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Gensinger v. Gensinger

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 4, 2008

LAUREEN GENSINGER, PLAINTIFF-RESPONDENT,
v.
DAVID GENSINGER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-16-1183-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 3, 2007

Before Judges Lintner and Alvarez.

Defendant, David Gensinger, appeals from an order in the amount of $100 per week, plus $25 towards arrears, payable by plaintiff, Laureen Gensinger, as child support for the parties' two youngest children, both of whom are currently in his custody. For the reasons set forth below, we affirm.

The parties divorced on October 20, 1999, and have four children. When they divorced, their property settlement agreement was incorporated into the decree. It addressed parenting and child support issues. Although not detailed in the record before us, or necessary for purposes of this appeal, as circumstances have changed, the parties have sought modification of support and parenting orders.

On May 16, 2006, an order of child support was entered based on stipulations that plaintiff's income was $41,000 annually and that defendant's was $25,000. He is self-employed. At the time, the parties' son resided with defendant, while the youngest daughter resided with plaintiff. Child support arrears owed by plaintiff to defendant were fixed at $10,617, payable within thirty days, and weekly child support payable by her to him fixed in the amount of $47 weekly. On November 8, 2006, the probation department obtained an order which modified plaintiff's arrears payment to $50 weekly. That month, plaintiff relocated to Florida. At that time, the youngest daughter moved in with her father, although the question of where she will live on a permanent basis is still pending. Defendant then filed for custody and child support, which application was opposed by plaintiff pro se. At oral argument, and without objection, plaintiff appeared via telephone. No Case Information Statement or other financial documentation was filed by her, nor was she sworn in before participating in the hearing. See R. 5:5-2.

Plaintiff advised the court that because she had relocated and changed jobs, her income was reduced to $35,000 per year, although she continued to maintain medical and dental insurance for herself and all four children at a cost of $180 per month. The motion judge accordingly ordered her to pay $100 per week for the two children in defendant's custody, and reduced her weekly arrearage payment to $25. She is required by the property settlement agreement to continue to provide medical and dental coverage for the two children living with the defendant through her employment. The child support amount plaintiff is required to pay substantially differs from the figure defendant's counsel urged in accord with the Child Support Guidelines (the guidelines). R. 5:6A.

The scope of our review in fact-sensitive determinations by Family Part judges is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Appellate courts must accord particular deference to the trial judge's findings in family cases, and to the conclusions that logically flow from those findings because of the Family Part's special expertise. Cesare, supra, 154 N.J. at 412-13. In this case, we are satisfied that the motion judge's decision to deviate from the guidelines was an exercise in sound discretion.

Defendant contends that plaintiff did not establish sufficient good cause to warrant the motion judge's decision to vary from the guidelines. Preliminarily, the motion judge said he was puzzled as to how the earlier figure of $47 weekly was reached when the parties each had a child in their custody and plaintiff was earning $41,000 per year, while defendant earned $25,000. In light of plaintiff's assertions regarding her income, the motion judge went on to conclude that it would be unfair to require her to pay the guideline amount of $194 as weekly child support. He therefore found good cause to deviate from the guidelines. As he said, "[t]here's no way that the [d]efendant can afford to pay that kind of money." Good cause to deviate from the guidelines is established where an "injustice would result from the application of the guidelines" and there are relevant factors which may make the guidelines inapplicable, or other factors are present as enumerated in Appendix IX-A. R. 5:6A. As set forth in the rule, "[i]n all cases, the determination of good cause shall be within the sound discretion of the court." R. 5:6A. Although not elaborated at length, the motion judge clearly explained his view that to compel plaintiff to pay nearly four times the amount of support she had previously been paying when each party had a child would be inequitable and unrealistic in light of her current financial situation. Under the circumstances, his decision to exercise sound discretion and deviate from the guidelines by awarding $100 weekly for two children, plus $25 toward arrears, plus maintenance of the medical insurance, is reasonable. Although there is no precise definition for abuse of discretion, "it arises when a decision is 'made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). That did not occur here.

Defendant also complains for the first time on appeal, that the plaintiff did not supply financial documentation nor was she sworn in at the time she telephonically participated in the support proceeding. Since no objection was made before the motion judge, we decline to consider the issue now on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Accordingly, we affirm.

20080304

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