April 25, 2008
JOEL SCOTT ISAACSON, PLAINTIFF-RESPONDENT,
LILY ISAACSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-1176-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 8, 2008
Before Judges Skillman and LeWinn.
Lily Isaacson (defendant) appeals from portions of an order of the Family Part that (1) increased plaintiff's monthly child support obligation for the parties' two children from $3,500 to $3,560; (2) denied her request for reimbursement of certain tutoring expenses; and (3) denied her request that plaintiff reimburse her mother for loans to defendant totaling $78,000. Defendant also claims the trial judge denied her a fair hearing on her motion, and she seeks the judge's recusal in the event of a remand.
Having thoroughly reviewed the record, we conclude that the trial judge improperly declined to require plaintiff to submit his current financial information in deciding defendant's motion and erroneously denied defendant's request for reimbursement of tutoring expenses. We further conclude that the judge demonstrated a significant degree of animus and impatience towards defendant. Therefore, we reverse and remand for further proceedings before a different judge of the Family Part.
The parties were married in 1984 and divorced in 1995. They have two daughters: Rebecca, born September 10, 1986; and Sara, born June 1, 1989. Upon entry of the final judgment of divorce, plaintiff's child support obligation for the two children was $2,400. As the result of a motion defendant brought in September 1999, the trial court entered an order on February 16, 2000, increasing defendant's child support obligation to $3,500 per month.
Defendant filed her current motion in April 2006. At that time, the parties' eldest daughter was attending college in Boston and plaintiff was paying all of her college expenses.
At oral argument on May 26, 2006, defendant appeared pro se; plaintiff was not present and appeared through counsel. The parties' daughters attended and were questioned by the judge during the proceedings. Plaintiff contended that, because he was not claiming an inability to pay increased child support, he did not have to submit his current financial information. Rather, he stated, it was defendant's burden to show a change of circumstances warranting an increase.
Plaintiff also pointed out that he had not sought modification of his child support obligation at the time the eldest child began residing away from home at college. In addition to paying all of that daughter's college costs, plaintiff continued to pay $3,500 monthly support for both children.
Defendant itemized numerous expenses she was incurring on behalf of both children, including: a car for the eldest daughter; car insurance, maintenance and repairs; increased clothing, entertainment and beauty salon expenses; replacement of a home computer for the younger daughter; college preparatory courses and books; visits to college campuses; driving lessons for the younger daughter; prom expenses; school trips including weekends away; and the younger daughter's attendance at special academic programs such as the National Leadership Conference in Washington, D.C. Defendant contended that, in the past six years, circumstances had changed due to the maturation of the children and the increased cost of meeting their needs.
Plaintiff contended that no change of circumstances had occurred to warrant modification of child support. He argued that all the expenses listed by defendant could be met under the current child support award. Plaintiff also contended that, because he did not seek to reduce his child support obligation when the eldest daughter entered college in Boston, defendant incurred a windfall in excess child support payments.
At oral argument, the trial judge acknowledged that maturation of the children was sufficient to support a finding of changed circumstances under Lepis v. Lepis 83 N.J. 139 (1980). However, he declined to increase child support except for an additional $60 per month towards the children's cell phone expenses. The judge also ordered plaintiff to continue to pay all of the elder daughter's college-related expenses, and to pay an additional $400 directly to that daughter in each of the seven months she lives away at school "for secondary expenses."
In declining to increase child support beyond the $60 monthly cell phone expense, the judge stated that the expenses defendant claimed, such as car insurance, were "included in the child support." When both defendant and the elder daughter attempted to point out that the $3,500 monthly child support set six years earlier did not contemplate the need for car insurance, the judge stated, "[T]hat's what child support's intended to cover. That's why it's in there."
The trial judge made no findings of fact or conclusions of law in declining to increase child support beyond the additional $60 per month towards the children's cell phone expenses. He simply stated:
[I]f I were to start exploring and say to you [plaintiff's attorney] give me your guy's tax return for '05 if he's filed it and give me for '04 and let's say it said a million dollars or two million dollars, whatever number it might illustrate, his ability to pay would I think be multiplied above hers. And the fact that . . . we have a six-year time period since the support's been increased and the income had risen substantially more on one side than the other and we talk about the maturation of the children causing increased needs, which we're talking about, the balance on that of I'm paying for college, therefore there's a diminution lessens because in my view there would have been an increase in the support prior to today.
So what I'm suggesting is in lieu of an increase I expand or codify the things I want him to pay for that I know go directly to the children.
The judge then proceeded to "codify" only the following expenses for which plaintiff would be responsible: (1) cell phones, resulting in the $60 monthly increase; (2) the $400 monthly stipend to the elder daughter for each of the seven months she lives away at school; and (3) future tutoring expenses for the younger daughter. Other than these three items, plaintiff's child support obligation for the children remained as it had been.
On October 2, 2006, the trial judge filed a letter amplifying his decision pursuant to R. 2:5-1(b). At the outset the judge stated that the children "have no relationship with their father[,]" and expressed his belief that "the relationship between the father and his children has diminished in part due to their mother. She is bitter toward her former husband who in her own words had 'dishonored' the marriage."*fn1 The judge then noted that plaintiff did not seek a reduction in child support when the eldest daughter left for college, adding: "In most other cases, there is a 50% reduction of child support expenses when a child is away at college. That reduction, if applied, would equal $10,500 a year, which more than satisfies any potential increase, brought about by the passage of time." Finally, the judge stated that plaintiff is paying all of the children's educational expenses, and added: "Child support and college expenses are intertwined, one cannot be considered without the other."
Review of defendant's submissions reveals that, while she may currently be receiving sufficient child support to provide the children with a reasonably upper middle class lifestyle, nonetheless new and enhanced expenses have arisen due to the children's maturation since 2000. Therefore, having established a change of circumstances that may warrant modification, she should be entitled to discovery of the plaintiff's current financial situation in order to ascertain whether the child support is commensurate with his financial wherewithal.
The trial judge properly noted that maturation of the children established a prima facie case of changed circumstances. Lepis, supra, 83 N.J. at 151. Child support was last increased in 2000, when the children were thirteen and eleven years old. At the time defendant filed her current application, the children were nineteen-and-a-half and almost seventeen. Therefore, defendant's application to modify child support merited full consideration by the court.
Where the child support obligor is a high-income earner, with income that exceeds the range covered by the Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix 1X-A to Rule 5:6A at 2302 (2008), the "dominant guideline" in determining an appropriate support amount is the reasonable needs of the children. Isaacson v. Isaacson, 348 N.J. Super 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002). In such cases, those needs are weighed against the obligor's current financial situation and standard of living.
Children are entitled to share in the good fortune of their parents, and "are entitled to have their needs accord with the current standard of living of both parents, which may reflect an increase in parental good fortune." Id. at 579. A supporting parent "has the obligation to share with his children the benefit of his financial achievement." Id. at 580.
Plaintiff's "financial achievement" certainly inures to the elder daughter's benefit as he is paying all of her current college expenses plus a $400 monthly stipend. Presumably plaintiff will make a comparable contribution to the younger daughter's college costs at the appropriate time.
However, "[c]hild support and contribution to college expenses are two discrete yet related obligations imposed on parents." Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998). Each obligation must be considered separately. Unemancipated children, including college-age children, remain dependent upon the financial support of their parents for non-college-related expenses such as shelter, food, clothing, and all other accoutrements of a lifestyle commensurate with "the current standard of living of both parents."*fn2 Isaacson, supra, 348 N.J. Super. at 579 (emphasis added).
In the absence of plaintiff's current financial information, the trial judge decided defendant's motion in a partial vacuum. After acknowledging that maturation of the children is a changed circumstance warranting modification of child support, and confronted with defendant's documentation of the increased expenses she is incurring on the children's behalf, the trial judge should have required plaintiff to disclose his current financial situation.
The children's entitlement to share in "the benefit of [plaintiff's] financial achievement[,]" id. at 580, is rendered meaningless when evidence of that "financial achievement" is not provided. On remand, plaintiff shall be required to provide proof of his current financial situation.
We now turn to defendant's second point, that the trial judge erred in denying her request for reimbursement of $2,092 in tutoring expenses she had incurred for the younger daughter. In denying this request, the judge ruled that he could not order reimbursement of expenses incurred prior to the date on which defendant filed her motion. The judge stated that such an award would be "retroactive" and that defendant should have filed her motion "before the tutoring . . . [n]ot afterwards."
We conclude that the trial judge clearly erred in denying this reimbursement request. The statutory concept of "retroactivity" applies only to bar modification of child support orders retroactive to a date prior to that on which a motion seeking such modification is filed. N.J.S.A. 2A:17-56.23a. No such bar exists, either in statute or case law, to reimbursement of tutoring expenses incurred prior to the filing date of the motion.
At oral argument, plaintiff (through counsel) stated his willingness to pay the tutoring bills, adding: "And the reason for that is . . . he hasn't denied a single direct expense." Plaintiff's only request was that he receive and pay such bills directly. In light of plaintiff's express acknowledgement of his responsibility for the tutoring bills, denial of such payment for bills incurred prior to the filing date of the motion was arbitrary and capricious.
Regarding defendant's request for reimbursement of $78,000 to her mother, we note that neither party addressed this issue at oral argument. Nor did the judge address it on the record; he simply denied this request in the resultant order. Defendant presents no argument on appeal in support of her request for this relief. Therefore, we do not disturb the trial court's denial of this relief to defendant.
Finally, we address the trial court's demeanor towards defendant in these proceedings. At oral argument, after defendant made brief opening comments, the court began questioning her on the expenses plaintiff was paying for the daughter in college. He then turned his attention to the parties' two daughters, who were seated in the courtroom, and proceeded to question each one as to the nature of their relationship with plaintiff and what financial needs of theirs were not being met.
After questioning the children, the judge then engaged in extensive colloquy with plaintiff's attorney. When defendant attempted to interject a comment, the court told her, "You may . . . close now." As defendant attempted to do so, the court once again engaged her in questioning. As she was describing her difficulty in meeting expenses, the judge stated, "All right. Thank you . . . for . . . that argument." The judge then questioned plaintiff's attorney as to plaintiff's willingness to pay the younger daughter's tutoring expenses. Defendant interjected, "That's an educational expense." In response, the judge told her, "No, no, no. I don't need what we call the excited utterance."
The court then engaged in colloquy with plaintiff's counsel over the parameters of his decision. At the conclusion, the judge turned to address both children and defendant began speaking, "They were hoping - -[,]" at which point she was interrupted by the judge who stated, "Don't talk to me anymore. I find bringing them to be reprehensible and I want you to remember that."
In his letter of October 2, 2006, the judge stated: "The court found that [defendant] brought the children to court at the oral argument of the motion solely to embarrass and harass her former husband. The negative impact created by parents by bringing children into their divorce action is reprehensible." As noted earlier, the judge also blamed defendant "in part" for the "diminished" relationship between plaintiff and the children.
Defendant appeared pro se at the argument. Plaintiff did not appear; however, even if plaintiff had been present at oral argument, we nonetheless conclude that the judge's statement in his letter that defendant brought her daughters to court "solely to embarrass and harass [plaintiff]" is not supported by the record. The girls were nineteen-and-a-half and almost seventeen years old at the time of this motion. The trial judge had no way of knowing whether defendant compelled them to attend against their will or whether they requested to attend the court proceeding. It may well be the girls believed they had a stake in the outcome of defendant's motion and wanted to be there. The judge himself raised this possibility by engaging them in colloquy.
Very early in the proceedings, the judge noticed the girls' presence, and asked the younger daughter, "Do you really want to be sitting here for this?" The daughter answered, "Yes." The judge then asked her, "How about if I let you talk to me in front of them but then I'm going to ask you to go outside if that's okay. All right?" The judge then proceeded to have the daughter sworn and questioned her at some length about her relationship with plaintiff, her perception of his role in her life, and her financial needs.
The judge then asked the older daughter, "Do you want to talk to me at all?" She replied, "Yeah. Sure." After preliminary inquiries as to how she was doing at college, the judge then questioned her about her financial needs and her relationship with plaintiff. At the end of that colloquy, the judge told the older daughter, "You can stay if you want. It's your call because you're over 18."
It appears from the judge's own colloquy with the girls that they welcomed the opportunity to be present in court and speak with the judge. Under these circumstances, we find the judge's criticism of defendant for allegedly bringing the girls to court and his imputation of ill will as her motivation for doing so, to be unjustified. "It is enough to say that the judge's rebukes and aspersions were out of proportion" to defendant's actions. James v. City of East Orange, 246 N.J. Super. 554, 563 (App. Div. 1991).
We have recognized that a judge's inappropriate comments "do not, by themselves, necessarily equate to bias." Panitch v. Panitch, 339 N.J. Super. 63, 68 (App. Div. 2001). In Panitch, the trial judge's inappropriate comments were directed to plaintiff's counsel during a pre-trial telephone conference, not in open court. For that reason, we affirmed the judge's denial of plaintiff's recusal motion. However, in so affirming, we added "cautionary remarks" to the effect that "it may well be appropriate before this case reaches trial for the judge to consider whether he should step down from hearing the actual trial of the case because of the degree of involvement." Id. at 71.
Here the trial judge castigated defendant in open court and on the record for bringing the children to court, and he demonstrated a palpable lack of patience with her efforts to argue her motion. His supplemental letter decision reiterated this disparaging attitude. Under the totality of circumstances, we conclude that this matter must be remanded to a different judge.
As the trial judge stated in his October 2, 2006, letter: "I have had this family for over 10 years and I believe that I have the most knowledge about them, observing both their demeanor and their credibility." It appears that the judge's lengthy involvement with the parties' divorce litigation has led him to harbor negative feelings towards defendant; and those feelings impaired his ability to weigh her most recent motion impartially. The trial judge's "degree of involvement" in this case leads us to conclude that he "should step down" from hearing all further proceedings between these parties. Panitch, supra, 339 N.J. Super. at 71.
Reversed and remanded for further proceedings in conformance with this opinion.