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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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, ...