Opinion
No. A-3422-05T1
Submitted December 12, 2006
Decided January 17, 2007
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-774-04.
Before Judges Coburn and Gilroy.
Neal M. Frank, attorney for appellant.
Lomberg Del Vescovo, attorneys for respondent (Paul Lomberg and Janet S. Del Gaizo, on the brief).
Defendant Donna Fiore-Ortiz appeals from a post-judgment order entered in the Family Part on December 16, 2005, that, among other matters, reduced plaintiff Luis Ortiz's child support obligation from $2,000 per month to $199 per week. Defendant also appeals from the order of February 3, 2006, denying her motion for reconsideration. We affirm.
Following a twelve-year marriage, the parties were divorced on May 30, 2002. Two children were born of their marriage: Jason, born May 15, 1991; and Suzanne, born March 3, 1994. The judgment of divorce incorporated a Property Settlement Agreement (PSA) dated April 29, 2002, which provided for joint legal custody, with defendant named as the parent of primary residence, and payment of child support by plaintiff in the amount of $2,000 per month. The PSA provided that the child support amount was based on plaintiff earning $50,000 per year and defendant earning $0 per year. On October 17, 2005, plaintiff filed a motion seeking to enforce the parenting-time provisions of the PSA, in addition to reducing his child support obligation based upon changed circumstances caused by a reduction in his income. Defendant opposed the motion and cross-moved seeking to compel plaintiff to pay child support arrearages and for other relief. Defendant did not move for a change in venue.
On December 16, 2005, the motion judge, having determined that plaintiff had not established changed circumstances by a reduction in his income, granted plaintiff's request for a downward modification of child support, concluding that the reduction was warranted because of defendant's current employment. The judge concluded that defendant's employment, earning $750 gross per week, constituted changed circumstances, and recalculated plaintiff's child support obligation pursuant to the Child Support Guidelines (the Guidelines), Pressler, Current New Jersey Court Rules, Appendix IXA to R. 5:6A at 2217 (2007). The judge granted defendant's cross-motion compelling plaintiff to pay child support arrearages in the amount of $800 per month from May 1, 2005, to October 17, 2005, or $3,938.91. A confirming order was entered on December 16, 2005; however, the order did not provide the date when the child support arrearages were to be satisfied. On December 23, 2005, defendant filed a motion for reconsideration, and the motion was denied. On February 3, 2006, a confirming order was entered, providing in part:
During the December 16, 2005 argument the [c]ourt denied plaintiff's request for a modification of child support based upon the [c]ourt finding of no change in circumstances. The [c]ourt found that plaintiff's income had not decreased. However, the [c]ourt found that a modification in support was warranted based upon a change in circumstances of defendant, who previously did not work but is currently earning an income which was used in the child support guidelines.
On appeal, defendant argues that "the court erred in reducing the plaintiff's child support obligation after having determined that the plaintiff's financial circumstances had not changed." Defendant requests that in the event of a remand "the county of venue should be transferred to Monmouth County where the defendant resides with the minor children of the marriage."
Defendant raised as an issue in her notice of appeal that the trial court erred "in failing to provide in its [o]rder any guidelines for payment of child support arrears to [defendant]." Although defendant referenced this issue in the last sentence of the statement of facts contained in her brief, it was not argued. Accordingly, we deem the issue waived. Pressler, Current N.J. Court Rules, comment 4 onR. 2:6-2 (2007).
The trial court used plaintiff's 2004 income of $51,000 per year and defendant's current income of $30,000 per year in recalculating child support. Utilizing the Guidelines, the court arrived at the parties' obligations of 44.51% to defendant and 55.49% to plaintiff. Defendant argues that the trial court's methodology in computing the child support obligation would have been appropriate if plaintiff's agreed upon child support obligation had been based on the Guidelines and plaintiff's previous income of $50,000 per year. Defendant contends, however, that although the PSA states that plaintiff's child support obligation was based upon plaintiff earning $50,000 per year, his agreement to pay that amount, more than twice the Guidelines figure, suggests that there must have been other considerations involved. Defendant asserts that it is unfair to calculate plaintiff's child support obligation based upon an imputed income of $5[1],000 per year by adhering to the Guidelines when the original agreement ignored them. Defendant further contends that plaintiff's obligation should have been based upon the agreed $2,000 per month child support obligation, as impacted by defendant's gross income of $750 per week, which would have resulted in a smaller reduction in plaintiff's child support obligation.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding."Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We have carefully considered defendant's argument in light of the record and conclude that the issue presented is without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons expressed by the motion judge in her decision of December 16, 2005, as supplemented by the reasons expressed in her order of February 3, 2006, denying reconsideration. Notwithstanding, we add the following comment.
Defendant does not challenge that her newly-obtained employment constituted changed circumstances. Defendant asserts that the child support obligation agreement contained in the PSA was an enforceable agreement and supersedes any Guidelines consideration. We disagree. Child support obligations are always subject to judicial review and modification. Lepis v. Lepis, 83 N.J. 139, 146 (1980). Except for "good cause" as stated in Rule 5:6A, "[t]he [G]uidelines . . . shall be applied when an application to establish or modify child support is considered by the court." R. 5:6A. See Winterberg v. Lupo,300 N.J. Super. 125, 133 (App.Div. 1997) (holding that the Guidelines are applicable on modification motions). We are satisfied that the trial judge properly applied the Guidelines in recalculating the parties' child support obligations. Good cause to depart from the Guidelines was not established.
Because we affirm the trial court's order of December 16, 2005, reducing plaintiff's child support obligation, we do not address plaintiff's arguments concerning defendant's failure to comply withRule 4:49-2 in moving for reconsideration, nor defendant's request for a change in venue.
Affirmed.