Opinion
DOCKET NO. A-0319-14T2
12-06-2016
JENNIFER MAYNARD, Plaintiff-Respondent/Cross-Appellant, v. CHAD MICHNA, Defendant-Appellant/Cross-Respondent.
Eliana T. Baer argued the cause for appellant/cross-respondent (Fox Rothschild LLP, attorneys; Ms. Baer, of counsel and on the briefs). Kelly Berton Rocco argued the cause for respondent/cross-appellant (Law Offices of Kelly Berton Rocco, attorneys; Ms. Rocco, of counsel and on the brief; Faudia A. Hameed Clemenza, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0772-12. Eliana T. Baer argued the cause for appellant/cross-respondent (Fox Rothschild LLP, attorneys; Ms. Baer, of counsel and on the briefs). Kelly Berton Rocco argued the cause for respondent/cross-appellant (Law Offices of Kelly Berton Rocco, attorneys; Ms. Rocco, of counsel and on the brief; Faudia A. Hameed Clemenza, on the brief). PER CURIAM
The complexities of determining child support obligations of parents supporting children born during multiple relationships require a detailed analysis of facts and circumstances, from which the Family Part must clearly identify the underpinnings of any calculation. In this high income case, defendant Chad Michna appeals and plaintiff Jennifer Maynard cross-appeals from provisions contained in a May 30, 2014 order, which fixed their respective obligations for the support of their child. The appeals also raise challenges to an August 29, 2014 order deciding their cross-motions for reconsideration. Following our review, we affirm portions of these orders, but are also constrained to vacate and remand other provisions for further consideration because we cannot reconcile the stated findings with the ordered conclusions.
The facts are taken from the testimonial, expert, and documentary evidence admitted during a two-day plenary hearing. In addition to the testimony by plaintiff, her expert, defendant, and his expert, without objection, documents were admitted, including: each party's federal and state income tax returns for 2010, 2011, and 2012; plaintiff's commission statements from 2010, 2011 and 2012; defendant's year end pay stubs from 2009, 2010, 2011, 2012 and March 24, 2013; plaintiff's 2013 Case Information Statement (CIS); and defendant's 2012 and 2013 CISs. We also considered the post- hearing motion record. We limit our factual recitation to the financial issues on appeal.
The parties met in California while attending a work function, as they were employed by the same company. When they commenced dating, plaintiff was residing in California, defendant in Georgia. They each had ended a prior marriage, and both had a special needs child. Once the parties were engaged, plaintiff and her older child, George, moved to defendant's home in Georgia.
Because this appeal focuses on the child support obligations for the parties' child, but intimately involves the support obligations of both plaintiff's and defendant's children from previous marriages, for the convenience of the reader, we refer to the three children in this case with pseudonyms. We refer to the parties' child as "Michael," plaintiff's child as "George," and Defendant's child as "Richard."
At some point, plaintiff determined the schools in New Jersey better addressed George's special needs, and ultimately she relocated to her parents' home in Holmdel. The parties continued their long-distance dating relationship and in 2011, their child Michael was born in New Jersey. The parties ended their relationship approximately four months later.
Defendant voluntarily paid support, but the issue was not satisfactorily resolved. Plaintiff initiated a complaint for sole residential and legal custody, child support, and defendant's contribution toward Michael's related financial expenses. After discovery and various motions, including defendant's challenge to personal jurisdiction, an evidentiary hearing was held to determine custody, parenting time, and the parties' respective financial obligations.
On the second day of the hearing, the parties reached an agreement to share joint legal custody and designated plaintiff the residential parent. Testimony clarified defendant's consent to waive parenting time, as personal reasons motivated him not to participate in Michael's life. Plaintiff and defendant also established the process for payment of activity expenses greater than $150 per event, not otherwise encompassed within the court determined child support award: if they agreed to incur the expense for Michael, payment would be shared in accordance with percentages fixed by the judge for the child support award. Finally, the parties agreed to alternate the tax dependency exemption, provided defendant's child support obligation was current. A May 9, 2013 consent order was filed stating these terms. The plenary hearing continued, to determine the amount of direct support and related support obligations.
The consent order also included the agreement allowing plaintiff to modify Michael's surname.
The order is not contained in the record.
Plaintiff was employed as a medical sales representative. She stated her average annual income for the three years prior to the hearing (2010, 2011, and 2012), noting annual compensation consisted of a base salary, commission up to an annual cap, and a non-guaranteed bonus. She discussed the methodology employed to calculate her quarterly commissions and the annual bonus, which she noted was paid after the close of each year.
In 2012, plaintiff's income was enhanced by redeemed stock options, awarded prior to her relationship with defendant. Further, she realized investment income from loans to her brother's company; as a shareholder in her father's company; and rental receipts generated from Utah realty. Plaintiff also received monthly support for George, as ordered by a judgment of divorce, as well as a portion of educational, camp, and medical costs.
Discussing her expenses, she noted she, George, and Michael live in her parents' home, without contribution. She expressed her hope to acquire her own residence within the school district, and itemized these anticipated expenses on her CIS. Under housing costs, she also included the mortgage and costs associated with two Utah investment properties.
Plaintiff's company provided a car, pays for business related gas expenses, medical insurance for which she contributes a portion of the cost, and a flexible spending account that provides $1,000 for child care. Plaintiff's testimony itemized estimated monthly expenses solely for Michael, which encompassed: $600 ($20 per day) for food and $4 0 for restaurants; $60 for vitamins, which she corrected to $40 on cross-examination; $150 for clothing; $100 for entertainment; $100 for vacations; $25 medicine; $90 diapers; $75 for toys and books; $320 activities; $202 for medical insurance and unreimbursed fees; and varying amounts transferred to a college fund.
Further, plaintiff employed a nanny for twelve hours per day, paying her $400 per week. She asserted the nanny is primarily responsible for caring for Michael, but admitted some care is afforded to George. The nanny also fixed the family dinner, shops, runs errands, and takes both children to activities while plaintiff is working. The nanny is paid an additional $200 each weekend. Plaintiff also pays employment taxes related to the nanny's services.
In addition to child support, plaintiff sought defendant's contribution of sixty-percent for Michael's past unreimbursed medical expenses and future costs. She also believed defendant should establish a trust, using a percentage of his stock options, to pay for extraordinary items, such as Michael's first bike, first car, and the child's savings account. Finally, she sought college contributions.
Cross-examination probed plaintiff's income and attacked the level of her claimed expenses. Plaintiff agreed she earned significant income in 2009, which she omitted from her income averaging computations. Also, she admitted the "loss" generated from the Utah investment properties accounted for depreciation; were that deduction eliminated, one property realized a small gain. Additionally, the loss was carried forward, which allowed her to reduce her federal income tax obligation.
Plaintiff admitted her reported monthly expenses for Michael were estimates, as she did not examine any documents to verify her claims. Zeroing in on specifics, plaintiff was asked to identify toys purchased or entertainment engaged for Michael in the past month. The actual amount recalled was less than the amount of expenses as testified on direct. Regarding the nanny, plaintiff admitted the nanny started caring for Michael and George prior to her departure for work and continued working more than two hours after she returned from her office. The nanny watched both children when plaintiff is out of town or on vacation. Plaintiff could not explain why the day care costs listed on her federal income tax returns, designed to claim the federal child care credit, reported an annual expense for Michael of $14,405 or $1,200 per month.
Next, defendant testified regarding his employment, other income and expenses incurred for himself and his older child, Richard. From the time the parties met, defendant worked as the director of government accounts, with compensation consisting of a base salary, commissions subject to an annual cap, and participation in a company stock appreciation rights plan, which was subject to a three-year vesting period without guaranteed annual awards, as illustrated by the fact no stock was awarded in 2011. Defendant also received interest income from a personal loan to a friend, which he inadvertently omitted when listing his assets.
Defendant advanced child support should be calculated using the average of the prior four years' earnings for both parties. In part, this suggestion was designed to avoid artificially increasing his income because two events in 2012 caused "extraordinary" earnings, "the most [he had] ever made," which were unlikely to reoccur. First, company shares issued in 2009 were depressed in price so when the company was sold in 2012 the price per share had more than doubled from the date awarded. Second, he was awarded a "one-time employee retention grant" of stock that year because the company was sold.
Defendant expressed the basis of his older son's needs. Richard was born in Georgia, but the child principally lived with his mother in Missouri. Defendant enjoyed 122 days of parenting time. He maintained the Georgia residence where Richard returns to a familiar home each summer and in December, to spend seven to eight weeks per year with his paternal grandparents, aunt, uncle, and cousins. The balance of the parenting time, approximately eight days per month for the remaining months of the year, were spent in St. Louis.
Defendant testified the calculated child support obligation for Richard was $2,500 per month; however, because he incurred expenses to facilitate his significant parenting time, the ordered support was reduced to $1,500 per month, by agreement, so long as he maintained his St. Louis residence.
These expenses were itemized on his CIS, calculated using a four-month average of bills paid and recorded in his checking register. In addition to food and entertainment costs for Richard, defendant owns a condominium in St. Louis, paying $650 per month; had airfare expense of approximately $450 per month; and paid for a car. He also contributed $18,000 toward the annual cost of Richard's special needs private schooling, but claimed the "more reasonable amount" of $1,000 per month on his CIS. He also pays $90 each month for Richard's psychiatric care and provides his medical insurance. Finally, he opened a college account, which was not included among his listed assets.
Defendant challenged plaintiff's financial demands, arguing she was accustomed to a lifestyle based on her family's wealth, which he could not afford, nor should he be required to match. Focusing on the significant cost of the nanny, he suggested his contributions should be limited to reasonable day care expenses, which he accepted as $16,000 per year. He also understood the employer's day care plan provides an annual benefit equivalent to $2,160. Defendant attacked plaintiff's claimed medical insurance expense, noting he is enrolled in the same plan and the difference between a single plan and a parent and child plan is $40 per month, regardless of the number of children covered.
The experts presented by the parties directed their opinions to defendant's special needs son's educational costs. Plaintiff's expert, an attorney who specialized in special education law, expressed an opinion that federal legislation, implemented in every jurisdiction in the country, required public school districts to fund an out-of-district educational program for a special needs child if the child's district could not provide him or her with an appropriate educational program. Based on an assumption that Richard's school district could not provide an appropriate education to accommodate the child's special needs, he opined defendant had a "very strong case" for obtaining reimbursement from the school district for the cost of the private school. He noted, if the district denied the request, the child's parents must initiate a due process hearing before a panel to assess the district's ability to provide the required education. If the district was unable to do so, it would be ordered to pay the cost of the private school and possibly pay the parents' attorney's fees. The expert estimated attorney's fees for such a hearing might cost at least $10,000.
Plaintiff's expert identified the Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400 to 1482 as the authority for his opinion. We note, in 2004, that statute "was reauthorized and amended by the Individuals with Disabilities Education Improvement Act . . . Pub. L. No. 108-446, 118 Stat. 2647." E.M. v. New York City Dep't of Educ., 758 F.3d 442, 445 n.1 (2d Cir. 2014). We identify the legislation as the Act.
Defendant's expert, Richard's treating psychiatrist, informed the court of the child's symptoms, diagnosis and the need for regular mental health care. The expert noted when he began treating Richard, he was "acutely ill" and unable to attend public school. Richard was incredibly fragile and afraid other children would hurt him. Richard suffered delusions, causing his behavior to be erratic and "volatile." The expert stated, generally, Richard was "uneducable . . . due to the emotional dysregulation" and because he had "no connection with reality." Educationally, the school's offered program caused Richard to lapse, and he made no progress at all, especially because the school did not recognize "he was not in any condition to be taught at that time." Were he to stay in public school, constant one-on-one attention was required "just to keep him safe." When the various approaches of the public school failed to address Richard's education, the psychiatrist recommended his placement in a private special school, which could address his mental health needs and education challenges.
Defendant's expert disagreed with the assumption that reimbursement was likely, because the private school was not among those approved for reimbursement by the Missouri Department of Education. None of his patients, whose children attended the same school, received reimbursement. He firmly believed reimbursement would not be awarded. On cross-examination he noted there were schools for which reimbursement would be issued, but, in his view, these institutions offered minimum criteria to aid Richard. Whereas he characterized the private school Richard attended as "a more comprehensive program than is required by law," which was better suited to his needs and education.
The trial judge issued a written opinion setting defendant's weekly child support obligation for Michael. She calculated the average income of the parties, using plaintiff and defendant's gross weekly incomes, annual bonuses, and other earned income reported on their respective 2010, 2011, and 2012 income tax returns. The judge prepared a worksheet using the New Jersey Child Support Guidelines (Guidelines), see R. 5:6A, which was attached to her initial opinion. She accounted for $1,500 as the prior child support order defendant paid, but rejected his request for additional credits attributed to Richard's school, medical costs, and expenses incurred to facilitate visitation.
The opinion is not dated and the record contains no order memorializing the conclusions.
Because she found the parties' incomes exceeded the limits of the Guidelines, to reach a fair award in the child's best interests, the judge analyzed applicable statutory factors to discern an amount of supplemental support. The supplemental child support award was calculated by subtracting defendant's basic, weekly Guidelines child support from the determined weekly needs. The difference was multiplied by fifty-six percent, the parental income percentage she set in her May 30, 2014 order, resulting in an additional $112 per week.
In reviewing Michael's claimed needs, the judge reduced costs associated with the nanny. She rejected defendant's request to adjust the Guidelines calculation because plaintiff had no housing or automobile costs.
The effective date of the order was the date plaintiff filed her complaint, December 23, 2011. Arrearages were ordered paid at $100 per week. Defendant was ordered to maintain life insurance with a $300,000 benefit to secure support and share the unreimbursed medical expenses in excess of $250 per year in accordance with the income percentages. The judge denied plaintiff's request for a supplemental expense trust and a college fund, as well as each parties' requests for counsel fees.
The parties requested clarification of the provisions of the opinion. Plaintiff questioned whether defendant must also pay for extracurricular activities and how he would satisfy accumulated arrearages. Defendant sought the basis for the weekly support ordered. The judge issued a supplemental written opinion on May 21, 2014.
Starting with what she stated were the child's weekly needs of $1,010, as listed, the judge determined the cost of extracurricular activities was encompassed within the child support award and, therefore, not appropriately added as additional support. She stated defendant's income from issued stock was sporadic and not considered in the award, and arrears satisfied by an additional $100 per week payment. The final order was entered on May 30, 2014.
Subsequently filed cross-motions for reconsideration were denied, after oral argument. Defendant's appeal and plaintiff's cross-appeal followed.
Well defined standards govern our limited review. Cesare v. Cesare, 154 N.J. 394, 411 (1998). As a general rule, "we do not second-guess . . . findings and the exercise of . . . sound discretion" by our Family Part judges. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Following a hearing, factual findings by a trial judge "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). See also MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) ("A reviewing court should uphold the factual findings undergirding the trial court's decision if . . . supported by adequate, substantial and credible evidence on the record." (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007))). Accordingly, when the trial judge's conclusions are evidentially supported, we accept them and our "'task is complete.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Importantly, we will not disturb a result even though we feel a different conclusion could have been reached; unless convinced the trial judge's determinations "are so manifestly unsupported . . . as to offend the interests of justice," we will not intervene. Rova Farms, supra, 65 N.J. at 484. See also Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Moreover, a trial judge's conclusions "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Thus, we are not bound by "[a] trial court's interpretation of the law" and do not defer to legal consequences drawn from established facts. Manalapan, supra, 140 N.J. at 378. Guided by these legal principles, we review the parties' challenges to the court's orders.
Defendant maintains the judge failed to provide "equality in treatment" between the support for his older special needs child, Richard, and the parties' child, Michael. He suggests the judge miscalculated his obligation and erred in not considering additional expenses he proved were paid for the education of and incurred to facilitate parenting time with Richard. In a related argument, he asserts the court failed to state factual findings explaining how the amount of support was computed. Further, when evaluating plaintiff's claimed expenses, he maintains the judge failed to consider the marginal cost associated with adding another child to the household, which would not double expenses. Therefore, she erred in not considering funds received for support of plaintiff's older child, George, which reduced household costs.
Other arguments challenge the denial of defendant's request to modify any Guidelines support amount because plaintiff incurs no housing or transportation expenses. Also, he asserts the rejection of necessary expenses related to parenting time with Richard and the cost of his education because of his special needs was inequitable.
Plaintiff's cross-appeal challenges the income determinations, including the calculated three-year average and the omission of the value of defendant's stock grants. Plaintiff also suggests more money must be set aside in trust for Michael's future expenses, the face value of life insurance was inappropriately low and the denial of counsel fees was erroneous.
Child support is necessary to ensure parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). The Legislature authorizes courts to establish child support to be paid by the non-residential parent, "[w]hen the parents of a minor child live separately" in the same manner as when "parents are divorced." N.J.S.A. 9:2-3, N.J.S.A. 9:17-53(c). See also N.J.S.A. 2A:34-23(a) (listing factors to consider when establishing child support); R. 5:6-1 to -8 (delineating procedures governing summary actions for support). In this regard, our Supreme Court has "reemphasize[d] that '[t]he right to child support belongs to the child.'" J.B. v. W.B., 215 N.J. 305, 329 (2013) (quoting Pascale, supra, 140 N.J. at 591). "The purpose of child support is to benefit children, not to protect or support either parent." J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007).
Although trial judges are given "substantial discretion in making a child support award . . . most child support awards are computed pursuant to the Guidelines." Jacoby v. Jacoby, 427 N.J. Super. 109, 116, 119 (App. Div. 2012); see R. 5:6A (stating generally the Guidelines "shall be applied when an application to establish or modify child support is considered by the court"). The Court developed the Guidelines, and Rule 5:6A incorporates by reference interpretive "Considerations in Use of the Child Support Guidelines" (Appendix IX-A). The explanatory Appendix IX-A is designed "to provide the court with economic information," detailing the when, why and how the Guidelines are applied to establish or modify child support, which assists in rendering "fair and adequate child support awards." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A ¶ 1 (2016), www.gannlaw.com; see also 6 N.J.L. 1237, May 19, 1997. "The guidelines assume that the parents are sharing in the child-rearing expenses in proportion to their relative incomes and that those percentages are based on the combined net income of the parents." Caplan v. Caplan, 182 N.J. 250, 264 (2005).
"In accordance with Rule 5:6A, these guidelines must be used as a rebuttable presumption to establish . . . all child support orders. The guidelines must be applied in all actions . . . ." Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at ¶ 2. "A rebuttable presumption means that an award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case." Ibid.
Underpinning a Guidelines-based support award are assumptions regarding "relative spending on children in the three broad consumption categories" as follows: "38% fixed expenses, 37% variable expenses, and 25% controlled expenses . . . ." Id. at ¶ 14(g)(1).
Fixed costs are those incurred even when the child is not residing with the parent. Housing-related expenses (e.g., dwelling, utilities, household furnishings and household care items) are considered fixed costs.
Variable costs are incurred only when the child is with the parent (i.e., they follow the child). This category includes transportation and food.
Controlled costs over which the PPR, as the primary caretaker of the child, has direct control. This category includes clothing, personal care, entertainment, and miscellaneous expenses.
[Id. at ¶ 14(f).]
This case also poses questions regarding the applicability of adjustments to a straight Guidelines support calculation. "Where a guidelines-based child support order would cause injustice, the court may disregard the award upon a showing of good cause." Harte v. Hand, 438 N.J. Super. 545, 552 (Ch. Div. 2014).
Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of the other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.
[R. 5:6A.]
Appropriate considerations presented by these facts include the following. First, adjustments may be appropriate for the support of other legal dependents when addressing multiple family obligations. Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at ¶ 10a and b. Second, a supplemental support award may be issued when the combined net annual parental income exceeds $187,200. Id. at ¶ 20. The amount of additional support is based on the review of the factors delineated in N.J.S.A. 2A:34-23. See also Caplan v. Caplan, 364 N.J. Super. 68, 86-90 (App. Div. 2003) (articulating a procedure for determining the discretionary amount of child support applicable when parental net income exceeds the Guidelines' limitations), aff'd, 182 N.J. 250 (2005). Third, adjustments may be required to a guidelines-based child support award to capture "special needs of gifted and disabled children," Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at ¶ 9(d), as well as other factors "in a particular case" which "cause the child support guidelines to . . . require an adjustment to the child support award." Id. at ¶ 21.
N.J.S.A. 2A:34-23 (a) requires review of these factors when determining a discretionary child support award:
(1) Needs of the child;
(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, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(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.
Overall, defendant's arguments strike at the need to equitably order support, among a parent's children born during different relationships, based on each child's needs. The issue has been reviewed in a different context, in which we noted:
The Guidelines require the court to consider multiple family obligations to obtain an equitable resolution that does not favor any family. The Guidelines also anticipate an adjustment when an obligor must support more than one family. Pursuant to the Guidelines, prior child support orders must be deducted from an obligor's weekly income because such an obligation represents income that is not available for determining the current child support obligation . . . . Thus, the amount of such orders must be deducted from the obligor's total weekly [a]djusted [g]ross [t]axable [i]ncome.
[Harte v. Hand, 433 N.J. Super. 457, 462-63 (App. Div. 2013) (citations omitted).]
Following our review, we discern several problems in linking the stated factual findings to the ordered result. Some mistakes are easy to resolve, as they appear to be mathematical errors, but other questions are not adequately explained by the statement of reasons issued in this matter. Below we will identify those areas that must be addressed on remand.
We start with the calculations as presented. Our comments merely address problematic areas accurately, without consideration of specific arguments that additional adjustments are necessary. These are addressed in our discussion thereafter.
The statement of reasons lists the parties' gross taxable incomes, for the years 2012, 2011 and 2010, and suggests these sums were averaged to reach an annual income necessary to calculate child support. Performing the same calculations, we are unable to reach the amounts listed on the Guidelines worksheet attached to the September 17, 2013 order. We are also unable to reconcile the gross taxable incomes recited in the statement of reasons with the parties' tax documents. It is not clear whether the stated annual incomes represent only earned income and, if so, why reoccurring unearned income was not considered. Earned income from 2013 was calculated, but the judge's opinion does not inform us whether or how this was considered in the calculations. Finally, the judge did not address the apparent rejection of a more expansive time period when computing the average of the parties' incomes. See Platt v. Platt, 384 N.J. Super. 418, 426 (App. Div. 2006) (affirming averaging of sporadic income over a five-year period).
The judge specifically addressed the stock grants to each party, which we discuss in relation to plaintiff's cross-motion.
If these calculations can be reconciled and prove to be accurate, there appears to be a transposition error when calculating percentages applicable to each party. The May 30, 2014 order set the percentages as follows: defendant 56% and plaintiff 44%. However, the parties' percentage of the total income stated on the Guidelines worksheet provides: defendant 54% and plaintiff 46%. Another minor mathematical error regards the amount of the deduction for the prior support order of $1,500 per month, which would be $348.84 (based on 4.3 weeks per month) not $346 as stated. See Pressler & Verniero, supra, Appendix IX-B to R. 5:6A, GENERAL INFORMATION, Use of Weekly Amounts.
Next, the total child support award, computed in the judge's opinion of $836, differs from the award stated on the Guidelines worksheet of $906 per week.
We further recognize this is a high income case because the parties' combined net yearly incomes exceeds $187,200. See Pressler & Verniero, supra, Appendix IX-A to R. 5:6A, ¶ 20(b). The judge discussed the statutory factors and determined the child's monthly needs of $1,010, which would be reduced by the total support paid by both parents. Using $906, the supplemental weekly support amount totals only $104, for which defendant would be responsible for 54%. Whether we start with the amounts listed in the judge's opinion or those on the Guidelines worksheet, we cannot calculate the ordered support of $565.
In addition to these calculation inconsistencies, we also discuss concerns raised by the parties, insufficiently addressed in the judge's findings. Starting with defendant's arguments, he contends the judge failed to consider a marginal cost analysis, such that child support received by plaintiff for George would reduce expenses shared by George and Michael. We understand the argument as based on this Guidelines explanatory statement:
At the foundation of the child support guidelines are estimates of what parents in intact families spend on their children. Determining the cost of raising a child is difficult because most goods and services purchased by families are shared by adults and children. Economists estimate that approximately 65% of household spending is for pooled items (e.g., a car, a washing machine, or a box of laundry detergent used in common by all household members). Even for goods that are privately consumed (e.g., clothing, food), expenditure surveys are not detailed enough to link individual household members (adults or children) to a particular expenditure. Together, pooled and privately consumed goods account for about 90% of total household expenditures. Since most expenditures on children cannot be observed directly, economists use an indirect method of determining child-rearing costs known as marginal-cost estimation. Marginal-cost estimation attempts to find the added cost
of a child to a family by comparing the expenditures of families considered equally well-off economically and have different numbers of children. For example, if two families (one with and one without a child) are equally well-off, the additional expenses of the family with a child are assumed to be the marginal cost of the child.
[Pressler & Verniero, supra, Appendix IX-A to R. 5:6A, ¶ 5.]
We would agree defendant's suggestion might impact a straight Guidelines calculation. However, we are not certain the judge utilized the Guidelines when calculating support. Defendant does not provide the necessary economic analysis, demonstrating an actual affect upon precise expenses and fails to explain what costs should be changed and how the computed support would be altered. Instead, he advances a general suggestion that pooled expenses are satisfied in part by support of plaintiff's older child George and therefore, computing child support for the parties' child Michael as if he were the only child in plaintiff's household, artificially increases the amount of support defendant is ordered to pay.
Equally generalized is the treatment of this issue in the statement of reasons, which provides: "The marginal cost analysis is rejected. The shared cost items are recognized and divided appropriately." Yet, the supplemental opinion itemizes expenses purportedly attributed to Michael as necessary support, and fails to explain how shared costs were considered. The omitted analysis is necessary to aid our review.
The most sharply challenged expense sought by plaintiff was the cost of the nanny, totaling $42,576 per year. For reasons not entirely clear, the judge allocated $31,404 of the total nanny expense to Michael's needs. This finding is neither explained nor supported by the evidence in the record.
Plaintiff testified the nanny watches both Michael and George more than an hour before she departs for work and stays more than two hours after she returns home; the nanny cares for George when he returns from school; she cooks dinner; shops for plaintiff and runs her errands; transports both children to activities, and cares for both when plaintiff is on vacation or away on business. In light of the benefits directly for plaintiff's convenience and the care provided to George, we cannot substantiate attribution of 75% of the total expense as "child care" for Michael.
The Guidelines allow sharing of "[t]he net cost (after tax credits) of work-related child care should be added to the basic obligation if incurred." Pressler & Verniero, supra, Appendix IX-A to R. 5:6A, ¶ 9. "Qualified child care expenses" include
expenses . . . necessary for the employment or job search of the parent. Child care expenses should be reasonable and should not exceed the level required to provide quality care for the child(ren) from a licensed source. Only the net cost of child care (after the federal tax credit is deducted) is added to the basic award.
[Pressler & Verniero, supra, Appendix IX-B to R. 5:6A, cmt. regarding Line 16 (emphasis added).]
The judge inadequately addressed the reasonableness of the cost in the first instance except to mention defendant's lack of visitation required weekend child care. Her opinion found child care was $1,500 per month; however, the itemized list of the child's needs also added $1,117 per month in nanny related expenses, which were not explained. Further, there is no consideration of the child care credit or the employer provided child care benefit. We emphasize the importance of specific factual findings on this issue, especially in light of plaintiff's sworn federal income return statement that she annually spends $14,405 on child care for Michael, and defendant's arguments.
The judge also failed to reconcile plaintiff's testimony regarding other expenses attributed to Michael's needs, which were significantly less than the sums she reported on her CIS. Plaintiff is obligated to provide true and accurate information; not mere guesses as was admitted during her testimony. Under cross-examination, plaintiff was hard-pressed to justify the higher amounts claimed for expenses such as diapers, vitamins, extracurricular activities, toys, and restaurants.
The conflicting testimony must be evaluated by the judge in her opinion, who instead apparently used figures listed on plaintiff's April 25, 2013 CIS to determine the child's needs. This too is problematic, as we are not informed how these personal expenses attributed to the child were determined. We note inconsistencies exist between the listed personal expenses discussed at trial and those itemized on plaintiff's April 25, 2013 CIS filed before trial, which incidentally increased by more than $4 000 per month from expenses reported one year earlier, at the inception of the litigation.
For example: plaintiff's first CIS listed food costs for herself and one child as $700 per month; the second lists food expense for plaintiff and two children as $1,200; and the judge found the food expense for Michael was $600. Another example is the judge's inclusion of one-third of an amount listed as "cable and telephone," which appears for the first time as a hypothetical "lifestyle" cost, not an actual expense, on plaintiff's May 9, 2012 CIS, and no amount for this was claimed on plaintiff's April 25, 2013 CIS. Plaintiff testified she resided in her parent's home and had no housing expenses. Thus, we are at a loss for why the cost was considered.
In light of all of the conflicting evidence, we are constrained to vacate the child support order grounded on the expenses listed in the May 21, 2014 supplemental opinion, but unaccompanied by factual findings because "Rule 1:7-4 requires a judge to provide findings of fact and conclusions of law on every [decision] decided by a written order that is appealable by right." Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002). See R. 1:7-4 (requiring a trial judge to accompany all opinions with findings of fact and conclusions of law). Elrom v. Elrom, 439 N.J. Super. 424, 443 (App. Div. 2015).
The omission of critical factual findings, supporting the attribution of these expenses solely to Michael, particularly in light of defendant's challenges, impedes our review and requires a remand on this issue. See Ducey v. Ducey, 424 N.J. Super. 68, 74 (App. Div. 2012).
We also disagree with the judge's stated rejection of defendant's arguments rebutting application of the Guidelines as "lacking merit." At the time of the hearing, plaintiff incurred no housing costs because she resided in her parent's home and had virtually no transportation costs because she was supplied with a company car and gasoline for which she is charged only $25 bi-weekly.
Nothing on plaintiff's paystub captured this benefit, which is "income" when calculating child support. Pressler & Verniero, supra, Appendix IX-B to R. 5:6A (including within sources of income "the value of in-kind benefits.").
Housing expenses comprise thirty-eight percent of each child support dollar, as calculated under the Guidelines. Pressler & Verniero, supra, Appendix IX-A to R. 5:6A ¶ 14(f); see also ¶ 14 (g)(1) (defining fixed costs as "those incurred for housing-related expenses such as dwelling, utilities, household furnishings"). Also, transportation costs are captured within the Guidelines "variable expenses," comprising thirty-seven percent of each child support dollar. Id. at ¶ 14(g)(1); see also ¶ 14(f) (explaining variable costs includes transportation and food).
If a parent does not incur a specific expense listed in a consumption category, a deviation from the Guidelines may not be justified. Id. at ¶ 8. However, the absence of all categories of housing and a majority of transportation expenses, certainly requires an analysis of why the Guidelines should be used to calculate a fair award. The facts in this case suggest sufficient good cause to deviate from the Guidelines support amount, but this issue was not adequately considered and analyzed.
Finally, the judge's opinion stated defendant's housing, airfare and private special education costs for Richard "may be tak[en] into account in determining the additional above [G]uidelines support amount." Yet, her opinion does not discuss whether or how these expenses factored into her conclusion defendant has the ability to meet Richard's needs and also pay all ordered support for Michael.
In our rough calculation, after taking defendant's net weekly income as listed on the Guidelines worksheet, which was multiplied by 4.3, we subtracted $2,000 for the extraordinary expenses related to Richard, defendant's relatively modest Georgia housing and transportation expenses, and the amount of support as ordered for Michael. The remaining funds appear insufficient to meet defendant's personal expenses and airfare costs to effectuate visitation.
A Guidelines-based award may be adjusted "to accommodate the needs of the children or the parents' circumstances" where good cause is shown. Pressler & Verniero, supra, Appendix IX-A to R. 5:6A ¶ 3. Further, absent demonstrated need, supplemental support may not be warranted. Factors that may demand an adjustment regarding a supplemental support include the extensive visitation expenses and private school tuition of defendant's special needs disabled child. Id. at ¶ 20. Alternatively, the extraordinary expenses defendant pays to effectuate his shared parenting in St. Louis may be considered in determining defendant's ability to pay supplemental support for Michael.
Defendant claimed he agreed to incur extra costs to provide Richard with consistency because of his special needs. Further, he asserted these sums, of approximately $1,000 per month for housing and $1,000 per month for schooling, were considered in lieu of additional support, which he asserted he would have been ordered to pay. His testimony was unrebutted. Although the judge mentions the housing and airfare costs incurred to effectuate shared parenting time, she did not explain why she apparently rejected the claim of additional child support.
If the judge justifiably rejected the claim for an additional child support credit, she did not explain the impact, if any, of these expenses on defendant's ability to pay supplemental support for Michael. The record shows Richard's needs are neither contrived nor unnecessary. Defendant's Georgia divorce settlement agreement states defendant's parenting time is tied to his maintenance of "a residence in the St. Louis area." Also, Richard's doctor explained the child was profoundly ill and in need of almost constant supervision while at public school for his safety and that of others. The approved public school facilities provided a minimal program for Richard, which based on his doctor's testimony, allowed him to attend school, but did not enable learning. The doctor's unrebutted testimony supports defendant's expense for private special needs education to addresses Richard's mental health needs and his learning disabilities.
We do not comment of the findings suggesting defendant must file an administrative action to require the Missouri school district to pay for his older child's private education costs, with the attendant cost of at least $10,000. Although we agree clarification of whether this is found to be a condition precedent or otherwise what effect resulted, if such an appeal is unsuccessful. We note plaintiff's expert's opinion was based on the assumption the education offered by the public school failed to meet the federal requirement of being appropriate, which would be the basis for reimbursement. Plaintiff's expert did not assess why he made that assumption, which if incorrect would topple his conclusion. Also, defendant's expert testified the school believed it had provided an appropriate education for the child, a fact with which he disagreed. He noted the child required constant monitoring by an adult, which was not provided by the school and performed by defendant. He also stated the child, although in the school building, was not learning because of his mental illness, which was not addressed adequately by the public curriculum.
Although some of these costs may not qualify as directly ordered support, as used in the Guidelines to reduce defendant's total weekly adjusted gross taxable income, nevertheless, these costs must be weighed when evaluating defendant's ability to pay supplemental support. The expenses are necessary to address Richard's significant needs.
Also omitted from Richard's support was the cost defendant expends for medical insurance and psychiatric care. The obligation mandated in the Georgia divorce decree requires defendant "shall" pay for Richard's medical insurance and half of any uninsured medical expenses. The medical insurance costs and psychiatric expense were regularly incurred and necessary for Richard, therefore, these costs should be included as additional support for Richard.
In short, we conclude the trial opinion did not fully explain whether defendant's claim of additional support was rejected, why it was not considered, or how the judge concluded defendant's ability to meet Richard's needs would not be undercut by the ordered support for Michael. The use of the Guidelines aids uniformity among child support orders, while allowing for understanding variables such as parental income and number of children. However, if facts presented rebut the standard application of the Guidelines, they must be fully assessed. Judges must never overlook the uniqueness of a matter and should not abrogate independent judgment when the square peg does not fit in the round hole. Here, the factual findings insufficiently address why the proofs did not rebut the straight application of the Guidelines.
In her cross-appeal, plaintiff challenges the three-year average of defendant's income. We have reviewed the argument identifying a math error. Our prior comments requiring the identification of the basis for each parties' gross income determinations adequately covers this issue.
Next, she believes the judge incorrectly captured defendant's stock income. We reject any argument suggesting a separate item of income should be added to defendant's year-end wages because defendant's gross income annually included stock redemptions. The finding is supported by the evidence, as defendant's final pay stubs for 2010, 2011, and 2012 included restricted stock receipts. Our determination to reject plaintiff's claim is tempered with the prior determination requiring explanation of the basis for gross income calculations for each party.
We also reject plaintiff's assertion for creating a Callahan trust and payment for Michael's anticipated college costs. See Callahan v. Callahan, 142 N.J. Super. 325, 329-31 (App. Div. 1976). Callahan discusses the court's authority to impose a constructive trust. Our Supreme Court has "caution[ed] courts generally that a constructive trust is a powerful tool to be used only when the equities of a given case clearly warrant it." Flanigan v. Munson, 175 N.J. 597, 611 (2002). The suitability of imposing a constructive trust must be established "by clear, definite, unequivocal and satisfactory evidence." Gray v. Bradley, 1 N.J. 102, 104 (1948). We find no basis to interfere with the judge's supported conclusions. Plaintiff's claims for a trust for possible future expenses because defendant has chosen not to be a part of Michael's life is emotional, speculative, and not supported by evidence to justify need.
Plaintiff also requests, for the first time, application of the other dependent deduction when computing child support for Michael. The "other dependent deduction" is a "theoretical support award for legal dependents of the obligor who are not the subject of the action and for whom no current order of support exists." Fall & Romanowski, New Jersey Family Law, Relationships Involving Children § 35:2-1(d)(2) at 648 (2015); see also Pressler & Verniero, supra, Appendix IX-B to R. 5:6A, cmt. to Line 2d of the Guidelines worksheet.
We reject this claim first because it was not raised before the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[A]ppellate courts will decline to consider questions or issues not properly presented to the trial court."). Second, because plaintiff failed to provide proof of the current income of George's father. See Pressler & Verniero, supra, Appendix IX-B to R. 5:6A, cmt. regarding Line 2d of the Guidelines worksheet ("A parent must disclose the gross income of the other parent in the alternate family as a condition to the right to claim this deduction.").
Also, we reject as erroneous the suggestion that extracurricular activities are extraordinary expenses under the Guidelines, requiring separate allocation. Plaintiff offered no evidence of the required "predictable and recurring extraordinary expenses for the child," which would allow these sums as supplemental support. Id. at cmt. to Line 12 of the Guidelines worksheet. The judge's findings the activities plaintiff discussed as covered within the Guidelines support is supported.
We agree the judge failed to explain why support was not payable by wage garnishment. Our review of the record discerns no basis to deviate from that accepted procedure. Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290, 208-08 (App. Div. 2007) (citing N.J.S.A. 2A:17-56.8; R. 5:7-5(b)). Rule 5:7-4(a) provides: "[a]ll orders that include child support shall be paid through immediate income withholding from the obligor's current and future income, unless the parties agree in writing to an alternative arrangement, or either party shows and the court finds good cause for an alternative arrangement." The judge must provide a basis for not imposing a wage execution.
Relying on the judge's statement of reasons, we reject plaintiff's claim the judge abused her discretion in the ordered repayment of arrearages, maintaining life insurance, and denying plaintiff's request for counsel fees and costs. R. 2:11-3(e)(1)(A).
In conclusion, we vacate the child support order dated May 30, 2014, and remand this matter for further proceedings. The judge may determine the manner in which she completes the remand proceedings. Her final determination must recite and elaborate upon all factual findings, which support expressed legal conclusions. More specifically, in the first instance, the judge must determine whether the Guidelines apply to this case, understanding plaintiff has no housing or transportation expenses. If the Guidelines are disregarded or modified, the reasons for same shall be set forth in the findings, as well as on page two, section three of the Guidelines worksheet.
Second, if defendant successfully rebuts application of a Guidelines calculation, the basis for the determination of child support for Michael must be specified and the child's specific needs for support must be articulated, in light of the conflicting evidence — plaintiff's divergent CISs and trial testimony. In doing so, the judge must calculate the appropriateness, accuracy and reasonableness of plaintiff's claimed expenses stating the support for each. Most significant, the claim for child care costs in excess of $30,000 per year must be evaluated in light of evidence the nanny's role is not limited to caring for Michael and plaintiff's averment on her income tax return that the actual child care expense is less than half the cost ascribed to retain the nanny. The judge must assess what part of the expenses represents reasonable child care. The federal child care credit and the credit provided by plaintiff's employer must be deducted from the computed reasonable child care cost.
Third, it is imperative to detail the parties' income determinations; findings as stated are unclear and not reconcilable with the evidence. Using income averaging is appropriate, but the judge must clearly identify the methodology followed to reach the respective incomes used to calculate support and why use of another period did not more accurately reflect the parties' respective incomes. In short, the calculations should not leave any question of what was considered in the computation, and why these sums were used.
We also reverse the provision allowing payment through probation without benefit of a wage attachment and require the judge on remand to make findings on whether good cause exists. Absent good cause, a wage order is required.
Finally, we affirm the denial of an award for college costs, as set aside in a Callahan trust, funds for extracurricular activities, and the denial of counsel fees. R. 2:11-3(e)(1)(A). We also defer to the judge's discretion of setting the arrearage repayment and ordering the face amount of life insurance as security for support. "Each case must stand on its own facts and deference must be given to the trial court's ability to weigh the equities and take appropriate action." Meerwarth v. Meerwarth, 71 N.J. 541, 544 (1976).
Affirmed in part, reversed, and remanded in part. 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