July 16, 2008
MARYROSE CRIST, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
DAVID K. CRIST, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-646-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 19, 2008
Before Judges Lintner, Graves, and Alvarez.
Plaintiff, Maryrose Crist, appeals from a Family Part order issued July 13, 2007, which awarded defendant, David K. Crist, post-judgment relief. Defendant cross-appeals the court's denial of his application for counsel fees and costs. We affirm in part, reverse in part, and remand for a plenary hearing as to the remaining issues.
On April 18, 2000, a final judgment of divorce was entered which incorporated the parties' property settlement agreement (PSA). They share joint legal custody of two teenage daughters, ages seventeen and fifteen, who reside with plaintiff. The PSA allowed defendant 104 overnight visits with the children per year.
On June 15, 2007, defendant filed a notice of motion to enforce litigant's rights and for other relief. He sought the following: (1) enforcement of the parties' agreement for "joint legal custody" and family counseling; (2) recognition of defendant's right to joint parenting time; (3) recalculation of weekly child support; (4) the award of one of the children as an exemption for federal income tax purposes; (5) an order restraining plaintiff from discussing monetary issues with the children; and (6) counsel fees.
Plaintiff filed a notice of cross-motion on June 28, 2007, in which she sought the following: (1) redress for defendant's payment of federal taxes from the children's savings accounts;
(2) to be named a joint custodian of the children's savings accounts; (3) to restrain defendant from removing funds from the children's accounts without her permission; (4) to compel defendant to be responsible for all the tax consequences of his decision to pay the children's 2007 taxes with funds taken from their accounts; (5) to be reimbursed for extraordinary expenses incurred on behalf of the children; (6) to have child support remain at $300 a week; (7) to compel the use of the sole-parenting worksheet if support were recalculated; (8) to continue to be able to declare both children as dependents on her tax return; (9) to be awarded counsel fees; (10) to compel defendant to file an amended case information statement (CIS), on the grounds that his initial filing was fraudulent; (11) to compel defendant to produce proof of life insurance; (12) a plenary hearing; and (13) to obtain reimbursement of $600 from defendant related to a rescheduled vacation.
The PSA required defendant to pay weekly child support of $300, based on calculations made using the sole-parenting worksheet. See Child Support Guidelines (Guidelines), Pressler, Current N.J. Court Rules, Appendix IX-C to R. 5:6A at 2346-48 (2008). The family court judge recalculated child support using the shared-parenting worksheet, and thereby reduced weekly child support to $209 effective June 15, 2007, the filing date of defendant's motion. See Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-D to R. 5:6A at 2349-52 (2008). The figure was based on weekly income of $2525 for defendant, and $1833 for plaintiff. Plaintiff works limited hours in order to be home when the children return from school three days a week. Both parties are employed as engineers. Pursuant to the PSA, the parties share the cost of the children's private schooling equally.
Defendant's father created college savings accounts for the children's education, to which the parties, to their credit, contributed during the marriage. The PSA specified that neither would invade the college accounts without the written consent of the other. Until 2007, each party paid one-half the taxes due on the accounts from their own funds. In 2007, however, defendant unilaterally withdrew $797.52 from the account in order to pay taxes. Plaintiff had sent defendant $380, anticipating that the year's tax liability would be paid in the same manner as in prior years. In the July 13, 2007 order from which this appeal is taken, the judge added plaintiff as a signatory on the account, but did not require defendant to replace the withdrawn funds. She directed defendant to reimburse the $380 plaintiff had sent him.
On June 12, 2007, the parties filed a consent order in which they agreed to select a mutually acceptable family counselor whose services would be covered by their insurance.
Plaintiff contends the need for counseling arose because of conflicts between defendant and the parties' oldest child. Counseling was supposed to have commenced by June 30. Delays occurred in the selection of the counselor, as a result of which the process had not begun as of the July 13 hearing.
The court conducted oral argument on July 13, 2007, having previously issued a tentative decision. R. 5:5-4(e). That same day, the court issued an order granting all of defendant's requests, with the exception of counsel fees. All the relief plaintiff sought was denied, except that the court ordered plaintiff be added as a joint custodian of the children's college accounts, enjoined defendant from removing funds from the children's accounts in the future, and required defendant to produce proof of life insurance. Using the shared-parenting worksheet, the court reduced defendant's obligation to $209 per week, and allowed him to declare the younger child as a dependent for federal tax purposes.
On appeal, an order entered by the family part is entitled to substantial deference. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[M]atrimonial courts possess special expertise in the field of domestic relations." Id. at 412. So long as trial court findings are supported by adequate, substantial and credible evidence, they will be affirmed on appeal. Id. at 411-12. "[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 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
A plenary hearing is required, however, when there are "'contested issues of material fact on the basis of conflicting affidavits.'" Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (quoting Conforti v. Guliadis, 245 N.J. Super. 561, 565 (App. Div. 1991)). Without such a hearing, a judge cannot make credibility assessments and therefore cannot fairly determine the facts, which in family disputes often "'involve far more than economic factors.'" Id. at 323 (quoting Rothman v. Rothman, 65 N.J. 219, 299 (1974)). In this case, a plenary hearing should have been conducted as to several issues which required a closer examination of the facts than is possible through review of conflicting certifications or affidavits.
Plaintiff contends the court erred when it granted defendant the right to take the younger child as a dependent on his income tax return. This issue was not addressed in the parties' PSA. Plaintiff claims the omission was intentional, because IRS rules state that, absent agreement to the contrary, only the principal custodial parent is entitled to take children as exemptions. Accordingly, she argues that because she has always been the principal custodial parent, she is entitled to take the children as exemptions. Furthermore, she claims she was given the benefit of both children as dependents because defendant was not required to pay a pro rata share of the children's tuition and related expenses, only one-half. The court made no findings of fact, or gave any legal analysis, explaining the decision. This would have been particularly helpful as in the same order defendant's child support obligation was significantly reduced. A plenary hearing is necessary to explore the effect, if any, the exemption has on the parties' financial status, and only then determine if defendant should be awarded the exemption.
The PSA provides that the children's college savings accounts cannot be "invaded for any purpose without both [p]arties['] express, written permission." Defendant interprets "to invade" to mean a withdrawal from the account that would in some fashion destroy it, and not a withdrawal to pay taxes.
Without explanation, the judge denied plaintiff's application to compel defendant to reimburse the account, and found the PSA was not violated by defendant's conduct. For years, until 2007, each party paid one-half the tax liability. It is not clear why defendant chose to unilaterally withdraw the tax payment, nor why he should not reimburse the account. Moreover, if the judge did not consider the withdrawal improper, it is not clear why she would have added plaintiff as a signatory. The judge's decision is hereby vacated. The issue should be reconsidered at the plenary hearing.
Plaintiff contends the court erred by using the shared-parenting worksheet in calculating child support. She asserts that because defendant has never spent the 104 overnights yearly with the children allowed by the PSA, the sole-parenting worksheet should have been used. Guidelines, Pressler, Current N.J. Court Rules, Appendix IV-B to R. 5:6A at 2307 (2008). Defendant disputes this assertion, claiming that although on occasion, he has missed parenting time because of work, he has in fact spent at least 104 overnights annually with the children.
Paragraph 14(c) of Appendix IX-A of the Guidelines requires the following exist before a court employ a shared-parenting worksheet:
(1) A parenting plan that specifies parenting times and responsibilities must be filed with or ordered by the court.
(2) The PAR [parent of alternate residence] has or is expected to have the child for the substantial equivalent of two or more overnights per week over a year or more (at least 28% of the time) and the PAR can show that separate living accommodations for the child are provided during such times (i.e., evidence of separate living accommodations maintained specifically for the child during overnight stays). [Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2296 (2008).]
Once these threshold criteria are met, a trial court's decision to use the shared-parenting worksheet will be reviewed employing an abuse of discretion standard. See Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2295-96 (2008).
Despite plaintiff's assertions that defendant did not enjoy all the visitation agreed to in the PSA, the judge found her proofs did not raise a material factual dispute such that a plenary hearing was warranted. Plaintiff presented a letter defendant's counsel supplied in 2005, for settlement purposes, which suggests that defendant would be amenable to seeing his children for ninety overnights per year. The settlement letter, obviously, is not proof of anything. Plaintiff also supplied nine e-mails in which defendant indicated he might not, on particular occasions, be able to exercise his visitation because of his work schedule. Because the nine e-mails were prospective, and spanned a two-year time period, the judge did not consider them to constitute proof either.
The materials were sufficient, however, for the judge to have granted plaintiff the opportunity to present testimony at a plenary hearing. Although the submissions were not sufficient, in and of themselves, to establish that defendant was not exercising his visitation, when joined with her certifications, they raised a material dispute of fact. If plaintiff can prove defendant is not spending 104 overnights with the children, child support must be recalculated using the sole-parenting worksheet.
Until a decision is made after plenary hearing, the support shall remain at its present level. Plaintiff may, at her option, elect to prove defendant did not visit the required number of overnights in the year preceding the July 13, 2007 order, only address visitation since that date, or both. If plaintiff succeeds, the support will be recalculated using the sole-parenting guidelines, and an appropriate modification made to the support order, retroactive to the relevant date.
Plaintiff also contends the judge erred by using the Guidelines at all because her budgeted needs exceeded Guidelines amounts. That is not a sufficient basis in this case to defeat the presumption that the Guidelines are applicable. Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2283 (2008). On this point, the order is affirmed.
Plaintiff also urges us to find error in the court's refusal to order defendant to contribute to the children's extraordinary expenses including, but not limited to, the costs of field hockey camp, driving school, a class ring, passports, class trips, and the like.
"[I]n high income families, 'the children are entitled to the benefit of financial advantages available to them.'" Accardi v. Accardi, 369 N.J. Super. 75, 88 (App. Div. 2004) (quoting Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div), certif. denied, 174 N.J. 364 (2002)). When claiming that a non-custodial parent should contribute towards certain extraordinary expenses, "the moving party bears the burden of proof to demonstrate that the expenses . . . are both legitimate and reasonable." Id. at 87. Here, the court did not find that the expenses were illegitimate or unreasonable, but only that the parties had not agreed to them. That finding is not a basis to refuse plaintiff's request.
The family court should have granted a plenary hearing, and only then determined (1) which expenses are extraordinary; (2) which expenses are ordinary extracurricular expenses; (3) "whether [these] extracurricular expenses should be added to or included in defendant's support obligation under the statutory factors;" and (4) "the allocation of extraordinary and extracurricular expenses between the parties." Id. at 90. Without a plenary hearing, given plaintiff's changed circumstances, including reduced child support, no fair determination can be made of plaintiff's application for reimbursement of extraordinary expenses. Accordingly, the order is vacated on this point as well and the issue shall be revisited at a plenary hearing.
Plaintiff also requests that we vacate the family court's order compelling her to comply with the counseling order, and granting defendant's request for parenting time. The court awarded defendant this relief without making any findings of fact. A review of the certification indicates that the failure to start counseling on the timetable agreed upon was due to the parties' inability to locate a mutually acceptable counselor covered by their insurance. Defendant did not supply a single instance in his moving papers of plaintiff failing to comply with visitation. There is no factual basis for the relief except the unfortunately high level of animosity between the parties. The order is therefore reversed.
Plaintiff seeks reimbursement of $600 she claims she lost as a result of defendant's interference with her vacation in June 2005, which relief the family court denied. The request that we revisit the matter on appeal borders on the frivolous. We consider it to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Plaintiff also appeals from the trial court's refusal to order defendant to file an amended CIS. She alleges that she made a sufficient "showing of inconsistencies, inaccuracies, and possible fabrications." No specifics were provided. Realistically, however, due to the passage of time, if for no other reason, both parties are going to have to file an updated CIS in preparation for the plenary hearing. We do not consider this point to have sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
As to defendant's cross-appeal, we affirm the judge's decision to deny him an award of counsel fees. "In awarding attorney's fees, N.J.S.A. 2A:34-23 requires a court 'to consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.'" Mani v. Mani, 183 N.J. 70, 93-94 (2005) (quoting N.J.S.A. 2A:34-23). Despite the court's failure to articulate reasons, it is obvious from our review of the record that plaintiff earns less than defendant, and as a result of defendant's application, now receives less child support. In addition, just like defendant, she too had meritorious claims, and overall did not seem to be acting in bad faith. No purpose would be served by a remand for the judge to supplement the record on this score.
In summary, we reverse the order as to enforcement of the counseling agreement and of the visitation schedule. We remand the matter as to the question of the tax exemption, invasion of the college accounts, use of the shared-parenting guidelines, and extraordinary expenses. In all other respects, we affirm.
Affirmed in part, reversed in part, and remanded in part.
© 1992-2008 VersusLaw Inc.