Opinion
DOCKET NO. A-1998-13T3
05-19-2015
TOBI TANGO, Plaintiff-Respondent v. WILLIAM F. CHRISTEN, Defendant-Appellant.
John Fiorello argued the cause for appellant (Fiorello, Puccio & Fiorello, LLC, attorneys; Mr. Fiorello, on the brief). Annette Verdesco argued the cause for respondent (The Anthony Pope Law Firm, PC, attorney; Ms. Verdesco, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1280-99. John Fiorello argued the cause for appellant (Fiorello, Puccio & Fiorello, LLC, attorneys; Mr. Fiorello, on the brief). Annette Verdesco argued the cause for respondent (The Anthony Pope Law Firm, PC, attorney; Ms. Verdesco, on the brief). PER CURIAM
In this post-judgment matrimonial matter, defendant appeals from paragraph three of the Family Part's September 27, 2013 order that increased his child support obligation to $318 per week, and the court's November 27, 2013 order denying his motion for reconsideration "as to the calculation of child support . . . ." We are constrained to reverse and remand because the trial court did not make findings of fact adequately explaining the basis for her re-calculation of child support.
The parties were married in October 1995 and divorced on December 15, 1999. They have one child, born in 1996. The parties share joint custody of the child, with plaintiff being designated as the parent of primary residence.
The parties' Property Settlement Agreement (PSA) required defendant to pay defendant $1100 per month (approximately $256 per week) in child support. The PSA provided that defendant would have overnight parenting time every other weekend.
The PSA required defendant to "maintain life insurance on his life for the benefit of the [parties'] child in the amount of $245,000.00 with [plaintiff] and [the child] being owners and beneficiaries until [the child's] emancipation . . . ." At the time of the child's emancipation, the PSA stated that defendant "shall be no longer responsible to carry said life insurance[,]" and that defendant and the child would "transfer their ownerships back to" defendant.
In August 2013, defendant filed a motion to reduce his child support payments. Defendant, who was now sixty-four years old, was working as a salesperson and earned approximately $90,000 in 2012. He stated that plaintiff earned approximately $37,000 that year working as a store manager, which was more than the $20,700 he asserted she earned in 2005 when support was last reviewed by the court.
Because of cost of living allowances, defendant's obligation had increased to $286 per week at the time he filed his motion.
In January 2013, however, plaintiff's employer advised him that he would no longer be paid a salary and, if defendant did not wish to retire, the employer would only pay him for the commissions he actually earned. At oral argument on his motion, defendant provided the judge with his last three pay stubs, dated August 2, August 16, and August 30, 2013. The August 30 pay stub stated that, as of August 23, 2013, defendant's year-to-date income was $52,906. Thus, defendant's average weekly income up to that date was approximately $1556 per week, and he was on a pace to earn about $81,000 in 2013. However, defendant told the judge that that his "salary for this year, for 2013, will be very, almost exactly the same amount of money that I made in 2012, 2011, 2010." As noted above, that figure was $90,000.
Defendant represented himself at oral argument, while plaintiff was represented by her attorney.
The August 2 pay stub was for $1721.15; the August 16 pay stub was for $230.47; and the August 30 pay stub was for $924.40. Thus, defendant earned a total of $2876.02 in gross wages for this six-week period.
We made this calculation as follows: August 23 is the 235th day of the year. Dividing this number by seven indicates that defendant had worked approximately thirty-four weeks by that date. By dividing defendant's year-to-date income of $52,906 by thirty-four, we have determined that his average weekly income at the time he filed his motion was $1556. In turn, multiplying that figure by fifty-two results in projected annual income for 2013 of approximately $81,000.
Plaintiff filed a cross-motion, also asking for a recalculation of defendant's child support obligation. Plaintiff submitted a certification in which she agreed defendant earned $90,000 in 2012 and that she earned $37,000 that year. To the extent that defendant was arguing that his income was falling because he was now earning only commissions, plaintiff asserted that defendant's new pay arrangement was a voluntary choice he made in consultation with his employer. Thus, plaintiff asked the judge to impute additional income to defendant to make up the difference.
Plaintiff stated that child support needed to be modified because defendant no longer had overnight parenting time with the parties' child. Defendant agreed that the child no longer spent overnights at his home.
Plaintiff also asked the judge to enforce the provision in the PSA requiring defendant to maintain $245,000 in life insurance until the parties' child was emancipated. In response, defendant admitted he no longer had a life insurance policy in this amount and argued that, based on his age, such a policy was prohibitively expensive. He offered to obtain a $100,000 policy.
Plaintiff requested additional relief in her cross-motion, but the judge's rulings on those requests are not at issue in the present appeal.
In a very brief oral decision, the judge stated she was going to calculate child support pursuant to the Child Support Guidelines and no longer give defendant credit for the overnights he previously spent with the parties' child. The judge did not fully explain how she determined the income figures she used for the Guidelines calculation. At one point, the judge stated she would use the three August 2013 pay stubs defendant had provided to determine his income. Later, however, the judge stated that defendant admitted "there has been no change in salary and there's been no change in circumstance. So I used the numbers that you, the salary that you've been making."
The judge appended the Child Support Guidelines - Sole Parenting Worksheet to her September 27, 2013 order, and set the new child support amount as $318 per week. The judge listed $711 as plaintiff's income, which approximates the $37,000 the parties agreed she earned in 2012 and the annual income she was continuing to earn at the time of the parties' motions.
For defendant, however, the judge listed his income as $2891 per week, which would mean that he had an annual income of $150,332. Nothing in the record supports that determination. If, as the judge stated, she relied upon defendant's admission that he still earned $90,000 per year, his weekly income would have been $1731, rather than $2,891. If, as required by the Guidelines, the judge determined defendant's income based on his average year-to-date income as reflected in his August 23, 2013 pay stub, defendant's weekly income would have been $1556, not $2891.
The Guidelines provide that, if child support is calculated after June 30, a judge should "use the year-to-date income figure from all documented sources [and d]ivide the total gross income from all sources by the number of employed weeks to determine the weekly gross income." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2653 (2015).
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The judge granted plaintiff's motion to require defendant to obtain $245,000 in life insurance as mandated by the PSA. The judge found that the language of the PSA was clear; the child was not emancipated; and defendant had not demonstrated he was unable to afford the coverage.
Defendant filed a motion for reconsideration limited to the judge's calculation of child support. Defendant pointed out that, based on his year-to-date income as set forth in his pay stubs, he was only projected to earn "approximately $80,000 and not $150,332.00 as reflected on the" Guidelines worksheet. He also provided a copy of his and his spouse's joint tax return for 2012, showing they had joint income of $207,000. Defendant stated, as he had in his prior motion, that he earned $90,000 of that figure, with his wife earning the remainder. However, he told the judge he did not know his spouse's exact income, "[o]ff the top of my head[.]"
The judge denied defendant's motion for reconsideration. The judge again did not explain how she determined that defendant's annual income was $150,332. Instead, the judge stated:
If the defendant seeks to prove to this [c]ourt that his salary is somewhat other than what the [c]ourt established it to be, then really he needs to prove that to the [c]ourt. I have tried to fish as best I could giving the defendant every benefit of the doubt. I have tried to go through the papers as best I could to ascertain what the salary, what his salary was. But when I don't have all of his information, including his 1040, I don't have his wife's salary information, it's virtually impossible for me to make that determination.This appeal followed.
Finally, the issue of credibility is an issue here. It is not uncommon for parents who pay spousal support to hide incomes. Let me be candid. I always have to be cautious with the party who wants to try to hide income from the [c]ourt.
On appeal, defendant argues the judge erred in her calculation of his child support obligation. We agree.
Child support orders are subject to modification pursuant to N.J.S.A. 2A:34-23 upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). The motion judge may revise child support when the party seeking modification satisfies the burden of showing a change of circumstances warranting relief or alteration of the prior order. Id. at 157. Significant changes in the income or earning capacity of either spouse, or in the circumstances of their children due to various events, may result in a finding of changed circumstances. See Colca v. Anson, 413 N.J. Super. 405, 415-16 (App. Div. 2010); W.S. v. X.Y., 290 N.J. Super. 534, 539 (App. Div. 1996).
Here, the judge properly exercised her discretion when she determined to modify defendant's child support obligation. Defendant no longer spent overnights with the parties' child and plaintiff's income had almost doubled since the last time child support was reviewed. Defendant also presented evidence, through his August 2013 pay stubs, that his own annual income was decreasing because his employer was now only paying him for the commissions he actually earned. However, even if, as the judge seemed to find, defendant's income had not yet fallen from the $90,000 he earned in 2012, a modification in support was still warranted based on plaintiff's increased income and the change in parenting time.
However, we conclude the judge mistakenly set defendant's weekly income at $2891. As stated above, there is nothing in the record to indicate that defendant was earning $150,332 per year. The parties agreed in their certifications that defendant earned $90,000 in 2012, which would be $1731 per week. At the time the judge considered the parties' support modification motions, defendant's year-to-date income indicated he was only earning $1556 per week. Thus, we are unable to discern any basis in the record for the judge's determination that defendant's weekly income was $2891.
Rule 1:7-4(a) clearly states that a trial "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.]" See Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis for a court's action). "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)).
The judge did not make any findings of fact to support her conclusion that defendant earned $2891 per week and that, based on that figure, his child support obligation should be increased to $318 per week. Therefore, we are constrained to reverse and remand for a recalculation of defendant's support obligation using accurate income figures for both parties.
Defendant also argues the judge erred in denying his motion to modify the amount of life insurance he was required to maintain under the PSA. However, defendant's notice of appeal was limited to a challenge to the "[t]hird paragraph of [the] September 27, 2013 [order] increasing [d]efendant's child support obligation to $318 a week [and the] Order of November 27, 2013 . . . in its entirety." The November 27, 2013 order was the result of defendant's motion for reconsideration of the $318 per week child support obligation.
"It is a fundamental [principle] of appellate practice that we only have jurisdiction to review orders that have been appealed to us." State v. Rambo, 401 N.J. Super. 506, 520 (App. Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009). "[O]nly the judgment or orders designated in the notice of appeal . . . are subject to the appeal process and review[.]" 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). Because defendant did not specify in his notice of appeal that he was appealing the judge's denial of his motion to modify of life insurance obligation, we decline to consider it at this time. On remand, defendant may raise this issue anew if he can demonstrate there has been a change of circumstances warranting a modification of the life insurance requirement.
Reversed and remanded. 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