March 23, 2009
PAULA BURROUGHS, N/K/A PAULA BALLENTINE, PLAINTIFF-RESPONDENT,
CLARENCE NORWOOD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FV-18-183-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 10, 2009
Before Judges Gilroy and Chambers.
Defendant Clarence Norwood appeals from two orders entered in these post judgment of divorce proceedings. He contends that the first order, an amended final restraining order dated December 20, 2007, should have provided him with more liberal parenting time. He maintains that the second order, dated March 7, 2008, requires him to make child support payments that are beyond his means.
We first address the order concerning parenting time. The parties, now divorced, had one son born of the marriage, who was fifteen years old at the time of the proceedings before the trial court. Plaintiff and the son reside together in New Jersey, and defendant resides in Philadelphia with his new wife and daughter.
Defendant, who had been enjoying supervised parenting time with his son, moved before the trial court for unsupervised parenting time. That application was opposed by plaintiff. After interviewing the son, the trial court granted the motion for unsupervised parenting time, but restricted it to locations in New Jersey. The trial court explained the reasons for this decision as follows:
[B]ecause of [the son's] lack of comfort in being in Philadelphia [where defendant lives] and taking into account the need to allow [the son] the opportunity to have unsupervised contact with his father in New Jersey so that his trust will grow, the court has determined that parenting time does need to be in the [S]tate of New Jersey at this time. To do otherwise is not consistent with [the son's] best interest.
The trial court ordered parenting time every other Saturday afternoon for five hours. The order also provided for telephone contact on Sunday evenings. In addition, defendant was allowed to attend his son's baseball games.
Defendant contends that his parenting time should be more extensive and should not be limited to New Jersey. In particular, he would like to bring his son to Philadelphia where numerous activities are available; to be allowed weekend overnight visits; and to have additional telephone access to his son.
We will "not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Further, we give special deference to the factual findings of family court judges due to their expertise in this area. Cesare v. Cesare, 154 N.J. 394, 413 (1998). In resolving parenting time disputes between parents, it has been said that "the sole benchmark is the best interests of the child." Sacharow v. Sacharow, 177 N.J. 62, 80 (2003).
We find no abuse of discretion here. The trial court properly took into account whether the child would be comfortable going directly from supervised parenting time in New Jersey to unsupervised out-of-state parenting time, and determined that initially at least, the unsupervised parenting time should be within the State. Certainly, after a period of successful unsupervised parenting time within New Jersey, defendant may renew his application to eliminate that restriction, and the trial court may then evaluate the situation at that time. Providing for telephone calls at fixed times was within the trial court's discretion.
We note that at oral argument defendant indicated that while this appeal has been pending, he has seen his son only twice. He expressed his understanding that while the appeal was pending he was unable to enforce the order. This understanding was mistaken. Rule 2:9-1(a) provides the trial court with continuing jurisdiction to enforce its orders while an appeal is pending, unless this court stayed the order under Rule 2:9-5.
We now turn to the child support issue. A hearing was held on the child support dispute on February 21, 2008. Plaintiff testified that her annual income was $143,000 per annum.*fn1
Defendant's testimony and documentation indicated that he was earning about $153-$155 per week. The trial court gave defendant one week to submit additional documentation, namely his 1099 for 2007, his 2006 income tax return, and if he wanted a deduction in the calculation for his daughter living in his household, he needed to provide the court with his current wife's W-2. The record before us does not contain those additional documents*fn2 , nor does it contain the trial court's calculations under the child support guidelines.
The trial court entered an order dated March 7, 2008, fixing defendant's child support obligation at $73 per week, effective February 1, 2008. The order also required that defendant pay $20 toward the arrears that had accumulated from February 1, 2008. Defendant appeals this order contending that he was unable to pay this sum because he was then earning only $152 a week.
An award of child support falls within the discretion of the trial court. Pascale v. Pascale, 140 N.J. 583, 594 (1995). However, the trial court must exercise that discretion in accordance with the governing law and applicable standards. Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).
When it has done so, the decision "will not be disturbed unless it is 'manifestly unreasonably, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Ibid. (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)).
Child support awards are governed by the guidelines set forth in Appendix IX of the Court Rules, and the amount calculated under the guidelines may only be modified or disregarded for good cause shown. R. 5:6A. The amount of child support calculated pursuant to the guidelines is thus presumed to be the correct amount of support. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2315 (2009). That presumption may be rebutted if "circumstances exist that make a guidelines-based award inappropriate in a specific case." Ibid.
Without the trial court's calculations and any additional information defendant may have submitted to the trial court as requested, we cannot determine if the child support award was calculated in accordance with the guidelines, and if not, whether good cause justified that departure. Certainly, on the limited information we have, requiring defendant to pay $73 a week in child support if his income is only $152 a week appears excessive. Accordingly, we reverse and remand for the trial court to recalculate the child support payments.
We note that while this appeal was pending, defendant applied to the trial court for a modification of his child support payments on the basis that he has become physically disabled and is unable to work. Included in the record is the order disposing of this application, although an appeal from this order does not appear to have technically been made. The order, dated July 3, 2008, denied the application, stating that defendant had not provided documentation to support his claim of a disability. While the order did not stay enforcement of defendant's child support obligation, it did suspend his payment of arrears pending appeal. The order required defendant to pay $200 on the date of the hearing or a bench warrant would be issued.
Defendant has included in his appendix his application for Social Security Disability Benefits, some pharmaceutical records, and a doctor's note dated July 9, 2008, stating that defendant is unable to work. We do not know if these documents were provided to the trial court, since many of them postdate disposition of the application. At oral argument before this court, defendant indicated that he understood that his request to reduce his child support payments due to his disability could not be addressed by the trial court until after this appeal was decided.
A practical difficulty arises for an appellant appealing a child support order, when changed circumstances occur while the appeal is pending. Once an order providing for child support is appealed, the trial court loses jurisdiction to modify its terms while the appeal is pending, although the trial court still retains jurisdiction to enforce its orders and it may stay enforcement of the order. R. 2:9-1; R. 2:9-5. Any modification of the child support order by the trial court entered while the appeal is pending is void. Rolnick v. Rolnick, 262 N.J. Super. 343, 366 (App. Div. 1993). In order to obtain relief in these circumstances, the litigant must seek a limited remand from the Appellate Division, so that the trial court may entertain the modification application. See Gordon v. Rozenwald, 380 N.J. Super. 55, 64 n.2 (App. Div. 2005); Pressler, Current N.J. Court Rules, comment 1 on R. 2:9-1 (2009).
In circumstances, where the litigant did not follow that procedure, we may remand nunc pro tunc. See Rolnick v. Rolnick, supra, 262 N.J. Super. at 366 (determining that although the trial court had modified the support order while the appeal was pending and without a remand, we affirmed the order and granted a limited remand nunc pro tunc). Here defendant contends that he became disabled while this appeal of the child support award was pending. He believed that he had to await the outcome of the appeal before a further changed circumstances application could be made based on his disability. In light of this situation, we remand for a determination of the changed circumstances question nunc pro tunc to the date of defendant's modification application. On remand, the parties may reopen the record to present further evidence within time frames provided by the trial court. We do not retain jurisdiction, and if defendant is dissatisfied with the outcome at the trial level on his child support payment, he may appeal anew.
In sum, we affirm the trial court's order of December 20, 2007, providing for parenting time. We reverse and remand the trial court's orders of March 7, 2008, and July 3, 2008, concerning child support.