July 9, 2008
MARTHA S. RUGGERO, PLAINTIFF-RESPONDENT,
MICHAEL RUGGERO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-0648-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Axelrad, Payne and Sapp-Peterson.
Defendant, Michael Ruggero, appeals from the May 16, 2007 order of the Family Part that (1) awarded credits to defendant for Social Security Disability (SSD) benefits plaintiff received against sanctions the court imposed rather than against outstanding child support arrears, (2) denied his request to have his oldest child declared emancipated, (3) found previous sanctions imposed against defendant, in excess of $300,000, reasonable, and (4) required defendant to provide proof of life insurance. We affirm.
The parties were divorced on June 19, 1995. There were three children born to the marriage. The property settlement agreement (PSA), incorporated into the judgment of divorce, addressed child support and college education expenses. Nonetheless, subsequent to the entry of the judgment of divorce, defendant filed a number of applications to reduce child support. On September 16, 2005, defendant moved for modification of his support obligation, retroactive to April 2003, because he had been declared disabled. Plaintiff cross-moved for an order enforcing payment of defendant's outstanding child support arrears and, with respect to his eldest daughter only, payment of outstanding unreimbursed college expenses. The trial judge concluded that defendant's retroactive application to reduce child support was prohibited by N.J.S.A. 2A:17-56.23 and that defendant had otherwise failed to establish changed circumstances under Lepis v. Lepis, 83 N.J. 139 (1980). The court granted plaintiff's enforcement action.
On appeal, we rejected defendant's arguments in support of his retroactive application of N.J.S.A. 2A:17-56.23, but we remanded the matter to the trial court for further proceedings that would afford defendant an opportunity to present supplemental evidence related to his disability and to permit the trial judge to exercise his discretion to use September 16, 2005, the filing date of defendant's motion for post-judgment relief, as the effective date of any future modification. Ruggero v. Ruggero, No. A-1694-05 (App. Div. May 31, 2006) (slip op. at 7). We also directed the trial court to determine whether any derivative payments should be credited against defendant's arrearages, which exceeded $50,000. Ibid.
On remand, the trial court ordered the exchange of information between the parties and scheduled the matter for trial. By order dated January 10, 2007, the parties waived their right to trial and agreed that the court would decide the issues through the submissions of certifications and briefs. The parties also agreed the court could exercise its discretion to determine whether oral argument would be required.
On May 16, 2007, Judge James Convery entered an order and supporting letter opinion in which he (1) determined that defendant's eldest child was not emancipated; (2) credited the $54,382 plaintiff received in SSD benefits against sanctions rather than arrears; (3) set defendant's child support and college education expense arrears, as of May 31, 2007, at $119,632.40, to be paid at $200 per week; (4) decreased defendant's child support obligation for the children effective September 16, 2005 forward based upon an analysis of defendant's lower SSD income; (5) ordered that all of defendant's $360 per week child support obligation and arrears total be automatically withheld from defendant's SSD benefits payments and provided to plaintiff via the New Jersey Family Support Center; and (6) directed defendant to provide appropriate proof of life insurance. The present appeal ensued.
Defendant raises the following points for our consideration on appeal:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DETERMINED THAT THE PARTIES' DAUGHTER, [A.R.], WAS NOT EMANCIPATED; DEFENDANT'S OBLIGATION TO PAY CHILD SUPPORT, COLLEGE EDUCATION EXPENSES, AND OTHER EXPENSES FOR [A.R.] SHOULD HAVE BEEN TERMINATED ON THE DATE SHE GRADUATED FROM COLLEGE.
THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST TO RECEIVE AN OFFSET CREDIT FOR DERIVATIVE SOCIAL SECURITY DISABILITY BENEFITS RECEIVED BY THE PLAINTIFF WAS A CLEAR ERROR OF JUDGMENT AND ABUSE OF THE TRIAL COURT'S DISCRETION.
THE TRIAL COURT'S ENFORCEMENT OF MONETARY SANCTIONS TO OFFSET DERIVATIVE SOCIAL SECURITY BENEFIT CREDITS AND CREDITS DEFENDANT WAS ENTITLED TO RECEIVE FOR COLLEGE EXPENSES WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.
DEFENDANT'S CHILD SUPPORT AND/OR CHILD EDUCATION EXPENSE OBLIGATIONS SHOULD BE MODIFIED IN CONFORMITY WITH ANY ORDER ENTERED BY THIS COURT; DEFENDANT'S CHILD SUPPORT AND/OR COLLEGE EDUCATION EXPENSE ARREARS SHOULD BE MODIFIED IN CONFORMITY WITH ANY ORDER BY THIS COURT, AS WELL.
Our review of the factual findings of a judge sitting without a jury is quite limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord deference to the judge's factual findings, and our task is to determine whether the findings are supported by substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms, supra, 65 N.J. at 483-84. If the judge's factual findings are supported by the evidence, an appellate court should not disturb them. Id. at 484. In particular, "[b]ecause 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 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). Such conclusions of law are subject to plenary review. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
A. Emancipation of the Eldest Child
Parents are obligated to provide support for their unemancipated child's "necessary education," which may include postgraduate study expenses such as law school. Newburgh v. Arrigo, 88 N.J. 529, 543-45 (1982). "Necessary education" for child support purposes is "a flexible concept that can vary in different circumstances." Id. at 543-44. In Newburgh, supra, the Supreme Court established a non-exhaustive list of factors courts should consider in evaluating whether a parent is obligated to contribute to their child's postgraduate education expenses, including:
(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Id. at 545.]
Six years after Newburg, supra, was decided, the Legislature codified the Newburg factors into law by amending the child support statute, N.J.S.A. 2A:34-23(a). Gac v. Gac, 186 N.J. 535, 543 (2006) (citing Kiken v. Kiken, 149 N.J. 441, 449 (1997)). The Newburgh factors and the statutory incorporation of those factors into law demonstrate both legislative and judicial recognition that in appropriate circumstances, parents may be responsible for supporting their children while they pursue higher education. Kiken, supra, 149 N.J. at 450. A trial judge "should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac, supra, 186 N.J. at 543.
We have addressed the balancing obligation with an approach requiring that the "essential inquiry [be] whether the child has moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own." Dolce v. Dolce, 383 N.J. Super. 11, 17-18 (App. Div. 2006) (internal quotations omitted) (citations omitted). "This determination involves a critical evaluation of the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Id. at 18 (citing Newburgh, supra, 88 N.J. at 545); see also Tretola v. Tretola, 389 N.J. Super. 15, 21 (App. Div. 2006). We have also looked to whether parties addressed higher education in a PSA. Dolce, supra, 383 N.J. Super. at 18. Although parents may not contract away their child's right to support, a PSA may demonstrate their intent to bind themselves to such an obligation beyond the presumptive age of emancipation. Ibid.; see also Tretola, 389 N.J. Super. at 21.
Here, in refusing to declare defendant's eldest child emancipated, the trial judge did not specifically refer to the Newburgh factors or N.J.S.A. 2A:34-23(a) in the May 16, 2007 order or accompanying opinion letter. The judge did, however, refer to Rule 5:6A and the Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A, no. 18 (College or Other Post-Secondary Education Expenses). He also used Sole Parenting Worksheets to determine defendant's and plaintiff's respective child support obligations. Thus, while the judge did not make a detailed finding as to each of the factors contained in Newburgh or N.J.S.A. 2A:34-23(a), implicit in his analysis is a clear consideration of those factors.
The trial judge also considered the defendant's February 12, 2007 Case Information Statement (CIS), in which defendant certified that his gross monthly income from SSD benefits was $1,887.00, reduced monthly by his $1,217 monthly child support obligation, leaving defendant with $670, and from that amount is deducted $480 for his monthly expenses, as reflected in his CIS. The trial court determined that it was within defendant's financial capabilities to continue supporting his daughter's higher education pursuits. The judge also found that defendant's daughter had not moved beyond the sphere of influence of her parents, specifically noting that she continued to live at home and commuted to school. Additionally, in her submissions, plaintiff indicated that whenever possible, their daughter accepted employment and other responsibilities to assist in financing her education, such as working as a college resident advisor. Consequently, although the parties' PSA did not specifically define emancipation, there was sufficient credible evidence in the record to support Judge Convery's conclusion that defendant's oldest child was not emancipated. Those findings are entitled to our deference. Cesare, supra, 154 N.J. at 411-12; Rova Farms, supra, 65 N.J. at 483-84.
B. Child Support Credit
Defendant next claims that the trial court abused its discretion when it failed to credit the retroactive lump sum payment of SSD benefits that were paid directly to plaintiff, totaling $54,382, toward the $119,632.40 in calculated arrearages, but instead credited those payments toward the sanctions that had been imposed against defendant. We disagree.
There is no dispute that the Child Support Guidelines (Guidelines) provide that the amount of SSD benefits a child receives "must be deducted from the total support award." Child Support Guidelines, Presssler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A, 2042, Line 12 (1999). However, in Sheren v. Moseley, we considered whether the Guidelines are applicable where the supporting spouse is seeking a credit against child support obligations for the period during which children receive SSD benefits representing substitutes for lost wages. 322 N.J. Super. 338, 340 (App. Div. 1999). We concluded that "[b]y their express terms, the [G]uidelines only apply to 'establish[ing] or modify[ing] child support[.]'" Id. at 340 (quoting R. 5:6A). Consequently, the trial judge was under no obligation to apply the $54,382 credit against outstanding arrearages. Moreover, even if the credit were subject to the Guidelines, we have previously recognized that for good cause, a trial court may deviate from applying the Guidelines. See Diehl v. Diehl, 389 N.J. Super. 443, 449-50 (App. Div. 2006) (holding the propriety of a credit may depend upon the equities of the case); see also Potter v. Potter, 169 N.J. Super. 140, 149 (App. Div. 1979) (holding application of lump sum payment from Social Security against spouse's outstanding support arrearages was appropriate because the obligation accrued only during the period when the payor spouse was disabled and there was no evidence that the failure to pay outstanding support was willful or contumacious.)
Here, defendant failed to seek a modification of his support obligation until over two years after he sustained the disabling injury. Notwithstanding that he had filed numerous post-judgment motions in New Jersey, albeit unsuccessful motions, defendant inexplicably filed for a modification in New York four months after his surgery in April 2003. When the New York court dismissed his action on jurisdictional grounds, he waited another two years before seeking relief in the New Jersey courts. Further, unlike the payor spouse in Potter, supra, defendant has had a history, which we recognized in our earlier opinion, of willfully disobeying court orders and failing to satisfy his child support obligations. As a result of his conduct, the trial court has issued a number of post-judgment enforcement orders against defendant. As of October 21, 2005, when he applied for relief in New Jersey courts, defendant had already accumulated child support arrears of $47,503.20. Defendant has been incarcerated for his failure to satisfy his support obligations and has accumulated $315,000 in sanctions for his failure to comply with court orders. Thus, the history of defendant's persistent disregard for his support obligations militates against consideration of any equities that may favor applying the $54,382 credit against his outstanding arrears. Diehl, supra, 389 N.J. Super. at 449-50.
Defendant urges that plaintiff's original notice of cross-motion did not seek enforcement of the October 31, 2002 court-ordered sanctions. While acknowledging the court's power to issue sanctions, defendant contends that those sanctions must be reasonable under the facts of a particular case and that the sanctions here, totaling $315,000, went beyond the desired coercive effect and were unfair.
In her responding brief, plaintiff argues that after "a dozen years of economic abuse and flagrant violations of each and every judicial [o]rder issued," the court issued its ruling "with full knowledge of the history and facts of the case" and its finding was fair, "reasonable and equitable." We agree.
Our courts have long recognized the power of Family Part judges to impose economic sanctions for failing to pay child support. Innes v. Carrascosa, 391 N.J. Super. 453, 498-99 (App. Div.), certif. denied, 192 N.J. 73 (2007). Moreover, Rule 5:3-7(b) expressly provides:
On finding that a party has violated an alimony or child support order the court may, in addition to remedies provided by R. 1:10-3, grant any of the following remedies, either singly or in combination: (1) fixing the amount of arrearages and entering a judgment upon which interest accrues; (2) requiring payment of arrearages on a periodic basis; (3) suspension of an occupational license or driver's license consistent with law; (4) economic sanctions; (5) participation by the party in violation of the order in an approved community service program; (6) incarceration, with or without work release; (7) issuance of a warrant to be executed upon the further violation of the judgment or order; and (8) any other appropriate equitable remedy.
[R. 5:3-7(b) (emphasis added).]
In construing this rule, we found in Innes, supra, that sanctions the trial court originally imposed at $100 per day and then at $500 per day against a parent in a custody dispute that eventually totaled $148,000, were reasonable given the parent's repeated and willful violations of court orders. 391 N.J. Super. at 498, 499.
Likewise, in the present matter, the trial judge, in refusing to grant defendant's request to offset the $54,382 against outstanding arrearages, stated,
This court found in numerous post judgment applications the defendant continuously violated his obligation to support his children when [he] was able to work and earn an income well before his claim of disability. The equitable maxim comes into play "wherever a legal right has been infringed a remedy will be given". This maxim means equity will act to correct an injustice or equity will not knowingly become an instrument of injustice. Another maxim is "he who seeks equity must do equity" or another way "he who comes into equity must come with clean hands".
Clearly, with the defendant's failure to comply with his children's support obligation even in the face of accrued interest or the aforementioned sanctions imposed upon him his request to obtain offset credit against his arrears prior to September 16, 2005 will be denied. . . . The $54,382 received by the parties' children is clearly an equitable offset to the defendant's refusal and sanctions for his failure to pay support prior to April 2003 or prior to September 2005.
It also appears that the trial judge offset defendant's outstanding college expense obligation against the sanctions. As of December 4, 2004, defendant's share of college expenses amounted to $17,337.61 and by May 31, 2007 had reached $58,423.56. The judge noted that these college expenses were calculated from defendant's pre-injury obligation to pay for sixty-five percent of the college expenses. The trial court determined that because of his injury, defendant's share of college expenses should have been recalculated at thirty-three percent for 2005, forty-five percent for 2006, and forty-five percent for 2007. Based on the sanctions imposed for failing to pay college expenses "when he was financially able to pay[,]" the trial judge found that it was reasonable to "offset credit for the defendant's college expenses [September 16, 2005 - May 31, 2007] with the sanctions imposed against him for his failure to pay child support and college expenses according to the parties' Final Judgment of Divorce[,] property settlement agreement[,] and subsequent orders for enforcement" against a lower amount which would have resulted from recalculations.
By the October 31, 2002 court order, the judge imposed sanctions on defendant of $100 per day until he paid his share of college expenses, which defendant did not appeal. This amounted to $18,600 in April 2003 and approximately $105,000 in September 2005. Also under the October 31, 2002 order, defendant was sanctioned $100 per day if he did not reimburse his daughter $3,357.11, representing sixty-five percent of her first semester college expenses. Arrears in connection with this expense amounted to $37,200 as of April 2003 and $210,000 as of September 2005. In total, as of September 2005, the trial judge determined that defendant had incurred $315,000 in sanctions. Had the judge combined the amount due to plaintiff for sanctions with the amount of outstanding support arrearages, defendant would have owed plaintiff a total obligation of nearly $470,000. Assuming defendant's income continues to be limited to what he receives from SSD benefits, his ability to pay sanctions totaling more than ten times his annual benefits could prove slight.
Given defendant's likely inability to pay in excess of $300,000 in sanctions because of his disability, offsetting the SSD credit against the sanctions represents a practical and definitive way to address defendant's years-long and well-documented history of failing to pay his child support and education expense obligations and also maintains the desired "sting" to deter such conduct in the future. Innes, supra, 391 N.J. Super. at 498.
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