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Lewis v. Lewis


July 17, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FM-10587-91.

Per curiam.


Submitted May 7, 2008

Before Judges Parker and Koblitz.

In this post-judgment matrimonial matter, defendant, Robert Rex Lewis, appeals from an order entered on June 29, 2007, which granted reconsideration of a May 17, 2007, order. The May 17 order recalculated child support for twenty-two-year-old Marc, the couple's last remaining unemancipated child. The trial court applied the child support guidelines based on the parties' 2006 incomes. On reconsideration, the trial court granted defendant's application to deduct $7,555 from his 2006 income. Defendant must pay the $7,555 back to the government, as he mistakenly received it through a disability annuity. However, on reconsideration the trial court denied defendant's application to impute full-time employment to plaintiff as had been done by two different judges in the past. Defendant appeals due to this failure to impute income to plaintiff. We affirm the trial judge's decision, finding he did not abuse his discretion when utilizing the particular financial information before him and applying the child support guidelines. See Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006) (finding the evaluation of support orders "turn[s] on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented, which [the appellate court does] not disturb absent an abuse of discretion"). See also, Child Support Guidelines (CSG), Pressler, Current New Jersey Court Rules, Appendix IX-B to R.5:6A (2008).

At the time of this motion plaintiff worked twenty-four hours per week at the rate of $26 per hour ($624 per week), while defendant worked forty hours per week at the rate of $19 dollars per hour ($760 per week). Plaintiff has worked from twenty-four to twenty-six hours a week for the past twenty-five years. On appeal, defendant argues that the motion judge erred in not imputing to plaintiff additional income for sixteen hours per week at the current minimum wage (an additional $114 dollars per week) as had been done in two previous orders dated December 30, 1999, and November 2, 2001,*fn1 by two different trial courts.

This matter has been in court many times. The parties were divorced December 21, 1992, after a seventeen-year marriage. On October 14, 1997, we commented in an unpublished appellate decision in this matter that "[e]vents subsequent to the entry of divorce judgment led to a constancy of motions regarding support and alimony." Over ten years later we note that the litigation between the parties continues unabated.

A recalculation of child support was previously required by the older child's emancipation, and again at the time of this motion when twenty-two-year-old Adam was emancipated by consent after he left college and began working full-time. The remaining child, Marc, Adam's twin brother, was enrolled full-time in Gloucester County College. He anticipated graduation from community college in May 2007, having registered full-time at Rowan University for the fall of 2007. Defendant does not contribute to Marc's educational costs.

Defendant pays $40 per week in alimony and has remarried. Both parties have had various health issues in the fifteen years since their divorce. Plaintiff was recently diagnosed with cancer for which she received treatment and must follow up regularly. As a result, her medical expenses have increased. Plaintiff requested that her alimony be restored to the $50 per week set at their divorce in 1992. Alimony had been reduced to $40 per week in 1995 as a result of an application by defendant. The trial court denied plaintiff's request to reinstate the prior alimony amount.

Although she does not cross-appeal, plaintiff points out that the trial court failed to use a uniform method in arriving at the parties' respective incomes utilized in the CSG calculation. The trial court used income as defined by the federal government for defendant, while using income as defined by the state for plaintiff. Had the same income method been used, plaintiff suggests approximately $2500 more in annual income would have been attributed to defendant for child support purposes.*fn2 Accordingly, the trial court decided financial issues dealing with both child support and alimony in the underlying motion.

The sole issue on appeal is the trial court's choice not to impute income to plaintiff in the child support calculation. The analysis of that issue must be considered in the context of the entire financial picture which the trial judge had before him. Caplan v. Caplan, 182 N.J. 250, 265 (2005), citing Child Support Guidelines, Pressler, Current New Jersey Court Rules, Appendix IXA to R. 5:6A at 2516-17 (2005) (determining whether income should be imputed to a parent, the court should consider what the employment status and earning capacity of that parent would have been if the family had remained intact, the reason and intent for the voluntary underemployment or unemployment, the availability of other assets that may be used to pay support, and the ages of the children). See Larbig, 384 N.J. Super. at 23. Although two prior judges had imputed income to plaintiff, that imputation need not be mechanistically applied to all future support computations. Borchert v. Borchert, 361 N.J. Super. 175, 180 (Ch. Div. 2002) (finding the wife's claim that the earlier court order was "the law of the case" unconvincing and citing State v. King, 340 N.J. Super. 390, 400 (App. Div. 2001)).

Each judge who has considered the financial issues raised by these parties has weighed and balanced a somewhat different set of financial circumstances. To review in a vacuum one specific factor in a support decision would ignore the reality of decision-making in the Family Part. See Tretola v. Tretola, 389 N.J. Super. 15, 21-22 (App. Div. 2006) (reversing and remanding a Family Part judge's enforcement of a child support obligation because the trial court failed to give sufficient consideration to the surrounding financial circumstances, and directing that such decisions cannot "take place in a vacuum" and that the trial court should consider the parents' current financial positions at the time of its decision).

In addition, the findings of the Family Part are entitled to particular deference in view of the special expertise of the matrimonial courts. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998) (noting the Family Part courts possess "special jurisdiction and expertise in family matters"). See MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007), citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (stating that the court will accord deference to the trial court's findings unless they "went so wide of the mark that a mistake must have been made").

We are satisfied here that the trial court considered the financial circumstances of the parties prior to setting child support and applied the CSG correctly. We have carefully considered the arguments advanced by the parties and affirm substantially for the reasons expressed by Judge John Tomasello in his oral opinions of May 17, 2007, and June 29, 2007. Given the continuation of reduced alimony and defendant's failure to contribute to Marc's college expenses, as well as plaintiff's current health issues, it was within the trial courts' discretion not to impute an additional income of $114 per week to plaintiff.


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