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Loro v. Del Colliano

June 06, 2002

LAURA J. LORO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
GERALD DEL COLLIANO, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM- 04-23126-87.

Before Judges Wallace, Jr., Carchman and Wells.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2002

This appeal again raises issues that we recently addressed in Issacson v. Issacson, 348 N.J. Super. 560, 581-82 (App. Div. 2002), certif. denied, N.J. (2002), and requires us to consider the modification of a child support award where the supporting parent is a "high-income earner" and the income of the parties exceeds the child support guidelines. We focus on the "incidental benefits" that may accrue to the custodial parent of a child who benefits from a supporting parents "good fortune." We conclude that the judge properly increased child support to $700 per week but failed to adequately address the custodial parent's entitlement to nonessential items of support, specifically, improvements to the custodial home and furniture for the child. He also erred in his methodology for the award of counsel fees. Accordingly, we affirm that portion of the order of July 14, 2000, increasing child support from $500 per week to $700 per week and reverse and remand for further proceedings as to: (a) the denial of nonessential benefits to the child and custodial parent; and (b) the award of counsel fees to plaintiff. In all other respects, the orders under appeal are affirmed. *fn1

I.

We address these important issues in the following factual context. Following a four-year marriage, plaintiff Laura L. Loro filed a dissolution complaint against defendant Gerald Del Colliano. After contentious litigation, the matter was resolved, and a judgment of divorce was entered on June 13, 1991. One child was born of the marriage -- Daria, born March 6, 1984 -- and sole custody was awarded to plaintiff. Under the terms of the judgment, defendant was ordered to pay $1,500 per month in rehabilitative alimony for a period of two years as well as $375,000 in equitable distribution paid in several installments, with the balance to be paid over a ten- year period. Defendant was also required to pay $2,166.67 per month (or $500 per week) in child support. At the time of the entry of judgment, defendant earned approximately $630,000 per year.

The parties significantly disputed their respective relationships with Daria. Daria has suffered from various physical and emotional difficulties for several years, although as of March 1999, she apparently had made significant progress in relieving some of these problems. According to plaintiff, defendant rarely exercised his visitation rights, was controlling, insisted that Daria "do things his way," and, according to plaintiff, "Daria has felt abandoned emotionally and financially" by defendant.

Defendant described a different relationship. He claims that he loves his daughter, but asserts that plaintiff has dictated the terms of their relationship and "poisoned" Daria's attitude towards him, precluding a meaningful relationship. According to defendant, plaintiff has been a cause of Daria's emotional problems, and he alleges that at age fifteen, plaintiff still slept with Daria, caused Daria's eating disorder, interfered with his relationship with Daria, and caused Daria to miss significant time from school. Plaintiff denied these allegations and insisted that she "begged" defendant to become involved in Daria's life.

Defendant owned a business called Inside Radio, Inc., "a Cherry Hill based company which publishes a daily publication about the radio broadcasting industry." He was also a former television and radio broadcaster, and served as a program director for two radio stations. As we have noted, at the time of the entry of the judgment of divorce, defendant earned in excess of $600,000 per year. During 1999, his earnings exceeded that amount, and his gross income approximated between $800,000 and $1,000,000. In either circumstance, defendant's ability to pay any reasonable amount of child support or any of the claims in issue here is not in serious dispute.

Defendant described his assets as including his four houses, valued at $3,000,003, with existing mortgages of $2,393,000, for a net value of $610,000. *fn2 He also had a money market account valued at $14,000, two stock accounts with a total value of $650,000 and an IRA valued at $243,000. The parties disputed the value of defendant's business; defendant argued the business had a value of $1,000,000, while plaintiff suggested a value approximating $15,000,000. Neither party disputed that whatever the value, the business generated a substantial salary for defendant, which was used to satisfy any support or other obligations imposed by the court. Defendant's only liabilities at the time he filed his Case Information Statement (CIS) were the mortgages noted above and the balance of his $375,000 equitable distribution obligation to plaintiff, which he satisfied in July 2000.

Plaintiff's financial picture was decidedly different from that of defendant. According to her January 1995 CIS, plaintiff earned $6,760 in income in 1993, and had $16,191 in unearned income. Her net annual income was $19,951, and her monthly gross income was $973.11. In 1994, plaintiff's gross earned income was $11,677.37. She listed total expenses of $5,764 per month that year, including $2,379.26 in shelter expenses, $442 in transportation costs, and $2,943 in personal expenses. Her assets included the home in which she lived, valued at $180,000, with a $140,000 mortgage, and various bank accounts and CDs valued at approximately $90,000. She had credit card debt of approximately $6,500.

As time progressed, according to plaintiff, her income was reduced. In her April 1999 CIS, plaintiff listed gross earned income in 1998 of $708, and unearned income of $10,079. From January 1999, through April 16, 1999, she earned $1,500. Her unearned income included mainly child support and equitable distribution payments. Plaintiff's credit card debt was slightly less than in 1994, but she had a $6,000 debt for a car that did not appear in her 1994 CIS.

Plaintiff listed her monthly expenses in her 1999 CIS as $2,348.58 for shelter, $769.92 for transportation, and $3,275 for personal expenses, for a total of $6,393.50. Her assets included her home and the bank accounts and CDs noted above; however, the value of the latter assets had declined from approximately $90,000 in 1995 to approximately $40,000 in 1999.

Pursuant to a September 30, 1999 court order, plaintiff submitted a revised schedule of monthly expenses describing additional expenses that, if borne by defendant, would allow Daria to share in his good fortune. Her revised budget totaled $8,175.58 per month. She explained that the increase was due to budgetary enhancements that would allow Daria to enjoy the lifestyle to which she was entitled, given defendant's income and assets. The budget did not include other nonessential items, such as repairs to the family home, which would permit Daria to enjoy an even more comfortable lifestyle.

Plaintiff explained that she was able to meet her and Daria's monthly expenses by spending her liquid assets, thus causing the decrease in her bank accounts and CDs. Further, she had incurred large credit card bills, and used her equitable distribution payments to meet these expenses. Plaintiff feared that, ultimately, she and Daria might have to leave their home as it was becoming unaffordable.

On June 23, 2000, the judge issued his first order, which maintained plaintiff's custody and raised defendant's child support obligation to $700 per week. The judge rejected several specific requests that plaintiff had sought for Daria; however, the judge did order defendant to: (1) pay all of Daria's medical insurance and unreimbursed medical bills; (2) pay for a "reliable and insured" car and cell phone for Daria when she obtained her driver's license; and (3) pay for tickets to twenty Philadelphia Flyers hockey ...


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