Opinion
DOCKET NO. A-0765-10T4
02-06-2012
ROBERT CLEMENT, Plaintiff-Appellant, v. ANYSSA C. CLEMENT, Defendant-Respondent.
Flanzbaum and Cohen, LLC, attorneys for appellant (Michele E. D'Onofrio, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-2125-94.
Flanzbaum and Cohen, LLC, attorneys for
appellant (Michele E. D'Onofrio, on the
brief).
Respondent Anyssa C. Clement has not filed a
brief.
PER CURIAM
Plaintiff appeals from an order that denied his motion for reconsideration regarding his request for modification of his child support obligation. We affirm in part and reverse in part.
The parties were married in 1989; had one child, a son born in 1991; and were divorced in 1994. Pursuant to their property settlement agreement (PSA), which was incorporated into their final judgment of divorce (JOD), plaintiff was required to pay $350 per month in child support diretly to defendant. The PSA also provided that on each fifth anniversary, plaintiff's child support obligation "shall be increased by 20% of the increase[]" in plaintiff's annual income during the preceding five-year period. The parties agreed that plaintiff's child support obligation would continue through "the completion of four academic years of continuous college education following graduation from high school" and, further, that they would pay for the college education and any other educational costs "in the same percentage as the income relationship of the parties."
Defendant did not receive any child support payments from plaintiff after July 2009. In February 2010, she filed a motion 1) to increase child support payments as provided in the PSA; 2) to enforce litigant's rights as plaintiff had not paid his child support obligation since July 2009; 3) for reimbursement of medical/dental expenses incurred by defendant on behalf of their son; and 4) for reimbursement of college tuition expenses paid by defendant in excess of her proportionate share. Defendant submitted a case information statement (CIS) in which she stated she was unemployed and received unemployment benefits bi-weekly. However, defendant did not complete the income portion of the form and only attached a 2009 W-2 form which listed her wages for that year as $26,934.80. She requested oral argument.
Plaintiff filed a notice of cross-motion opposing defendant's motion and seeking 1) reduction of his child support obligation retroactive to September 2009 when their son entered college; 2) reimbursement of college tuition paid in excess of his proportionate share; and 3) counsel fees. He also requested oral argument.
In support of his cross-motion, plaintiff submitted a certification in which he stated he stopped paying child support in August 2009 because their son began attending and residing at college in Florida in September 2009. Plaintiff noted that, pursuant to the PSA, he is responsible for two-thirds of their son's tuition, which includes room and board expenses. Plaintiff stated that he pays his share of the tuition and also gives their son money for books and spending money. Plaintiff did not argue that his child support obligation ended, but rather, contended he is entitled to a reduction in his child support obligation.
Plaintiff also submitted a CIS in which he stated he earned an annual salary of $88,962 in 2009. He noted that he has two additional children, born in 1997 and 2000. He attached pay stubs, his 2009 income tax return, and 2009 W-2 statements.
In opposition to plaintiff's cross-motion, defendant asserted that their son continues to reside with her five months of the year. She stated she had refrained from seeking increases to plaintiff's child support obligation in 2003 and 2008 as provided in the PSA because the parties had a verbal agreement that child support would not increase as long as plaintiff was putting money into a college fund for their son. She noted that plaintiff stopped paying child support in July 2009 and, in October 2009, informed her he would no longer pay child support. Defendant also argued she should not be responsible for plaintiff's counsel fees because the motion practice was made necessary by his unilateral decision to stop paying child support.
The court denied both parties' requests for oral argument. In an order dated July 9, 2010, the court granted defendant's request for a recalculation of child support in part. The order stated that plaintiff's child support obligation would be recalculated pursuant to the New Jersey Child Support Guidelines. Without explaining how the income figures were determined, the order stated,
[U]sing a gross weekly income of $518.00 for the Defendant and $1,711.00 for theThe court further ordered plaintiff to resume making his child support payments; denied without prejudice defendant's request for reimbursement of out-of-pocket medical expenses; and denied defendant's request for reimbursement of $520 paid for their son's fall 2009 college tuition.
Plaintiff, along with other relevant financial information, the Plaintiff's monthly child support obligation will be $828.00. Further since the parties' son [] resides at post-secondary school, away from the Defendant, the Plaintiff is entitled to a thirty-seven percent (37%) reduction in his monthly child support for the lack of variable expenses. Therefore, the Plaintiff is ORDERED to make a payment in the amount of $522.00 per month, directly to the Defendant.
The court denied plaintiff's motion to reduce his child support obligation retroactive to September 2009, citing N.J.S.A. 2A:17-56.23a. The court also denied without prejudice plaintiff's request for reimbursement of $3,118.30 he paid in excess of his obligation and denied his motion for counsel fees. The order stated that any relief not otherwise addressed in the order was denied without prejudice.
Plaintiff filed a motion for reconsideration of the July 9, 2010 order, specifically seeking an order 1) recalculating his child support obligation pursuant to Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and Walton v. Visgil, 248 N.J. Super. 642, 650 (App. Div. 1991); 2) requiring defendant to file an amended CIS; 3) granting plaintiff's request for recalculation of child support commencing when the party's son began college as a readjustment and reallocations; 4) reimbursing plaintiff for "overpayment of tuition costs"; 5) requiring defendant "to provide a two-part budget in accordance with Walton"; 6) requiring defendant to provide income information for their son; and 7) awarding counsel fees. Among his arguments in support of this motion, plaintiff asserted that it is "unclear as to how [the court] arrived at . . . defendant's $518[] gross weekly income" given that the financial "information provided by defendant [was] woefully inadequate and insufficient." Plaintiff again requested oral argument. Defendant opposed the motion.
The court again denied plaintiff's request for oral argument. By order dated August 27, 2010, the court denied plaintiff's request to recalculate his child support obligation, rejecting his argument that it was inappropriate to use the Child Support Guidelines, and concluding that plaintiff had failed to present "any new financial information to allege a significant change in circumstances to warrant a recalculation." The court also denied plaintiff's requests: to make the recalculation retroactive to the date when their son began college; to order defendant to file an amended CIS; to order defendant to provide a two-part budget; and for counsel fees. The court did, however, grant plaintiff's request for reimbursement of his overpayment of tuition costs.
In this appeal from the denial of his motion for reconsideration, plaintiff argues the trial court erred in (1) applying the Child Support Guidelines because their child was in college and residing on campus; (2) failing to make the recalculation of child support retroactive to the date the child began college; (3) failing to require defendant to provide a two-part budget in accordance with Walton; (4) failing to require defendant to file a complete CIS; (5) failing to consider plaintiff's other children in calculating his child support obligation; (6) failing to grant oral argument; and (7) failing to properly analyze the award of counsel fees.
This argument was not presented to the trial court in support of the request for modification. This court does not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
For the reasons that follow, we agree that the court erred in denying the parties' requests for oral argument and in its determination of child support pursuant to the Child Support Guidelines, requiring a remand for further proceedings. However, the trial court correctly denied plaintiff's application for what was, in effect, a retroactive termination of his child support obligation. As the court noted, N.J.S.A. 2A:17-56.23a provides, "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[.]"
The request for oral argument was governed by Rule 5:5-4(a), which states,
[I]n exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.
This provision has generally been interpreted to require oral argument "when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998). The denial of oral argument when a motion has properly presented a substantive issue to the court for decision "deprives litigants of an opportunity to present their case fully to a court." Ibid.
The initial motion in this case presented such a substantive issue to the court. Defendant sought an increase in child support, stating that there had been no increase since 1998. Her request was based upon the application of the following provision in the PSA:
The parties agree that the husband shall pay $350.00 per month as and for child support, directly to the wife and on each fifth anniversary date of the signing of this Agreement, said support shall be increased by 20% of the increased income between Husband's 1993 earnings and the earnings in 1998, 2003, etc. By way of example, if the husband's earnings in 1993 was $35,000.00 and in 1998 wil[l] be $50,000.00, that is a $15,000. increase and 20% is $3,000. so the child support shall be in 1999 $350.00 per month plus $250 ($3,000/12) or $600.00 p/m for the next 5 years until 2003 when the parties next have an increase and each 5 years thereaft[er]. In order to accomplish the computation, Husband agrees to cooperate with W-2's [sic] show[n] to wife.The parties therefore explicitly agreed to increases in child support every five years, based exclusively upon increases in the husband's income, without regard to the financial circumstances of the wife. Under the circumstances, the fact that there were deficiencies in defendant's CIS did not result in a failure to properly present the "substantive" issue to the court for determination and thereby render oral argument unnecessary. See Palombi v. Palombi, 414 N.J. Super. 274, 286 (App. Div. 2010). Similarly, plaintiff's cross-motion presented a colorable argument regarding the modification of child support in light of their son's matriculation and residence at college. We therefore conclude that the trial court erred in denying the parties' requests for oral argument of their motion and cross-motion.
[(Emphasis added).]
We agree further that the trial court erred in applying the Child Support Guidelines to determine a new support obligation for plaintiff. Paragraph 18 of Considerations in the Use of Child Support Guidelines, states, in pertinent part:
These child support guidelines are intended to apply to children who are less than 18 years of age or more than 18 years of age but still attending high school or a similar secondary educational institution. For the reasons set forth below, the Appendix IX-F support schedules shall not be used to determine . . . the amount of support for a child attending college. The child support guidelines may be applied in the court's discretion to support for students over 18 years of age who commute to college.
[Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2513 (2012). [(Emphasis added).]
Accordingly, we reverse that part of the July 2010 order which set plaintiff's child support at $522 per month. Upon remand, the court shall determine the amount of child support based upon its consideration of the factors in N.J.S.A. 2A:34-23(a), which include:
(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 . . .;
. . . .
(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.
To conduct this analysis, it will be necessary for both parties to comply with the mandatory requirements set forth in Rule 5:5-4(a):
When a motion or cross-motion is brought for the entry or modification of an order or judgment for alimony or child support based on changed circumstances, the pleading filed in support of the motion shall have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statement.
[(Emphasis added).]
The financial information disclosed fails to reflect "the unique circumstances encountered by a judge when considering the issue of child support in the context of a high earner[,]" Loro v. DelColliano, 354 N.J. Super. 212, 221 (App. Div.), certif. denied, 174 N.J. 544 (2002), for which the budget described in Walton, supra, 248 N.J. Super. at 649, is appropriate. We therefore reject plaintiff's argument that defendant must be required to submit a two-part budget before the court may determine the child support issue.
We are satisfied that plaintiff's arguments regarding his request for counsel fees lacks sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following brief comments.
We review an award of counsel fees for abuse of discretion. Where the judge follows the law and "makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)); Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011).
In denying plaintiff's request, the court observed that neither party acted in bad faith and that plaintiff had not shown he cannot afford his own counsel fees. Although the court did not provide a searching analysis of the relevant factors, see R. 5:3-5(c), we discern no abuse of discretion.
In summary, we affirm the denial of plaintiff's request for retroactive modification of his child support obligation and the denial of his request for counsel fees. We reverse the court's denial of requests for oral argument and modification of plaintiff's child support obligation, and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings. 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