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Smith v. Smith

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 23, 2008

BETH SMITH, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
KEVIN SMITH, DEFENDANT-RESPONDENT/CROSS-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FD-16-129-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2008

Before Judges Grall and Chambers.

Plaintiff Beth Smith appeals from a post-judgment order of the Family Part modifying child support, and defendant Kevin Smith cross appeals from the award of counsel fees in plaintiff's favor. The post-judgment order was entered following a plenary hearing on plaintiff's motion for modification of child support, allocation of responsibility for college expenses and other relief not at issue on appeal. The judge's determinations are supported by substantial credible evidence in the record and consistent with controlling legal principles. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Accordingly, we affirm substantially for the reasons stated by Judge Mizzone in his oral decision of July 24, 2007.

The parties were married on July 30, 1983. There were three children born of their marriage; the first was born in 1988, the second in 1989 and the third in 1993. The parties were divorced in the State of Maryland in November 1995. The final judgment incorporates a separation agreement executed in 1992 and an addendum executed in 1993 (collectively the PSA). The PSA provides for annual review of child support on May 1 of each year after 1993. The PSA also includes an agreement to "share the costs of tuition, room, board, laboratory and other fees, and necessary transportation associated with" college or other post-secondary education.

Although the parties were divorced in Maryland, plaintiff filed a post-judgment motion in this State in October 2001. In 2002, the court determined that this State had jurisdiction and entered a consent order declaring that it would "hear all issues regarding custody, child support and post-judgment issues." By order of March 14, 2002, the court applied New Jersey's child support guidelines and fixed support in the amount of $599 per week. In accordance with Rule 5:6B, the child support was increased to $630 per week by order of November 24, 2003, and to $679 per week by order of November 28, 2005.

Plaintiff filed the motion at issue here on January 19, 2006. On September 1, 2006, while the motion was pending, the parties' oldest child entered college as a resident student. This change in circumstance warranted modification of child support for the two younger children and a determination of the parties' respective income that would permit allocation of responsibility for college expenses in accordance with their PSA. In addition, the May 1 date for annual reconsideration of child support in accordance with the PSA arrived while the motion was pending. Accordingly, the trial court calculated two separate support awards -- one for the period between September 1, 2006, and April 30, 2007, and one for the period beginning May 1, 2007.

In calculating child support based on evidence presented at the hearing, the trial court applied New Jersey's child support guidelines. The court determined defendant's actual income during the relevant periods. The court imputed income for full-time employment to plaintiff, who was working part-time as a registered nurse. The trial judge fixed the amount of imputed income based on plaintiff's actual hourly wages for part-time work during the relevant periods. The parties' combined net income was $3303 per week for the period between September 1, 2006, and April 30, 2007, and $3477 per week for the period beginning May 1, 2007. During both periods, defendant earned seventy-five percent and plaintiff earned twenty-five percent of the total net income. On that basis, the court fixed child support for the two children who remained in plaintiff's home at $468 per week for the period beginning on September 1, 2006, and ending on April 30, 2007, and $495 per week for the period beginning on May 1, 2007.

The trial court allocated responsibility for college expenses listed in the parties' PSA in proportion to the parties' respective income and imputed income during the relevant periods. The court did not award additional support for that child.

The court awarded plaintiff counsel fees in the amount of $20,000.

Plaintiff presents the following issues on her appeal:*fn1

I. THE CHILD SUPPORT AWARDED WAS UNREASONABLE, WAS CONTRARY TO THE EVIDENCE AND WAS INCONSISTENT WITH NEW JERSEY CASE LAW.

II. JUDGE MIZZONE IMPROPERLY ORDERED A RETROACTIVE REDUCTION IN CHILD SUPPORT.

III. JUDGE MIZZONE FAILED TO CLEARLY PLACE HIS REASONS FOR DEVIATING FROM THE CHILD SUPPORT GUIDELINES AND FROM [SIC] CONSIDERING THE STATUTORY FACTORS ON THE RECORD.

IV. JUDGE MIZZONE IMPROPERLY IMPUTED INCOME TO THE PLAINTIFF WHILE FAILING TO ACKNOWLEDG[E] THE DEFENDANT'S FULL INCOME FOR THE YEARS 2004 AND 2005.

On his cross-appeal, defendant argues:

I. THE AWARD OF [COUNSEL] FEES AND COSTS TO THE PLAINTIFF SHOULD BE REVERSED.

The arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). For that reason, we add only a brief explanation for our conclusion that there is no basis for this court to disturb the trial court's rulings.

Plaintiff's objection to the reasonableness of the child support award and her claim of deviation from the guidelines and the statute are based primarily on her confusion about the scope of the child support guidelines. Contrary to plaintiff's claim, the parties' income was not sufficiently high to warrant child support in excess of the highest guidelines amount and the guidelines do not apply to children who are attending college and not residing in the home of a parent. The parties highest combined net income was $180,804 per year. As of September 1, 2006, the earliest date at issue in this case, the guidelines covered families with a combined net income of $229,840 per year or less and did not cover children attending college and not residing at home. See Pressler, N.J. Court Rules, Appendix IX-A to R. 5:6A at 2234-35 and Appendix IX-F to R. 5:6A at 2300 (2007). The prior schedule of child support awards, which did not cover combined income greater than $150,800, was revised effective September 1, 2006, by order of the Supreme Court dated August 10, 2006. Id. at Appendix IX-G at 2301.

The court's order does not include a retroactive reduction of child support prohibited by N.J.S.A. 2A:17-56.23a. The statute permits modification retroactive to the date on which the motion for modification is filed. J.S. v. L.S., 389 N.J. Super. 200, 207 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007). Plaintiff filed her motion in January 2006, and the court reduced support effective September 1, 2006.

Plaintiff's objection to imputation of income also lacks merit. The decision to impute income is entrusted to the discretion of the trial court, and this court will not disturb the court's determination unless the trial court's findings are inconsistent with or unsupported by competent evidence. Tash v. Tash, 353 N.J. Super. 94, 99 (2002). The record in this case provides ample support for the conclusion that plaintiff had both the ability and opportunity to obtain full-time employment as a registered nurse.

As we understand plaintiff's argument, she contends that imputation of income was unfair because the court did not grant her request to modify child support for 2004 and 2005. This argument overlooks relevant facts. Orders increasing child support for this family were entered on November 24, 2003, and November 28, 2005. Thus, plaintiff clearly had an opportunity to seek relief prior to this motion. Moreover, plaintiff's notice of motion did not state her intention to seek review of child support for 2004 and 2005.

Defendant seeks reversal of the trial court's decision to award plaintiff counsel fees in the amount of $20,000. That claim also lacks merit.

The award of counsel fees to litigants in the Family Part is left to the sound exercise of the judge's discretion. See R. 5:3-5(c); Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999); N.J.S.A. 2A:34-23. The governing standards are clear:

[T]he court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees. [Mani v. Mani, 183 N.J. 70, 94-95 (2005) (discussing proper application of N.J.S.A. 2A:34-23, and the factors set forth in Rule 5:3-5(c), which incorporates by reference Rule 4:42-9) (emphasis omitted).]

Defendant notes that the affidavit of services submitted by plaintiff's attorney did not provide all of the information required by the Rules. We agree. The affidavit was, however, adequate to permit Judge Mizzone, who presided over the several motion hearings and the plenary hearing, to assess the reasonableness of the fees and the positions asserted by plaintiff and defendant. Indeed, after considering the reasonableness of the fees and plaintiff's positions, the judge awarded plaintiff less than half of the fees she sought.

Because defendant had income far greater than plaintiff and incurred fees far in excess of those plaintiff incurred, we cannot conclude that the fees awarded were unreasonable or that the award was an abuse of discretion.

Affirmed.


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