Opinion
DOCKET NO. A-1738-11T2 DOCKET NO. A-2305-11T2 DOCKET NO. A-2307-11T2
07-26-2013
MAY HUANG, Plaintiff-Respondent, v. XIAOTANG HUANG, Defendant-Appellant. MAY HUANG, Plaintiff-Appellant, v. XIAOTANG HUANG, Defendant-Respondent.
Cowen & Jacobs, attorneys for appellant Xiaotang Huang in A-1738-11; respondent in A-2305-11 and A-2307-11 (Barbara E. Cowen, on the briefs). Green & Associates, LLC, attorneys for respondent May Huang in A-1738-11; appellant in A-2305-11 and A-2307-11 (Michael S. Green, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
DOCKET NO. A-1738-11T2
These are back-to-back appeals consolidated for purposes of this opinion.
Before Judges Alvarez, Waugh and St. John.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen
Country, Docket NO. FM-02-1649-04.
Cowen & Jacobs, attorneys for appellant Xiaotang Huang in A-1738-11; respondent in A-2305-11 and A-2307-11 (Barbara E. Cowen, on the briefs).
Green & Associates, LLC, attorneys for respondent May Huang in A-1738-11; appellant in A-2305-11 and A-2307-11 (Michael S. Green, on the briefs). PER CURIAM
Defendant Xiaotang Huang appeals from a November 4, 2011, determination of the Family Part, denying his motion to modify his alimony obligation based on changed circumstances. Plaintiff May Huang appeals the court's November 4, 2011, and December 1, 2011, determinations to emancipate the parties' child and to terminate defendant's obligation to pay child support.
I.
The record reveals the following facts and procedural history. After a nineteen-year marriage, the parties were divorced on May 24, 2005. Defendant remarried and is the father of twins born in 2009. At the time of the divorce, the parties had two teenage children, Derek and Laurence. Their property settlement agreement (PSA) was orally entered on the record, but never committed to writing.
Only Laurence, born in February 1990, is at issue here.
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The PSA provided that defendant pay plaintiff monthly $1800 in alimony and $1700 in child support, as well as full college expenses for the parties' two sons. These obligations were based upon defendant's annual income at the time of the divorce of $132,000. At the point that Derek finished college and was emancipated, defendant would pay 15% of his gross income for child support for Laurence. In 2008, Laurence enrolled in a five-year program at Stevens Institute of Technology and defendant stopped paying child support.
Defendant was earning $224,000 when he was laid off in November 2010. He received severance pay for one year and began searching for a new position. In January 2011, plaintiff filed a motion to compel defendant to pay child support arrears which totaled approximately $60,000 and equitable distribution which totaled approximately $21,000, and to compel defendant to pay college expenses for the parties' children. Defendant filed a cross-motion requesting a dismissal of plaintiff's motion, and termination of his obligation to pay child support for Laurence.
In July 2011, the parties attended mediation and arrived at an agreement that was memorialized by the court in orders dated August 5, 2011, and September 9, 2011. The agreement provided that defendant would be wholly responsible for all of Laurence's college expenses, he would pay $2230 per month in child support for Laurence, $80,000 in full satisfaction of the amount owed for the arrears and for equitable distribution, and defendant's alimony obligation of $1800 per month would remain in effect. The agreement also required Laurence to provide college transcripts to defendant, disclose any income he earned during his Spring 2010 semester, and to apply for financial aid. Laurence never provided his transcripts or applied for financial aid. Defendant attempted to communicate by e-mail with Laurence regarding college expenses, but Laurence was not responsive. On September 9, 2011, the judge warned Laurence that he should not "bite the hand that feeds" him, and that he should communicate with defendant or risk losing his father's payment of college expenses. Defendant again attempted to communicate with Laurence via phone calls, texts, and e-mails, but Laurence did not respond.
At the end of September, defendant accepted a position with a start-up company in China, earning $18,000 per year. His wife was earning $110,000. Defendant hoped that the experience he gained in China would eventually assist him in finding a "more financially viable position" in the United States.
On September 28, 2011, defendant filed a motion returnable November 4, 2011, to modify alimony, to emancipate Laurence and to terminate his obligations to pay child support and college expenses for Laurence. Plaintiff, pro se, filed a cross-motion on November 2, 2011, seeking to dismiss defendant's motion in its entirety. Plaintiff also sought to compel defendant to pay Laurence's college expenses, $2230 per month in child support, $1800 per month in alimony, and $91,244 in child support arrears and equitable distribution. Because of the lateness of plaintiff's submission, however, it was not considered in the motion judge's November 4, 2011, order emancipating Laurence and terminating defendant's obligation to pay child support and college expenses. The motion judge denied defendant's request to modify alimony.
On December 1, 2011, the parties appeared before the motion judge. Plaintiff was then represented by counsel. The judge issued an order essentially stating that notwithstanding plaintiff's arguments, the November 4, 2011, order would remain in effect.
On December 15, 2011, defendant appealed the court's November 4, 2011, refusal to modify his obligation to pay alimony. On December 21, 2011, plaintiff filed a motion for reconsideration of the December 1, 2011, order, requesting that Laurence be declared un-emancipated and defendant be compelled to continue paying child support and college tuition. Defendant filed a cross-motion opposing plaintiff's motion for reconsideration and requesting that the court stay his obligation to pay alimony pending the outcome of the appeal. On January 13, 2012, the motion judge denied the parties' motions because she no longer had jurisdiction, given the pending appeal. On January 18, 2012, the motion judge issued an amplification of her decision. Plaintiff filed an appeal of those aspects of the orders of November 4, 2011, and December 1, 2011, which emancipated Laurence and terminated defendant's obligation to pay child support and college expenses.
II.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges, if they are made following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Finally, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
On appeal, defendant claims that the judge erred by refusing to modify his alimony obligation based on changed circumstances. We disagree.
Defendant has the burden of showing such "changed circumstances" as would warrant relief from support or maintenance provisions. Martindell v. Martindell, 21 N.J. 341, 353-55 (1956). "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis v. Lepis, 83 N.J. 139, 157 (1980). This inquiry is not limited to the supporting spouse's income, but also includes earning capacity and overall wealth. Martindell, supra, 21 N.J. at 355.
"Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Lepis, supra, 83 N.J. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988) (internal citation omitted), certif. denied, 114 N.J. 505 (1989). "[A] court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)) (alteration in original). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [ support]." Miller v. Miller, 160 N.J. 408, 420 (1999).
Moreover, satisfying this threshold does not automatically result in a downward modification of defendant's support obligations because courts are to weigh several factors dependent on the nature of each case. Lepis, supra, 83 N.J. at 153. These factors include whether the change in circumstance is temporary or permanent; whether the change was voluntary; whether it was motivated by bad faith or a desire to avoid payment; and whether the change in circumstance renders the payor unable to pay. See Larbig, supra, 384 N.J. Super. at 23 (finding a reduction in income to be temporary); Kuron v. Hamilton, 331 N.J. Super. 561, 572 (App. Div. 2000) (finding the movant's good faith to be an "ingredient" to consider); Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992) (finding that a voluntary change such as retirement may sometimes justify a modification).
Defendant argues that the motion judge erred in refusing to modify his alimony obligation given that the judge agreed that defendant had demonstrated changed circumstances sufficient to terminate his child support and college obligations for Laurence.
Here, defendant was earning $132,000 at the time of the divorce when his maintenance and support obligations originated. By 2010, he was earning more than $200,000 per year. When his position was terminated, he received severance pay for one year. He accepted the low-paying position in China in the hope that it would result in a "more financially viable position" upon his return to the United States.
We agree with the motion judge that defendant failed to demonstrate a prima facie case of changed circumstances. Lepis, supra, 83 N.J. at 157. Defendant accepted the low-paying position in China, which is presumably a temporary situation, with the expectation of a higher-paying position in the future. Moreover, the lower-paying position might include other forms of remuneration such as equity in the start-up company, a bonus or performance based compensation. The record does not disclose an affirmative statement by the defendant that these types of incentives do not exist. Defendant did not represent that his salary was his only compensation. As such, we agree with the motion judge that defendant has failed to establish the requisite changed circumstances for modification of his alimony under Lepis.
Defendant argues that the motion judge had already made a finding of changed circumstances because she terminated defendant's obligation for child support and for Laurence's college expenses. We do not find that argument to be persuasive. Different factors were appropriately considered by the motion judge in deciding to modify child support and college expenses from the factors utilized in modifying alimony.
In her appeal, plaintiff argues that the motion judge erred by emancipating Laurence and terminating defendant's child support and college expense obligations. More specifically, plaintiff complains that the judge erred by not applying all of the factors necessary for a determination as to whether to emancipate Laurence, by permitting defendant to avoid responsibilities that he had agreed to in the mediation shortly before he filed his motion, and by making factual and procedural errors.
Child support awards and modifications are left to the sound discretion of the trial court and our review is limited to determining whether there was an abuse of discretion. Innes v. Innes, 117 N.J. 496, 504 (1990); Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999). Moreover, child support obligations are always subject to alteration based upon changed circumstances, regardless of whether the obligations were set by the court or by agreement between the parties. N.J.S.A. 2A:34-23; Lepis, supra, 83 N.J. at 146; Dolce v. Dolce, 383 N.J. Super. 11, 19 (App. Div. 2006).
Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry is whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own."
[Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).]
In general, a parent is not obligated to support a child beyond the age of eighteen. Newburgh v. Arrigo, 88 N.J. 529, 543-44 (1982). When analyzing an emancipation request, however, courts consider "the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce, supra, 383 N.J. Super. at 18. Courts have recognized an exception for payment of college expenses for children who are older than eighteen but are engaged in full-time studies. Newburgh, supra, 88 N.J. at 543-44. In order to determine the parent's appropriate contribution toward the cost of higher education, courts use the following factors:
(I) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
[Id. at 545.]
Plaintiff asserts that the judge erred because she only applied some, and not all, of the Newburgh factors in determining that defendant should have no further responsibility for Laurence's college expenses. The judge cited Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996), for the proposition that a child should not be entitled to a "free ride" to college when the child is estranged from his or her parent. The judge noted that Laurence had been specifically instructed by the court to communicate with his father and had failed to do so. Another factor considered by the judge was the change in defendant's financial situation, given that he was no longer earning $200,000 per year. The judge also noted that Laurence's grades have been poor at times. We agree that the factors considered by the judge were sufficient to determine that defendant should have no further responsibility for Laurence's college expenses, especially given that Laurence had reached the age of twenty-one and had already completed four years of college.
Plaintiff also argues that the court erred in terminating child support. Plaintiff contends that because only two months prior to filing his motion defendant had agreed to pay $2230 per month in child support for Laurence, it would be unfair to permit defendant to renege on this agreement. However, the parties' mediated agreement also contained reciprocal requirements for the plaintiff to insure that Laurence communicated with defendant, provided transcripts and applied for financial aid. Plaintiff has provided no evidence that Laurence complied with those conditions in exchange for defendant's continued payment of support. Consequently, since Laurence and plaintiff failed to fulfill their obligations, it was not an abuse of discretion for the motion judge to determine that defendant was not responsible for any further obligations under the agreement.
Plaintiff asserts that defendant should be judicially estopped from filing his motion for termination of child support and college expenses because he had requested in August 2011 that the court memorialize the mediated agreement which included those obligations. Defendant does not dispute the contents of the agreement, but contends that because plaintiff and Laurence failed to meet their obligations, he is not required to continue to pay support. Therefore, since defendant is not challenging the agreement but his obligations thereunder, he is not estopped from proceeding to set aside his child support and college expenses obligations.
Plaintiff argues that child support is based on the needs of the child and not the relationship with the parent. As noted, the age of emancipation is generally eighteen, although this may be extended when the child is a full-time student. Newburgh, supra, 88 N.J. at 545. Here, the motion judge took into consideration the conditions which were required of Laurence, who was aged twenty-one at the time of the mediation. Thus, given Laurence's age, his failure to communicate with defendant and to satisfy other conditions, we agree that the judge properly used her discretion in emancipating Laurence and terminating defendant's obligations for child support and college expenses.
Plaintiff raises a number of contentions which are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following brief comments. Plaintiff did not raise any due process concerns before the trial court relating to improper service, and thus we need not address this aspect of her argument. See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) ("our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest") (internal quotation omitted). In addition, while the judge initially declined to hear oral arguments on the emancipation issue during the December 1, 2011, hearing on plaintiff's cross-motion, after plaintiff's repeated insistence that the judge was "missing the important point," the judge did permit plaintiff to make an argument on that issue. As to the issue of the judge's amplification, plaintiff argues that it was untimely according to Rule 2:5-1(b). However, plaintiff did not object and she was not prejudiced because she filed a timely appeal. Similarly, plaintiff claims that the court made factual errors regarding Laurence's educational performance. In fact, the record generally supports the judge's factual findings, but the fundamental issue was not Laurence's poor educational performance, but his lack of communication with defendant which was amply supported by the record. Plaintiff complains that defendant did not file an updated case information statement after February 2011. However, the record indicates that defendant's income did not change during the period between February 2011 and September 2011, when he accepted the position in China.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPHJATE DIVISION