March 5, 2009
PAUL KLINGENBERGER, PLAINTIFF-RESPONDENT,
BLANCH KLINGENBERGER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-904-03F.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges A. A. Rodríguez and Payne.
Defendant, Blanch Klingenberger (wife), appeals from orders entered by a judge of the Family Part on November 26, 2007 and December 11, 2007 that resolved issues between the parties concerning payment of expenses for the parties' two children and set the amount of child support payments by plaintiff, Paul Klingenberger (husband). Husband has not cross-appealed.
The record discloses that the parties were married on June 5, 1986 and divorced on August 21, 2003. Both were born in Peru. The parties have two children, a daughter, born on May 25, 1988, and a son born on April 12, 2000.
The judgment of divorce incorporated a property settlement agreement (PSA) between the parties, which provided that husband and wife would share joint legal custody of the two children. Wife would have residential custody of the son, and husband would have residential custody of the daughter. The agreement provided that each party would have parenting time with the two children together every other weekend from Friday evening to Sunday at 6 p.m. Additionally each would have parenting time on one evening per week. Holidays were to be split equally, and the parties agreed that each could have up to three weeks of vacation time with the children. The PSA further provided that if wife traveled to Peru with the children for vacation, husband would pay the air fare for the daughter. If husband traveled to Peru with the children for vacation, wife would pay one-third of the son's air fare.
Pursuant to the PSA, husband's child support obligation for the son was $244 per week, including $125 per week in child care expense. Wife's child support obligation was set at $95 per week. Thus, husband was required to pay wife the net amount of $149 per week. Payment of permanent alimony by husband to wife in the amount of $100 per week was also specified.
The PSA provided that wife was to obtain medical insurance for the children so long as it remained at no cost to her. If costs were imposed, then the cost of the insurance would be added to the child support guidelines calculation so as to apportion the cost to the parties. The PSA also provided that the children's unreimbursed medical expenses would be shared by the parties. The parent having residential custody of the child would pay the first $250. Thereafter, expenses would be apportioned at thirty-six percent to wife and sixty-four percent to husband. The PSA was silent regarding the apportionment of any educational expense incurred prior to college.
From February 2005 to August 2005, the daughter underwent treatment for drug addiction in Peru, incurring $4,355 in medical expenses and $1,057 in airfare costs that were paid by husband. At the hearings in this matter and on appeal, wife claims that she did not agree to send the daughter to Peru, and that she should not be held responsible for the costs of treatment. However, in a certification dated June 11, 2007, wife stated:
[The daughter] had serious substance abuse problems during the time of the divorce.
After the divorce Plaintiff and I agreed to send her to a program in our home country of Peru.
In her brief on appeal wife contends, alternatively, that she should, at most, be held responsible for thirty-six percent of the costs incurred in treatment. She also argues that her child support obligation should have been suspended during the period of treatment.
From May 2006 to April 2007, wife enrolled the son in a Huntington Learning Center, where he obtained private tutoring. Charges in the amount of $6,511.36 were incurred. Husband has taken the position that he only agreed to enroll the child for an initial six-week period, at the end of which he would evaluate whether the child was making progress. An e-mail by husband to wife regarding this subject states:
Tell the woman that you'll pay her monthly in that way it will be easier and if [the son] does not progress at the level that she promised in 6 weeks a claim can be made. Otherwise no claim can be made. I wish to cooperate but my budget is limited and you owe me. In other words adjustments have to be made.
Evidence at the hearing indicated that wife had paid $5,463 to Huntington, and that husband had reimbursed wife $231, leaving a balance due of $1,048.36.
At the November 26 hearing, wife was represented by counsel, whereas husband appeared pro se. With the agreement of the parties, the judge ruled that husband owed wife $1150.77 in unreimbursed medical expense and $936 as reimbursement for dental insurance premiums for a total of $2,086.77. After considering the parties' arguments with respect to whether husband had agreed to more than six weeks of tutoring at the Huntington Learning Center, the judge ruled in husband's favor, fixing his liability at $1,000. As a consequence of these rulings, the judge held that husband owed wife a total amount of $3,086.78.
The judge next considered arguments regarding husband's income, earned as a sky cap at Newark Airport. In that regard, wife claimed that husband's income exceeded that reported, because it was predominantly derived from cash tips. Although the judge denied discovery of husband's actual income, he did impute to him an income of $47,559 - the income set forth on his 2006 tax returns. After husband agreed to provide after-school care for his son, eliminating child care costs, husband's child support obligation was fixed at $125 per week. The daughter was declared emancipated.
Believing that all issues had been resolved, the judge determined that husband owed wife $3,087. He ordered that amount to be paid at a bi-weekly rate of $150. If a default occurred, the total amount owed would be accelerated and an additional $450 sanction would be imposed. Additionally, the judge required husband to pay $30 per week in child support arrears. As a consequence, his total obligation was $330.*fn1
Discovery regarding the level of husband's income was denied on the ground that wife had not made a prima facie showing of change of circumstances. However, the judge stated that he would permit a further motion addressing this issue.
At this point in the hearing, the subject of the daughter's drug treatment in Peru was raised. After hearing argument on this subject, the judge limited husband's total obligation to wife for unreimbursed expense to $1,000, stating:
All right. Clean slate here. You're [husband] going to pay her back the $1,000 for the Huntington. And that's the only money you're going to pay. I'm offsetting what your $4,000 something in Peru. I'm satisfied that you paid it. She's not paying you back $4,000. I'm offsetting the balance of the 3,028. You owe her $1,000. So what he owes now is $1,000.
An order was entered that incorporated the judge's determinations regarding child support and payment of unreimbursed expense.
Thereafter, counsel for wife wrote to the judge to inform him that child support had been wrongly calculated, because the judge had failed to credit wife with her mandatory pension contribution of $38 per week. Counsel also pointed out to the judge that the judge's worksheet "may have listed [husband] as filing single." Counsel stated this was also incorrect "since his tax return for 2006 showed him filing as married with 4 dependents." This fact, counsel stated, made a difference in husband's net income. Counsel claimed that the proper level of support should be $144, not $125. Apparently, husband also wrote to the judge to inform him that he would be unable to provide the promised child care for the son and that commercial care would be required.
As a consequence of these communications, on December 11, 2007, the judge held a second hearing in the matter. At that hearing, it was determined that the Jewish Community Center of Metro West New Jersey was the only entity that was a suitable and available child care provider. The judge apportioned the registration fee of $252 and the weekly cost of $341, requiring husband to pay 52% of the cost and wife to pay 48%. The judge ruled that the same apportionment should be utilized in connection with any other daycare costs incurred on behalf of the son. Turning to husband's child support obligation, the judge recalculated the amount, utilizing the child support guidelines worksheet, and determining that husband owed wife $135 per week.*fn2 This appeal followed.
On appeal, wife first challenges the judge's calculation of unreimbursed expenses. In this regard, we regard the factual findings by the trial judge to be binding, if they are supported by adequate, substantial and credible evidence. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
In this case, the methodology used by the trial judge to calculate the amount of the parties' claims against each other in connection with the Huntington Learning and Peruvian drug treatment expenses is not wholly evident. Nonetheless, we will uphold the judge's decision if there was "ample credible evidence in the record to support [the judge's] determination." Finger v. Zenn, 335 N.J. Super. 438, 445-46 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001).
In reviewing the judge's apportionment of the expenses incurred in connection with the son's tutoring by the Huntington Learning Center, we find adequate factual support in the record, consisting of husband's e-mail and corroborative testimony, for the judge's determination that husband had agreed only to six weeks of treatment. However, we find that the judge overestimated husband's liability, which should have been fixed at the lower figure of $603.49.*fn3
We also find sufficient evidence to support the judge's determination that wife consented to the daughter's treatment for her drug addiction in Peru, basing that conclusion on wife's concession in her June 11, 2007 certification. As we have stated, husband claimed that he had paid $4,355 in medical expenses and $1,057 in airfare costs in connection with that treatment, for a total of $5,412. Although the parties had agreed that husband would bear the cost of the daughter's airfare when either parent took the child to Peru on vacation, no agreement existed regarding the apportionment of airfare costs when incurred for medical treatment. Because the airfare was a necessary component of treatment in Peru, we find that it could have reasonably been included as a medical expense. However, by seeking "four thousand dollars and change," husband appears to have conceded that he was obligated to pay for the daughter's air fare, and that concession was accepted by the trial judge. Accordingly, wife's share is $1,477.80.*fn4
We reject wife's claim that she should not have been required to pay child support for her daughter while she was undergoing treatment in Peru. Wife failed to move for such relief in a timely fashion, and retroactive modifications in child support are statutorily prohibited. See N.J.S.A. 2A:17-56.23a.
We also reject wife's objection to the currency exchange rate used in converting Peruvian nuevos soles to United States dollars. At the hearing, a rate of three to one was utilized. Wife not claims that 3.48 to one was appropriate. However, she has offered no evidence to substantiate this revised rate. Moreover, because wife's objection has been raised for the first time on appeal, we decline to address it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
As the result of this analysis, we conclude that wife was slightly underchanged by the judge's determination that she was owed $1,000 for unreimbursed expense. That figure should have been $1,389.01.*fn5
We find husband's child support obligation to have been calculated in accordance with child support guidelines as set forth in Appendix IX of the New Jersey Court Rules. See also R. 5:6A. We note in this regard that the judge permitted a further motion seeking imputation of a higher income to husband, should wife have a basis for such a motion.
In summary, we find that the Family Part judge miscalculated the amount of unreimbursed expense owed by husband to wife, and that an additional sum of $212.46 is owed by him. Pursuant to Rule 2:10-5, we exercise original jurisdiction to modify paragraph 9 of the order of November 26, 2007 to require payment by husband of a total sum of $1,389.01, under the payment terms otherwise specified in that order. In all other respects, the orders of November 26 and December 11, 2007 are affirmed. The Family Part shall issue a corrected judgment.
Affirmed in part; reversed in part.