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Elkin v. Sabo

April 29, 1998

RICHARD S. ELKIN, PLAINTIFF/APPELLANT,
v.
ROSEANNE SABO, F/K/A ROSEANNE ELKIN, DEFENDANT/RESPONDENT.



Before Judges Pressler, Conley and Wallace.

The opinion of the court was delivered by: Wallace, Jr., J.A.D.

[9]    Argued: March 24, 1998

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County.

In the first appeal of this matter, we concluded that the child support plaintiff was ordered to pay in the judgment of divorce left him impoverished. In an unpublished opinion, we remanded for the trial judge to reconsider the child support issue, giving "due consideration to the parties' respective assets and other resources." On remand, the trial Judge reduced plaintiff's child support obligations, but increased his share of unreimbursed health related expenses and added the requirement that plaintiff pay 70% of defendant's work related child care expenses. Further, the Judge added an additional financial element because of plaintiff's alleged non-traditional visitation and concluded that plaintiff's Employee Stock Option Plan (ESOP) distribution received after the judgment of divorce was subject to equitable distribution. In addition, the Judge denied plaintiff's application to have defendant replace funds she used that belonged to the children and denied all counsel fees.

On appeal, plaintiff challenges: (1) the trial Judge's findings of fact and the amount of the child support ordered; (2) the equitable distribution of his ESOP; (3) the failure to require defendant to replace the children's money; and (4) the failure to award him counsel fees. We affirm in part, reverse in part, and remand for reconsideration.

I

Plaintiff makes several arguments in his contention that the trial judge made erroneous findings on the issue of child support. First, he claims the Judge erred in failing to include the contributions of defendant's boyfriend as a factor. At the hearing on remand, defendant testified that she borrowed $9,000 over an eighteen month period from her boyfriend to pay for legal fees and that he contributed an average of $30 per week to cover any expenses resulting from his living in the house. In addition, she testified that her boyfriend made non-financial contributions such as repairs to the home.

In reaching his decision on child support, the trial Judge determined that plaintiff's net income was $697 per week and that defendant's net weekly income from her two part-time jobs ($272) and her dividends and interest ($26) totaled $298 per week. Thus, the Judge did not include any monies defendant received from her boyfriend as part of her income in finding a joint net weekly income of $995. The Judge applied the Child Support Guidelines (the Guidelines) for two children, which indicated a support range between $298-$329 per week. The Judge chose a figure of $314 as the total support amount. Because plaintiff's net income was 70% of the combined available income, he ordered plaintiff to pay $220 per week in child support.

Plaintiff contends that the $30 per week defendant receives from her boyfriend plus another $116.30, representing the $9,000 loan over an eighteen month period, should have been included in defendant's income. Plaintiff urges that including these amounts would result in total net weekly income for defendant of $444 which would have reduced his percentage of the total income to 61%. Thus, plaintiff claims his weekly support payment should be $202, and not $220.

Our Supreme Court has adopted specific Guidelines to assist Judges in determining a parent's child support obligation. R. 5:6A. These Guidelines apply to the initial determination of child support and to motions for modification. Italiano v. Rudkin, (Italiano), 294 N.J. Super. 502, 506 (App. Div. 1996); Zazzo v. Zazzo, 245 N.J. Super. 124, 129 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). The critical premise upon which the Guidelines are predicated is that the children will benefit from the living standards of both parents who each have a shared obligation to support their children. The Guidelines seek to implement this principle by determining the total amount of the child support obligation and then dividing this sum proportionately between the parents.

The Guidelines give examples of the types of income that are included in gross income. See Pressler, Current N.J. Court Rules, Appendix IX-B, "Use of the Child Support Guidelines" (1998). Simply put, gross income is "all earned and unearned income that is recurring or will increase the income available to the recipient over an extended period of time." Ibid.

It is clear that under the Guidelines, the weekly rent defendant receives from her live-in boyfriend could have been included as part of her gross income. The Judge found, however, that defendant was not receiving a significant financial benefit from her boyfriend and that he was not utilizing monies or resources that would otherwise be utilized to meet the needs of the children. Further, the Judge found that defendant's boyfriend made non-financial contributions to the household from which defendant financially benefitted and that the $9,000 loan would probably not be repaid. In determining that defendant's boyfriend's contribution should not be included, the Judge essentially concluded that the benefits received by defendant were offset by a like amount of increased expenses, resulting from the boyfriend's presence in the home.

If we were deciding this issue in the first instance, we might well reach a different Conclusion. However, we may "not disturb the factual findings and legal Conclusions of the trial Judge unless [we are] convinced that they are so manifestly unsupported by and inconsistent with the competent relevant and reasonably credible evidence as to offend the interests of Justice." Pascale v. Pascale, 113 N.J. 20, 33 (1988)(quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). There was sufficient credible evidence for the trial Judge to conclude that the boyfriend's contributions should not be included in calculating defendant's income and we are bound by that finding.

We note also that while the trial Judge did not include the loan from defendant's boyfriend as income, he also did not include the monies plaintiff borrowed from his father and his aunt as gross income to the plaintiff. Thus, the Judge did not factor in the loans that either party incurred in trying to meet their financial obligations ...


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