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Pascale v. Pascale

July 10, 1995

DEBRA PASCALE, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
JAMES PASCALE, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 274 N.J. Super. 429 (1994).

The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Stein and Coleman join in Justice Garibaldi's opinion.

The opinion of the court was delivered by: Garibaldi

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

DEBRA PASCALE v. JAMES PASCALE (A-91/92-94)

Argued February 14, 1995 -- Decided July 10, 1995

GARIBALDI, J., writing for a unanimous Court.

Debra and James Pascale were married in 1977. They have three children. On October 28, 1990, Debra filed a complaint for divorce against James. On March 19, 1991, the trial court, on an interim basis, ordered James to pay sixty percent of all shelter, transportation, and other costs for the support of the children, and allocated other costs between the parties. On September 23, 1991, another trial court issued an order granting joint custody of the children, designating Debra as the "residential custodial parent," and setting forth a schedule of visitation for James. During the school year, James would have "parenting time" of Wednesday and Thursday evenings from approximately 5:30 to 8:30 p.m., and a twenty-four hour overnight stay each weekend. During the summer, James would have the children overnight on both Wednesday and Thursday. The parties would alternate major holidays with the children.

A dual judgment of divorce was granted by the trial court following a six-day trial. Under the terms of the divorce, the court incorporated by reference the child custody and "parenting time" order of September 23, 1991. The trial court refused James' request to term the custody arrangement "nontraditional." The court did not find James exempt from paying a proportionate percentage of his salary to Debra, which equals fifty-eight percent of the amount needed to support the children. The trial court based its child support award on Debra's gross annual income of $52,500 and James' gross annual income of $72,500. Debra was ordered to contribute, from her own salary, support equalling forty-two percent of the childrens' necessary expenses per year. To determine the amount of support, the court applied the Child Support Guidelines for income levels up to $52,000 of combined income, and then supplemented that guideline award with an additional support amount based on the remaining family income, the factors enumerated in N.J.S.A. 2A:34-23 (section 34-23), and the quality of life desired by both parties for their children. This led the court to order James to pay child support to Debra of $1,250 per month for the first twelve months, to be reduced to $1,150 per month for the remainder of their childhood, with further reductions as each child becomes emancipated.

On appeal, the Appellate Division reversed the decision of the trial court, finding that the Pascales' joint custody arrangement was nontraditional and that the trial court had failed to explain its rationale for the child-support award. The matter was remanded to the trial court for reconsideration of the child-support order.

The Supreme Court granted Debra's petition for certification to review the Appellate Division's ruling that the custody and visitation agreement was nontraditional and that, therefore, the Child Support Guidelines, or an extrapolation therefrom, were not applicable. The Court also granted James' petition for certification to review the Appellate Division's finding in respect of the equitable distribution of stock options acquired by Debra shortly after marriage ended.

HELD: James and Debra Pascale entered into a traditional custody arrangement that provided that they share joint legal custody of their children, but that Debra be the primary caretaker. The parent who acts as the primary caretaker for the children after divorce should retain authority over the disbursal of the child support that both parents must provide. The parameters established at N.J.S.A. 2A:34-23a should guide a court when determining child-support awards in a traditional custody arrangement when the parents' combined income exceeds the $52,000 limit covered by the Child Support Guidelines.

1. Child support is the right of the child and the responsibility of both parents after divorce. In establishing the necessary level of child support, our courts look to the Child Support Guidelines, which apply to a combined family income of up to $52,000. If the combined family income exceeds $52,000, the trial court has the discretion to apply the guidelines up to that amount, using Appendices IX-A and IX-B to determine the baseline amount or percentage of the combined income attributable to both the primary and secondary caretakers, and to supplement that preliminary figure with an additional support amount based on the remaining family income and the factors enumerated in section 34-23a, particularly a(4), which requires consideration of the tasks of the primary caretaker. A court should also consider the factors set forth in section 34-23 in "nontraditional" custody arrangements. The key to both the Guidelines and the statutory factors is flexibility and the best interest of children. (pp. 6-12)

2. In the future, the parties should differentiate between "joint legal custody" and "joint physical custody." Joint legal custody is defined as authority and responsibility for making "major" decisions regarding the child's welfare. Joint physical custody is defined as joint responsibility for day-to-day decisions and the exertion of continuous physical custody by both parents over the child for significant periods of time. In New Jersey, cases of joint physical custody are rare, however, there is a wide variety of parenting time for noncustodial parents. (pp. 12-16)

3. Because the terms custodial and non-custodial parent fail to describe custodial functions accurately, the Court adopts the term "primary caretaker" to refer to the "custodial parent" and the term "secondary caretaker" to refer to the "non-custodial parent." The primary caretaker has the greater physical and emotional role, performing the everyday tasks of child-rearing. Factoring the role of the primary caretaker in child-support matters will serve the child's best interests. In determining the level of child support, courts must consider: the tasks performed by the primary caretaker on behalf of the children of the divorce; the necessity that the primary caretaker receive most of the secondary caretaker's child support; and the necessity that the primary caretaker decide how that support is to be disbursed to provide for the children. In order to take care of the child's basic needs, the primary caretaker should be accorded autonomy over the day-to-day structure of and disbursal of child support for the new family unit. (pp. 16-19)

4. The Pascales' custody arrangement is traditional, with Debra acting as the primary caretaker. Based on the trial court's detailed analysis of the children's expenses and its just determination of which parent should pay for particular expenses, the trial court properly calculated the child-support contributions of each parent according to the governing procedure for divorced parents whose family income exceeds $52,000. The trial court took careful measures to assure that each parent paid their fair share of the children's needs, and gave the primary caretaker the autonomy and authority to disburse the support ordered by the court, allowing the secondary caretaker to retain a small portion of the amount of total need of parenting time. (pp. 19-29)

5. Stock options awarded after the marriage has terminated but obtained as a result of efforts expended during the marriage should be subject to equitable distribution. Thus, the two stock options acquired by Debra on November 7, 1990,just ten days after the filing of the divorce complaint, are subject to equitable distribution. The Court affirms only so much of the Appellate Division decision that includes, for purposes of equitable distribution, the option for 1,800 shares of stock. The Court reinstates the trial court's order for child support in its entirety and its inclusion of the option for 4,000 shares of stock in the marital estate for purposes of equitable distribution. (pp.29-37)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion.

GARIBALDI, J.

Debra and James Pascale are divorced, but share joint legal custody of their three minor children. Debra maintains physical custody of the children and is their "primary caretaker." This appeal involves the child support that both parents must contribute toward their children's support. In resolving that issue, we must determine whether the Pascales' custody arrangement is "nontraditional" and whether the parent who acts as the "primary caretaker" for the children after divorce should retain authority over the disbursal of child support that both parents must provide. We decide those issues not in the context of a father or mother's custody rights, but in the context of the responsibilities of both parents to their children. The lodestar of our consideration continues to be the best interests of the child.

The other question presented by this appeal, unrelated to the first question, is whether stock options issued to Debra immediately after she filed for divorce are subject to equitable distribution.

I

CHILD SUPPORT

A. FACTS

Debra and James married on June 19, 1977, and had three children: a son, born in 1984, and twin daughters, born in 1986. Marital difficulties developed, and Debra filed a complaint for divorce against James on October 28, 1990. In response to Debra's motion for pendente lite support, the trial court on March 19, 1991, issued an order that required James to pay sixty percent of all shelter, transportation, and other costs for the support of the children, and allocated other costs between the parties.

On September 23, 1991, another trial court issued an order that granted the couple joint custody of the children, set forth a schedule of visitation for James, and designated Debra as the "residential custodial parent." Pursuant to that order, the trial court structured James's visitation or "parenting time" in the following manner. For the ten-and-one-half-month school year, James would have the children for dinner from approximately 5:30 p.m. to 8:30 p.m. on Wednesday and Thursday evenings; and each weekend, he would keep the children for a twenty-four-hour, overnight stay. During the approximately seven-week summer, the trial court ordered James to keep the children overnight on both Wednesday and Thursday. In addition, the trial court ordered the parties to alternate major holidays with the children.

By order dated April 3, 1992, the trial court compelled James to vacate the marital residence. At trial, James testified that he had moved to a fully furnished, three-bedroom house in Lawrence Township, New Jersey, approximately fifteen miles from the marital residence. However, after he had vacated the marital premises, James did not continue to comply with the March 1991 order to pay Debra sixty percent of the expenses needed for the children and maintenance of the marital home.

Following a six-day trial, the trial court granted a dual judgment of divorce. Under the terms of the divorce, the trial court incorporated by reference the child custody and "parenting time" order of September 23, 1991. The court clarified that James was not seeking and had not sought sole or joint physical custody of the children. The court refused James's request to term the custody arrangement between the parties as "nontraditional." The court found that James was not exempt from payment of a proportionate percentage of his salary to Debra, which equals fifty-eight percent of the amount needed for the support of their children. At the time of the trial, the court assumed that Debra had a gross annual income of $52,500 and James had a gross annual income of $72,500. In addition, the trial court ordered Debra to contribute from her own salary child support equalling approximately forty-two percent of the children's necessary expenses per year. Specifically, the trial court applied the Child Support Guidelines for income levels up to $52,000 of combined income, and then supplemented that guideline award with an additional support amount based on the remaining family income, the factors enumerated in N.J.S.A. 2A:34-23, and the quality of life desired by both parties for their children. That led the trial court to order James to pay child support to Debra of $1,250 per month for the first twelve months, to be reduced to $1,150 per month for the remainder of their childhood, with further reductions as each child becomes emancipated. Recognizing both parents' strong interest in remaining involved in the lives of their children but also recognizing the greater responsibility borne by Debra in caring for the children, the trial court ordered that James pay his percentage of child support to Debra.

Both parties appealed. The Appellate Division reversed the trial court, finding that the Pascales' joint custody arrangement was nontraditional. In so doing, the Appellate Division defined a "nontraditional" custody arrangement as "visitation [in excess of] . . . one day per week" for the non-custodial parent. 274 N.J. Super. 429, 443 (1994). The Appellate Division recognized that the trial court had followed the applicable Child Support Guidelines and the statutory criteria from N.J.S.A. 2A:34-23 to establish a support order for that nontraditional custodial arrangement, but found that the trial court had not explained its rationale for awarding $1,250 per month initially, which was to be reduced to $1,150 per month permanently on August 1, 1993. Id. at 444-45. The Appellate Division therefore remanded the matter to the trial court for reconsideration of the child-support order. Ibid.

Following the determination of the Appellate Division, each party filed a petition for certification. Debra objected to the Appellate Division's ruling that the custody and visitation agreement was nontraditional and that therefore, the Child Support Guidelines, or an extrapolation therefrom, were not applicable. James petitioned this Court for review of the Appellate Division's finding that only the option for 1,800 shares of stock should be included in the marital estate for purposes of equitable distribution.

This Court granted certification to both parties. 138 N.J. 266 (1994).

B. CHILD-SUPPORT LAW

Child support after divorce is necessary to ensure that a child's basic needs are provided by his parents, who might otherwise neglect their responsibilities to maintain the child. Children of divorce are twice as likely to live in poverty as children who remain in two-parent households. Suzanne Bianchi and Edith McArthur, U.S. Bureau of the Census, Family Disruption and Economic Hardship: The Short-Run Picture for Children 1-2 (1991). Children raised in a home with a female head of household live in poverty at more than four times the rate of children of couples who remain married. U.S. Bureau of the Census, Child Support for Custodial Mothers and Fathers 2 (1995) (hereinafter "Child Support"). The Legislature, therefore, has determined "that it is in the public interest to encourage parents [post-divorce] to share the rights and responsibilities of child rearing." N.J.S.A. 9:2-4.

The right to child support belongs to the child and "cannot be waived by the custodial parent." Martinetti v. Hickman, 261 N.J. Super. 508, 512, 619 A.2d 599 (App. Div. 1993) (citations omitted). The court reasoned that a child-support decision must be based on an evaluation of the child's needs and interests and not on the conduct of the parents. Ibid. In addition, "each parent has a responsibility to share the costs of providing for the child while she remains unemancipated. Lynn v. Lynn, 165 N.J. Super. 328, 342-43, 398 A.2d 141 (App. Div.), certif. denied, 81 N.J. 52 (1979)." Ibid. (other citation omitted). Most important, the non-custodial parent's failure in Martinetti to maintain ties with his daughter did not obviate his responsibility to contribute to her basic needs. Id. at 513.

Likewise, a non-custodial parent who did not undertake initially any of the financial burden of her children may not later escape responsibility to provide the custodial parent with funds for the continuing maintenance of her children. Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331, 603 A.2d 531 (App. Div. 1992). Rather, a rise in living expenses for the custodial parent obligated the non-custodial mother to begin to "shoulder some of the burden." Id. at 330. Finding that her voluntary departure from the world of gainful employment neither had foreclosed inquiry into the need for child support of her two children nor had negated her responsibility to supply that financial support, the court imputed income to her and imposed "a fair obligation to care for her first two children like her obligations to her second two." Id. at 331.

In a similar vein, Ross v. McNasby stands for the proposition that one parent's responsibility to support her child financially cannot be lessened by the other parent's interference "'with rights of custody or visitation granted by a court.'" 259 N.J. Super. 410, 414 (App. Div. 1992) (quoting N.J.S.A. 2A:4-30.45) (citing inter alia Daly v. Daly, 21 N.J. 599, 609, 123 A.2d 3 (1956)). In another recent case, the Appellate Division found that a non-custodial parent who had failed to provide sufficient child support to the working, custodial parent to buy his children winter coats could not later ask for a "credit" toward those arrears because he later paid for college tuition. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 539, 602 A.2d 741, (1992). The non-custodial parent's unmet responsibility to provide support to his children immediately after the divorce was not lessened by his later contributions to college education. Id. at 546. Because the responsibility to support runs from parent to child, not parent to parent, the custodial parent was not "unjustly enriched" by receiving sums and considering them overdue payments for the support of those children. Ibid.

This Court has consistently upheld the right of children of divorce "to be supported at least according to the standard of living to which they had grown accustomed prior to the separation of their parents." Ibid. (citing Lepis v. Lepis, 83 N.J. 139, 150, 416 A.2d 45 (1980)). The financial obligations of both custodial and non-custodial parents are "mainly determined by the quality of economic life during the marriage, not bare survival," post-divorce, for their children. Lepis, supra, 83 N.J. at 150. In addition, an increase in those children's needs, whether by maturation of those children, rising cost of living, or a "more unusual event," must be met by an increase in support by financially-able parents. Id. at 151. In determining both the amount of money necessary to raise children of divorce and the division of that obligation between working custodial and non-custodial parents, "the talisman of concern is always the welfare of the child." Guglielmo, supra, 253 N.J. Super. at 546.

That both parents share the obligation to support their children, irrespective of their marital status, is well established in this state. Child support is the right of the child and the responsibility of both parents, not a chip won or lost by ...


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