March 26, 2008
ROBERT COLES, PLAINTIFF-APPELLANT,
DARLENE PINN-WILSON, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-1115-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2008
Before Judges Gilroy and Baxter.
Plaintiff Robert Coles appeals from a May 10, 2007 order that increased his child support obligation retroactively back to August 2005. The retroactive modification created an arrearage amount of $7,938, which the judge ordered be paid at the rate of $30 per week. We affirm.
In February 2007, defendant filed a motion for a retroactive increase in the amount of child support she was receiving. In particular, she maintained that an August 2005 child support order had been calculated using the shared parenting guidelines, anticipating that plaintiff would have exercised his overnight parenting time with their son. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2307 (2008). She alleged in her February 2007 motion that despite the provisions of the August 2005 order that entitled plaintiff to spend two overnights per week with his son, he had never availed himself of any overnight parenting time in the eighteen months between August 2005 and February 2007. She argued that she was entitled to a retroactive modification of child support based upon the sole parenting situation that had actually existed after August 2005.
These are the pertinent facts. The parties were never married. They have one son who was born on August 28, 1990, and was nearly seventeen years old at the time the hearing in question took place in April 2007. Defendant has been the primary residential parent ever since the parties' son was a few months old. On February 10, 2005, plaintiff filed a motion to reduce child support because child support had been calculated in 2004 by a hearing officer using the sole parenting worksheet instead of the shared parenting worksheet. As a result of that motion, a judge granted plaintiff's motion to reduce child support and recalculated child support using the shared parenting guidelines. As a result, plaintiff's weekly child support obligation was reduced to $128. The judge also ordered the parties to attend and participate in the Custody/Visitation Awareness Seminar and the Case-Specific Mediation program that was available in the Family Part. The parties completed that program in January 2006. The judge also granted defendant's motion to require the plaintiff to contribute to parochial school tuition as an extraordinary expense. The judge did not, however, require a lump-sum payment for the tuition, and instead chose to spread out the costs of that tuition over the entire school year.
Two years later, on February 15, 2007, defendant filed the motion that is the subject of this appeal, in which she sought to retroactively modify child support back to August 2005 due to plaintiff's non-compliance with the shared parenting plan that was adopted in August 2005. She also sought to modify joint legal custody to sole custody. On March 15, 2007, plaintiff filed a cross-motion to enforce his parenting time. He asserted that defendant's malicious interference with his exercise of parenting rights had resulted in Parental Alienation Syndrome.
The judge set the matter down for a plenary hearing, which began on April 30, 2007. The hearing lasted the entire day and resumed on May 10, 2007. During that hearing, both parties testified, as did plaintiff's new wife and his brother, both of whom attested to plaintiff's recent efforts to see his son. The judge also interviewed the parties' son and summarized the results of that interview on the record.
The undisputed testimony from the parties established that between the time the shared parenting support order was entered in August 2005 and the time the motion was filed by defendant for a retroactive increase in her child support in February 2007, the parties' son had not spent even one overnight with his father. Although plaintiff blamed defendant for alienating his son, the testimony established that defendant never filed a visitation motion to enforce his parenting time, never once went to any of his son's football games, and never once sent his son a birthday card, a Christmas card or a Christmas present during that entire eighteen-month period. The judge observed that plaintiff had done none "of the little things that let a child know you still care."
The judge made detailed and comprehensive credibility findings. The judge found that plaintiff had attempted to mislead the court both by making an unsubstantiated allegation that defendant had falsified her paystubs and by minimizing his own wife's income. Similarly, the judge rejected as false plaintiff's explanation for why he had failed to come to the front door of his home to open it when his son came there to apologize for his disrespectful remarks over the telephone. Accordingly, the court did not find plaintiff credible. As the judge commented, "I saw his tone, his demeanor, his evasiveness, [and] his equivocation . . . on cross-examination." In contrast, he observed that defendant was "credible and sincere."
Ultimately, the judge determined that although each side bore some responsibility for the rupture of the son's relationship with his father, the blame for the eighteen-month lapse lay with plaintiff because he had made little effort to see his son. The judge cogently explained the resulting financial consequences:
The reality is that none of the expenses of raising [the parties' son] between August 16, 2005 and today, have been borne appropriately by dad because that child has not been spending [the] 130 days [contemplated by the August 2005 order] with dad under his roof with dad feeding and clothing and sheltering and recreating and doing all the things a father does with his son and incurring the costs of those things and thereby reducing the cost to the custodial parent mom for 130 days. In fact, 365 days out of the year mom has been bearing all of those costs, all of those expenses and all of those burdens. . . .
That is not right legally . . . .
The judge's extensive findings of fact and conclusions of law make no mention of N.J.S.A. 2A:17-56.23a, which bans retroactive modification of child support for a time period prior to the filing of the motion for modification. Instead, the judge based his finding that defendant was entitled to a retroactive increase in child support upon equitable principles: plaintiff should not be entitled to the benefit of the shared parenting guidelines unless he actually exercised the parenting time that is contemplated by those very guidelines.*fn1
On appeal, plaintiff argues: 1) the trial court's order must be reversed because retroactive modification of child support is prohibited by N.J.S.A. 2A:17-56.23a; 2) the trial judge erred in computing the parties' incomes; 3) the judge erred in not considering the merits of the motions presented to the judge in August 2005; 4) the judge erred in prohibiting plaintiff and his present wife from testifying concerning matters relevant to the August 2005 order; 5) the judge failed to consider that child support from February 1, 2001, to August 2005 was incorrectly calculated on a sole parenting worksheet and that he should receive credit; 6) the judge gave insufficient weight to the report of a court-appointed counselor who concluded that defendant had interfered with plaintiff's parenting time; 7) the order in question should be vacated because plaintiff has been deprived of parenting time; and 8) the extraordinary expense for private Catholic School tuition should be removed because he cannot afford it.
On appeal, an order entered by the Family Part is entitled to considerable deference. 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. Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 411-12. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "matrimonial courts possess special expertise in the field of domestic relations. . . . Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 412-13.
The judge's findings are amply supported by the evidence in the record. We have been presented with no meritorious basis upon which to disturb the insightful and thorough findings he made, which were based upon adequate, competent and substantial evidence in the record. Therefore, the judge's conclusion that the responsibility for the breakdown in the father-son relationship ultimately lay with plaintiff himself is entitled to our deference.
We turn now to the central issue raised by this appeal, which is whether N.J.S.A. 2A:17-56.23a*fn2 applies so as to prevent a retroactive increase in child support back to August 2005. In Keegan v. Keegan, 326 N.J. Super. 289, 294 (App. Div. 1999), we held that nothing in the legislative history of N.J.S.A. 2A:17-56.23a suggests that the Legislature intended to prohibit retroactive modifications that increase child support obligations where such an increase is equitable. Our review of the legislative history led us to conclude instead that the statute was enacted "to remedy the loopholes of interstate child support enforcement laws in order to benefit children." Ibid. We concluded that where the equities favored a retroactive increase in child support for the benefit of a child, nothing in N.J.S.A. 2A:17-56.23a should be permitted to interfere with such a result. Ibid. We determined that N.J.S.A. 2A:17-56.23a prohibits retroactive decreases in child support, but not retroactive increases. Ibid.
Applying the principles of Keegan, we have no difficulty concluding here that the facts unmistakably warrant a retroactive increase in child support. Such a result is required in order to redress the unfair financial impact of a child support order that was based on shared parenting that never ultimately occurred. Under such circumstances, the order in question does not run afoul of the statute. Indeed, it is difficult to conceive of facts that would more plainly justify a retroactive increase in child support than the facts that are presented here. We accordingly reject plaintiff's contention that the retroactive increase in child support to August 2005 violated the statute and should be reversed.*fn3
Nor should defendant's delay in seeking the retroactive increase be deemed a bar to her right to seek it, or plaintiff's potential obligation to pay it. "[T]he right to child support belongs to the child and may not be waived by a custodial parent." L.V. v. R.S., 347 N.J. Super. 33, 40 (App. Div. 2002). Accordingly, "there is no basis to impute to a child the custodial parent's negligence [or] purposeful delay . . . so as to vitiate the child's independent right of support from a natural parent." Ibid. Not even the absence of a meaningful relationship relieves the legally obliged parent from providing support for a child's basic needs." Id. at 41.
Defendant has presented numerous other arguments in points two through eight of his brief that we have already listed. We have carefully considered his arguments in light of the record and applicable law and conclude that they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(A) and (E). We add only the following comments. The arguments plaintiff presents in points three and five are addressed to factfinding errors he claims are inherent in the orders entered by a different judge in 2005. If plaintiff disagreed with any portions of those orders, his remedy was to file an appeal at that time, not to collaterally attack those orders in a 2007 appeal.
As to plaintiff's claim that the judge erred by prohibiting him and his present wife from testifying concerning matters relevant to the August 2005 order, the record demonstrates that the judge properly limited plaintiff's testimony and that of his wife to the period from August 15, 2005 to the present. There were only two occasions when the judge barred the direct testimony of plaintiff's wife. One was when plaintiff asked her if he had ever beaten her and the other was when he asked her to describe the parenting time schedules that had been proposed during mediation. The judge was clearly entitled to exclude such testimony. See N.J.R.E. 403.
As to plaintiff's contention that the judge erred in not giving due consideration to the court-appointed counselor's report, we disagree. The record demonstrates the opposite. The judge commented that based upon his reading of that report and his own observations, defendant's attitude toward plaintiff "may have created hostility between the two that spilled over to [their son]." Thus, the record demonstrates that the judge did properly consider the report.
Plaintiff claims in point eight of his brief that the court erred by refusing to eliminate his obligation to share in the expense of parochial school tuition. We decline to consider that claim because the tuition issue was not encompassed in the May 22, 2007 order from which plaintiff appeals. Instead, the tuition issue appears to have been addressed in an order of March 27, 2007 from which plaintiff has not appealed. Nor has he provided us with a transcript of the judge's reasons placed on the record at that time. The propriety of the March 27, 2007 order is therefore not before us and we decline to consider plaintiff's contentions concerning it. See R. 2:4-1; 2:5-1(f); 2:5-3.