it is the initial child support order and it is entered when a child is twelve years of age or older." See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A, Section 17 (2016).
The judge pointed out that plaintiff's attorney had informed the court that the parties had not used the Guidelines for support in their previous agreement on child support. The judge noted, however, that defendant had informed the court that the child support established by order entered in July 2010 had not been based on the Guidelines, although the Guidelines had been used previously in calculating child support.
The judge found that in July 2013, the court had erroneously applied the 14.6% increase, as indicated by the Guidelines worksheet appended to the order. Defendant did not seek reconsideration or file a timely appeal from the court's July 8, 2013 order. Rather, defendant waited until November 2014 to file his motion to modify or terminate the support payments required by the July 8, 2013 order.
Judge Bogaard found that even though child support had been erroneously calculated in July 2013, it would be inappropriate to grant defendant a retroactive modification of child support and require plaintiff to reimburse defendant for the child support overpayments. The judge noted that the monies had been paid to plaintiff and she had presumably used the funds for the child's benefit.
The judge wrote that if defendant were given the reimbursement he was seeking, he would receive a credit of $4512, which would essentially end any further child support payments for the child. The judge stated that this would deprive the child of the support she was entitled to receive. The child would suffer, not plaintiff. The judge also pointed out that retroactive modification of a child support order is not permitted by N.J.S.A. 2A:17-56.23a, except for the time in which a motion for such modification is pending.
On appeal, defendant argues the Family Part judge abused his discretion by refusing to order plaintiff to repay his child support overpayments. We are convinced that defendant's argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We affirm the denial of defendant's motion for reimbursement of his child support overpayments substantially for the reasons stated by Judge Bogaard in his amplification of reasons dated March 10, 2015. We add the following.
"The trial court has substantial discretion in making a child support award." Tannen v. Tannen, 416 N.J. Super. 248, 278 (App. Div. 2010) (quoting Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001)), aff'd o.b., 208 N.J. 409 (2011). A court's child support determination will not be set aside unless shown to be unreasonable, unsupported by substantial evidence, or "'the result of whim or caprice.'" Ibid. (quoting Foust, supra, 340 N.J. Super. at 315).
Here, Judge Bogaard determined that the child support order entered on July 8, 2013, had established defendant's support obligation at $99 per week by erroneously including the increase in the amount of support permitted by Section 17 of the Guidelines. However, as the judge noted, defendant did not seek reconsideration of or take a timely appeal from that order.
Rather, defendant paid the amounts he was ordered to pay and did not seek relief from the order until November 2014, about sixteen months after the July 8, 2013 order was entered. The judge correctly noted that since child support had been paid to plaintiff for the child's benefit, it should be assumed that plaintiff had used those funds for that purpose. The judge reasonably found that under the circumstances, it would be inequitable to grant defendant the reimbursement he was seeking because it would effectively deprive the child of any further support payments.
As the judge pointed out, the child support payments belong to the child, not to plaintiff. See Pascale v. Pascale, 140 N.J. 583, 591 (1995). Moreover, N.J.S.A. 2A:17-56.23a precludes retroactive modifications of child support orders, except for the period of time in which the application for such a modification is pending before the court.
We are therefore convinced that the denial of defendant's motion for reimbursement of his child support overpayments was not a mistaken exercise of discretion. The court's determination is supported by sufficient evidence and will not be disturbed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION