January 2, 2008
PATRICE T. WARD, PLAINTIFF-APPELLANT,
STEPHEN WARD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-47-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Parrillo, Graves, and Alvarez.
This appeal is taken from orders that reduced child support payable by defendant Stephen Ward to plaintiff Patrice T. Ward, resolved contested health insurance premium reimbursement issues, and awarded defendant counsel fees. The parties' two children are approximately twelve and eleven years old. Defendant is remarried and has two additional children.
Since their divorce in 1998, the parties have filed numerous motions related to parenting time, child support modification, support enforcement and contempt. In 2002, plaintiff appealed an order which reduced child support. This court found the reduction was not "justified or explained sufficiently" and remanded the matter for plenary hearing. Ward v. Ward, No. A-2215-02 (App. Div. Jan. 23, 2004) (slip op. at 6). We also directed that the motion court "reconsider and determine" the appropriate date from which defendant was obligated to reimburse plaintiff for health insurance premiums for the children. Id. at 7. It was then unclear if discovery was complete as to defendant's financial status. Id. at 9.
Plaintiff appeared pro se at the plenary hearing conducted on the remand. We affirm the 2004 and 2005 orders, issued as a result of the hearing, substantially for the reasons set forth in the family court judge's comprehensive letter opinion dated October 19, 2004, and December 17, 2004. The judge actually issued three separate orders, on October 19, 2004, December 17, 2004, and January 28, 2005, after a five-day plenary hearing and two days of oral argument on motions. Some brief additional comment is warranted.
The family court judge, based on exhaustive analysis of the proofs, adjusted child support as follows:
May 28, 2002 to December 31, 2002 at $229 per week;
January 1, 2003 to March 31, 2004 at $169 per week;
April 1, 2004 to April 6, 2004 at $88 per week;
April 7, 2004 to May 31, 2004 at $81 per week; and
June 1, 2004 and thereafter at $48 per week.
These figures include meticulously calculated adjustments for changes in day care expenses and take into account the birth of defendant's second child with his current wife, as well as defendant's assumption of the total cost of the children's health care insurance. Plaintiff's quarrel with the amounts relates to her claim that her 2002 income should not have been used in making the calculations as well as her view that the defendant is hiding income. As to the latter objection, the judge found there was no proof to that effect. Additionally, the judge had no choice but to use plaintiff's 2002 figures. Therefore, the amounts are not calculated in error.
In fact, the October 19, 2004 order directed the parties to submit 2003 tax returns and supporting documents. Only defendant did so. The judge's purpose for ordering the submission was to enable her to fairly calculate child support going forward from the remand hearing. Despite this directive, it was plaintiff, not defendant, who failed to supply additional financial information.
Plaintiff maintains that the court did not have the authority to calculate child support other than as directed by the remand. This argument too is mistaken, however, as the family court always has jurisdiction over questions of ongoing child support, including modification. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The moving party, defendant, bore his burden of establishing changed circumstances sufficient to warrant child support modification. See Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). It was incumbent on the judge to determine the amount of ongoing child support, not just to revisit past obligations. The question had been pending since 2002.
After the plenary hearing, plaintiff objected to the court's use, in calculating support amounts, of her previously adjudicated 2002 weekly gross income of $1820. She claims it was an erroneous "imputation" of income. As previously stated, plaintiff did not document her earnings after that year, although afforded ample opportunity to do so. Therefore, the court's reliance on an earlier finding as to plaintiff's weekly income was necessitated by her own conduct. Under these circumstances, using the amount previously calculated based on plaintiff's full financial disclosure, even if in 2002, is not improper.
Similarly, plaintiff claims that the court erred when it failed to consider day care expenses when calculating plaintiff's income. She argues that when a court imputes income to a party, the court should also impute child care expenses. This argument is also without merit. The motion court did not impute income to plaintiff. The motion judge used the only evidence it had available, plaintiff's 2002 income, to determine plaintiff's income. As a result, plaintiff's argument about the imputation of child care expenses is irrelevant.
Plaintiff contends that the judge was precluded from retroactively modifying child support pursuant to N.J.S.A. 2A:17-56.23a. Modifications may be made, however, in "the period during which there is a pending application," as was the case here. N.J.S.A. 2A:17-56.23a. The question of defendant's weekly child support obligation has been pending since at least 2002.
In accord with the remand, the judge pinpointed the date from which defendant was obligated to reimburse plaintiff for a portion of the children's health insurance premiums. Plaintiff sought reimbursement effective January 21, 2000, whereas the prior court order allocated the cost only to November 26, 2001.
Although plaintiff's reasoning is not entirely clear, it appears she premises her argument on the claim that a January 21, 2000 order actually referred to unreimbursed medical expenses when it should have referred to medical insurance expenses. She was not able to substantiate the claim. On remand, the judge found that defendant's portion of the health insurance premiums for 1999, 2000, and through November 21, 2001, had already been received by plaintiff. Plaintiff filed her original application as to this issue on November 26, 2001, and has not presented any evidence to suggest that there are additional monies due. The November 26, 2001 date shall stand.
Plaintiff also contends that the judge erred when she failed to incorporate a summer 2004 child care agreement into the final judgment. As there is little evidence in the record as to the contents of this supposed agreement, this argument is both moot and without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Plaintiff also appeals from the discretionary award of attorney fees payable by her to defendant. Absent a clear abuse of discretion, a trial court's award of counsel fees should not be disturbed. Chestone v. Chestone, 285 N.J. Super. 453, 468 (App. Div. 1995). Rule 4:42-9 authorizes awards of legal fees; in matrimonial matters it references to R. 5:3-5. That rule enumerates factors to be considered in awarding legal fees in matrimonial matters, which include the "reasonableness and good faith of the positions advanced by the parties." R. 5:3-5(c).
Bad faith in connection with a counsel fee award includes pursuit of relief to which one knew or should have known that he or she was not reasonably entitled under the facts or the law, or engaging in vexatious acts initiated to oppress one's opponent. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992).
The judge awarded $2,000 in attorney fees to defendant as a result of two enforcement motions he was compelled to file because plaintiff would not disclose details regarding day care costs so that payments for those expenses could be allocated between the parties. Ultimately, the court was forced to adjudicate the issues without the information. As the motion court phrased it, plaintiff's "steadfast secrecy shroud[ed] in defiance caused all to spend unnecessary time and expense to unravel her presentation." It is for that reason that the award was made. No abuse of discretion therefore occurred on that score.
Similarly, the judge found that the plaintiff's conduct in "unilaterally" shifting summer weeks of parenting time resulted in defendant having to file a third unnecessary motion. A separate award of $1,000 in counsel fees was granted to defendant for that application. As the court said, "[p]laintiff's actions this year caused the motion to be entered. He[r] position was neither upheld nor warranted." The court was more than familiar with the parties' financial circumstances. Having reviewed the record, we are satisfied that the award of counsel fees was not an abuse of discretion.
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