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Kisala v. Kisala


October 16, 2007


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-370-03.

Per curiam.


Argued May 23, 2007

Before Judges A. A. Rodríguez and Collester.

Plaintiff Nsonsa Kisala appeals from an order of the Family Part on June 23, 2006, which directed in pertinent part the following:

1. Plaintiff's request to receive credit for his payment of [his son's] health insurance is DENIED without prejudice due to plaintiff's failure to provide the Court with written documentation regarding the insurance cost for [his son].

2. The parties consent to [his son] spending the summer with plaintiff from July 1, 2006 through August 20, 2006. Defendant shall have parenting time with [her son] from Friday July 7th to Sunday July 9th and July 21st through July 23rd.

3. While [his son] is residing with plaintiff this summer, plaintiff's child support shall be reduced by 37% pursuant to the Child Support Guidelines. Commencing July 1, 2006 plaintiff's child support obligation shall be $94.50 per week plus $30.00 towards arrears. However, commencing August 20, 2006, plaintiff's child support obligation shall be $150.00 per week plus $30.00 towards arrears. Plaintiff's child support obligation shall be paid via wage garnishment through Probation.

4. Plaintiff shall continue to pay defendant directly $25.00 per week as set forth on the Final Judgment of Divorce and May 4, 2006 Order.

6. Both parties shall enroll within thirty (30) days in the parenting class offered by the Red Cross. Plaintiff shall view the parenting film, "Don't Divorce the Children." Plaintiff shall be contacted by the Family Division to set up an appointment to view the film. . . .

Plaintiff and defendant Beatrice Kisala were married in September 1997. One child was born of the marriage on August 19, 1998. The parties separated in October 1999. On December 16, 2002, a final judgment of divorce was entered dissolving the marriage. The judgment incorporated the parties' agreement to share joint legal custody of their son with residential custody remaining with defendant. Plaintiff also agreed to pay $150 per week in child support "unallocated so that a decrease in child care costs would not be a basis to reduce child support." Further, plaintiff was to pay defendant $25 per week for payment of miscellaneous expenses for the child. A subsequent order of July 23, 2004, increased child support to $174 per week payable through the Bergen County Probation Department and pursuant to an order of garnishment. Plaintiff was also to pay defendant $12 per week for health insurance, which represented the additional cost for her son under her employer's health plan.

On August 3, 2004, plaintiff filed a motion to reduce child support and to recuse Judge Lois Lipton, the motion judge who entered the July 23, 2004 order, alleging grounds that she was biased against him. On September 14, 2004, the parties entered into a consent order reducing plaintiff's child support payments to $150 per week.

On February 16, 2006, plaintiff filed a motion to abate his child support obligation during the time his son would spend summer vacation with him. Plaintiff also moved again to have Judge Lipton recused. Defendant then filed a cross-motion for plaintiff to continue to pay $25 per week in addition to the child support award as per the agreement at the time of divorce.

The matter was heard on May 4, 2006, by Judge Deborah Ustas of the Bergen County Family Part. Defendant consented to her son spending the summer with plaintiff from July 1, 2006 through August 20, 2006 with specified dates for her parenting time, and Judge Ustas accordingly reduced plaintiff's child support contribution obligation by 37% for the time the child was staying with him during the summer.

However, plaintiff argues on appeal that the judge erred in denying his request for a credit in his child support obligation because he now pays health insurance premiums including his son. Because of a change in defendant's employer's plan which would greatly increase the premium for the son, the parties had agreed that the boy be transferred to defendant's policy. Judge Ustas denied an abatement of support because plaintiff could not provide a breakdown as to any additional costs to him from adding his son to his health insurance plan. The colloquy with the court ended as follows:

THE COURT: Yes, I have to put a figure you're paying out of pocket to give you credit. If you don't give me the figure, I can't give you credit. You have to give me what you're paying for the children's share, not your share. You have to find the difference between what it would cost for you alone versus the family and I subtract the difference. Do you understand?

MR. KISALA: Okay. I'm going to provide that information.

THE COURT: All right. So I can't give you credit for that right now.

This exchange indicates that the denial of plaintiff's request for credit was without prejudice and that the court was open to an adjustment provided plaintiff furnished the requested information regarding the breakdown of health care premiums presently paid on behalf of the child. Since plaintiff did not furnish the court with the requested information, there was no error in the court's ruling.

Matrimonial judges possess special expertise in family matters, and we accord deference to their findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We will not overturn an award of child support unless it is "arbitrary, unreasonable or contrary to the evidence." Loro v. Colliano, 354 N.J. Super. 212, 220 (App. Div.), certif. denied, 174 N.J. 544 (2002). In this case we find that plaintiff was treated quite deferentially by Judge Ustas even though he was in arrears on his child support. The court modified his obligation for the summer months in an appropriate amount.

Our review of the record satisfies us that Judge Ustas gave plaintiff a fair hearing on the issues raised by him. There is no basis for recusal of either Judge Ustas or Judge Lipton in the comments made during the motion hearings. See Comparato v. Schait, 180 N.J. 90 (2004).

The remaining arguments made by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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