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Brush v. Brush

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2008

TINA BRUSH, PLAINTIFF-RESPONDENT,
v.
RICHARD BRUSH, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-11-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008*fn1

Before Judges Gilroy and Baxter.

Defendant Richard Brush appeals from post-judgment matrimonial orders that were entered on October 3 and December 1, 2006.*fn2 We reverse.

I.

The parties were married on October 30, 1988. Three daughters were born of the marriage in 1990, 1992 and 1999. The parties were divorced on January 29, 2002. At the time of the divorce, defendant-husband was earning $115,000 per year, and plaintiff-wife was earning $42,000 per year. Based upon the parties' combined income and defendant's seventy-eight overnight visits with the children per year, his child support obligation was set at $493 per week.

Sixteen months after the divorce was granted, defendant lost his job and was unemployed for a period of ten months. When defendant regained employment, he was no longer required to travel and consequently sought increased parenting time and a modification of his child support obligation. Ultimately, on June 24, 2004, the parties entered into a consent order that increased defendant's parenting time from seventy-eight overnight visits per year to 148. The consent order did not modify defendant's child support obligation. Consequently, on August 19, 2004, defendant filed a motion to reduce his child support obligation based upon his increased parenting time. On September 29, 2004, the court denied that motion.

In November 2004, defendant was again laid off as a result of down-sizing by his employer. After an extensive job search, he found employment that paid him $30,000 less per year than he was earning at the time of the parties' divorce. In February 2005, defendant filed a motion for a reduction in his child support obligation based upon the significant reduction in his annual income and his increased parenting time. On May 2, 2005, the judge denied defendant's motion, and explained that it is "too early to determine whether there has been a change in circumstances." At the same time, the judge granted plaintiff's cross-motion for counsel fees and ordered defendant to pay plaintiff's attorney $900.

Defendant appealed from the May 2, 2005 denial of his motion for reduction in child support and also appealed the order directing him to pay plaintiff's counsel fees. We reversed and remanded for a hearing at which both sides were to present updated financial information. Brush v. Brush, No. A-5022-04 (App. Div. June 30, 2006) (slip op. at 4). We did not specifically address defendant's arguments respecting the award of counsel fees to plaintiff.

Following the remand, the parties submitted updated financial information and on October 3, 2006, the court entered an order establishing defendant's child support obligation at $309 per week, as compared to the $493 per week that defendant was ordered to pay prior to filing the appeal. The Child Support Guidelines worksheet that was attached to the October 3, 2006 order gave defendant credit for zero overnights per year with the children, even though the children were spending 148 overnights with him. That same Child Support Guidelines worksheet also included an "other dependent deduction" credit for plaintiff in the amount of $130 per week, which was based upon plaintiff having given birth to a child when she remarried following the parties' divorce. The guidelines worksheet also included a $46 per week childcare component for plaintiff.

Because the October 3, 2006 order reduced defendant's child support obligation, the judge recognized that defendant was entitled to a retroactive modification of his child support back to the date of February 1, 2005, which is when he filed his original motion for a reduction of child support. Accordingly, the judge's October 3, 2006 order specified that defendant should pay a reduced weekly child support payment to plaintiff in the amount of $294 per week until defendant had been compensated in full for the overpayment, at which time defendant should resume his child support obligation in the adjusted amount of $309 per week. At the rate of $15 per week, it would take 16.47 years before defendant would be able to recoup the entire overpayment of $12,849.

Defendant filed a motion for reconsideration of the October 3, 2006 order, in which he argued that the judge erred when he: disregarded defendant's 148 overnights with his children; included a childcare component in the Child Support Guidelines worksheet because defendant had no obligation to contribute to childcare for a child that was not his; and allowed defendant to recoup his overpayment of child support at the rate of only $15 per week.

On December 1, 2006, the judge denied defendant's motion for reconsideration. Nonetheless, on December 19, 2006, the judge sua sponte issued an amended order that reduced defendant's child support obligation to $273 per week. The Child Support Guidelines worksheet that the judge attached to that order credited defendant with seventy-eight overnight visits with the children. The worksheet also continued to include the $130 per week "other dependent deduction" for plaintiff's new child and the $46 per week childcare component for that child. As a result of the December 19, 2006 reduction of defendant's child support obligation, the amount of the overpayment increased to $16,337. At the rate of $15 per week, it would take 20.94 years before defendant's overpayment of child support would be repaid.

On appeal, defendant argues that the trial court erred by:

1) giving him credit for only seventy-eight overnight visits per year with his children, rather than the 148 that he actually exercises; 2) giving plaintiff the benefit of a $46 per week childcare credit, when none of the children of the marriage are in childcare; 3) failing to establish a reasonable period of time in which defendant can recoup his child support overpayment; and 4) failing to vacate the $900 counsel fee award to plaintiff even after this court determined that the judge erred when he concluded that defendant had not established a change of circumstances potentially entitling him to a reduction in his child support.

II.

The scope of appellate review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. "Furthermore, matrimonial courts possess special expertise in the field of domestic relations." Id. at 412. It stands to reason, however, that when a determination made by a Family Part judge is not based upon "adequate, substantial, credible evidence," ibid., no deference is owed.

After careful review of the record and of the parties' contentions on appeal, we conclude that the trial judge's decision here is not entitled to our deference. This is so for several reasons. We begin by analyzing defendant's first argument, and agree with his contention that the judge should have given defendant credit for the 148 overnights that he spends with his children, rather than only applying a figure of seventy-eight. Although the order of December 19, 2006 gave defendant credit for seventy-eight overnights, it ignored the undisputed evidence of defendant's 148 overnight visits with his children.

Additionally, the judge erred when he applied the Sole Parenting worksheet rather than the Shared Parenting worksheet. Specifically, the Shared Parenting worksheet should be utilized whenever: (1) a parenting plan has been filed with, or ordered by, the court that specifies parenting times and responsibilities for each party; and (2) the Parent of Alternate Residence has the children for two or more overnights per week over a year and can demonstrate that separate living accommodations for the children are provided.*fn3 Plaintiff has never challenged defendant's contention that he satisfies those criteria. Accordingly, the court erred by applying the Sole Parenting Guidelines rather the Shared Parenting Guidelines.

III.

As to defendant's second argument, we agree that the court should not have included an "other dependent deduction" in the calculation of child support. The Guidelines applicable to both sole parenting and shared parenting situations specify that such a deduction is only appropriate when the income of the other parent of the secondary family, in this case plaintiff's husband, is provided to the court. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2291 (2008). In particular, this adjustment requires that three support obligations be calculated -- a theoretical support obligation for the other dependents in the alternate family, a support obligation that includes the other-dependent deduction, and a support obligation that does not include the other-dependent deduction. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2343-44 (2008).

In order to support plaintiff's request for an "other dependent deduction," plaintiff's attorney sent a letter to the court informing the judge that plaintiff's husband earned $66,000 per year. Plaintiff failed, however, to provide proof of that income to the court. Nonetheless, the court provided plaintiff with a credit for the "other dependent deduction" that plaintiff sought. This was error, as was the court's failure to include the three calculations that are required before a party may claim the "other dependent deduction."

IV.

We also agree with defendant's argument that the judge erred when he included a $46 credit for childcare expenses when he calculated plaintiff's income. Although Appendix IX-B permits a court to consider childcare expenses to care for a dependent who is under the age of fifteen under certain circumstances, we conclude that it was a mistaken exercise of the court's discretion for the judge to have awarded plaintiff a $46 credit against her income for childcare expenses pertaining to a child who was not a child of the marriage. Accordingly, we agree with defendant's contention that this $46 credit for childcare expenses should be excluded from the calculation of plaintiff's available income for child support purposes.*fn4

V.

Defendant next asserts that the judge abused his discretion when he ordered that defendant's child support obligation should be reduced by only $15 per week to compensate for defendant's overpayment of child support since February 2005. We agree with defendant's contention that expecting him to wait twenty years before being repaid is far too long. We discern from the judge's determination to limit the weekly recoupment to $15 per week a concern for plaintiff, who had no notice at the time the child support was being paid in 2005, 2006 and 2007 that she would ultimately be required to, in effect, disgorge some of the child support she received.

While that concern is understandable, we nonetheless conclude that such a meager amount of weekly recoupment is not fair to defendant. He should not have to wait twenty years in order to be made whole. By then, the parties' oldest daughter will be nearly thirty-eight years old. Accordingly, we reverse the portion of the October 3, 2006 order that specified that defendant's overpayment of child support would be recouped at the rate of $15 per week. We decline to exercise original jurisdiction to establish an appropriate weekly amount, but encourage the trial court to be considerably more generous on remand in establishing the weekly repayment amount.

VI.

Finally, defendant argues that the trial court erred in ordering him to pay $900 toward plaintiff's counsel fees. The judge specified in his December 19, 2006 order that "[d]efendant argues that he need not pay attorney's fees because 'case law holds that if fees are awarded on an issue that is ultimately overturned, fees are eliminated.' But, this court's April 29, 2005 order was not overturned, it was remanded; thus, the defendant's argument is without merit." We disagree.

Contrary to the judge's analysis of the outcome of defendant's 2005 appeal, we found merit in defendant's argument on appeal that he had indeed demonstrated a sufficient change of circumstances to entitle him to a hearing at which both sides were to present updated financial information. See Lepis v. Lepis, 83 N.J. 139, 151-52 (1980). Our opinion rejected plaintiff's argument and the judge's conclusion that defendant was not entitled to a Lepis hearing. Contrary to the judge's observation in his December 19, 2006 order, defendant, not plaintiff, was the prevailing party in the 2005 appeal.

Under those circumstances, the judge erred in the December 19, 2006 order when he continued to require defendant to pay a portion of plaintiff's counsel fees. We recognize that an award of counsel fees is highly discretionary. Williams v. Williams, 59 N.J. 229, 233 (1971). Here, however, where defendant filed an appeal in good faith and was ultimately vindicated on appeal, we are constrained to conclude that the trial judge mistakenly exercised his discretion when he declined to vacate his order requiring defendant to pay $900 in counsel fees to plaintiff.

To summarize, we reverse the portions of the October 3, December 1 and December 19, 2006 orders that: 1) apply the sole parenting guidelines rather than the shared parenting guidelines; 2) award plaintiff an "other dependent deduction"; 3) limit defendant's ability to recoup the overpayment to $15 per week; and 4) require defendant to pay plaintiff's attorney $900 toward plaintiff's counsel fees.

Reversed and remanded for further proceedings consistent with this opinion.


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