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Bennett v. Bennett

March 27, 2009

RICHARD BENNETT, PLAINTIFF-APPELLANT,
v.
CHERYL BENNETT, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-439-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2009

Before Judges Grall and Ashrafi.

Rick and Cheryl Bennett were married for sixteen years and have two children. By agreement, an arbitrator's award on financial matters was incorporated into their judgment of divorce. Since their divorce, they have returned to the court several times disputing financial issues. Now, more than eight years after the divorce, we must again remand to the trial court to recalculate the amount of child support that Rick should have been paying to Cheryl since 2004.

In 2003, Cheryl filed a motion to increase alimony and child support, and otherwise amend financial terms of the divorce judgment. She argued that circumstances had changed since the divorce, in particular, the precipitous decline in value of stock options for Lucent Technologies awarded to her as part of equitable distribution and a dramatic increase in Rick's income from new employment. The trial court held an evidentiary hearing over five days in 2004 and made rulings on Cheryl's motion. Cheryl appealed.

In a detailed unpublished opinion, this court affirmed the conclusion of the trial court that changed circumstances entitled Cheryl to adjustment of support payments, but it reversed the amounts of child support and alimony awarded and remanded to the trial court for further findings and analysis in accordance with the discussion contained in the opinion. Bennett v. Bennett, No. A-0939-04T1 (App. Div. June 14, 2006).

On remand, a different trial judge reviewed the lengthy record of the 2004 plenary hearing, the documentary evidence, and the parties' proposed findings of fact and conclusions of law based on the existing record. The judge issued a comprehensive, written opinion addressing the several issues presented on remand. The accompanying order of the court (1) vacated Cheryl's obligation to pay a credit of $104,000 to Rick on equitable distribution; (2) increased Rick's alimony obligation from $55,000 to $100,000 per year; (3) determined that Rick would not pay any additional rehabilitative alimony; (4) imputed to Cheryl annual income of $39,561; (5) required Rick to pay guidelines-based child support of $606 per week; and (6) required Rick to pay additional child support above the guidelines of $283 per week, for a total of $889 per week in child support. On this appeal, Rick challenges only the increases in his child support and alimony obligations.

Generally, trial courts are permitted to exercise discretion in awarding financial support in a matrimonial action. Pascale v. Pascale, 140 N.J. 583, 594, (1995). "If consistent with the law, such an award 'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)). "'[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence . . . ' in the record." Id. at 316 (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Thus, the standard of review from the trial court's support rulings is deferential on factual determinations but plenary on application of the law.

Here, the trial court's opinion shows careful attention to relevant facts and to the statutory factors listed in N.J.S.A. 2A:34-23 that must be considered in determining orders of support. But the opinion uses a legally incorrect method to determine the amount of child support that Rick must pay. It does not follow the instructions for making a child support calculation for high income earners contained in the Rules Governing the Courts of the State of New Jersey ("Court Rules"). Also, it double-counts Rick's responsibility for certain specified expenses of the children.

The trial court found that Rick's annual income in 2004 was $374,600. It imputed income of $39,561 to Cheryl based on her education, health, prior work experience, recent job training, and ability to find employment after time away from the job market. These findings are supported by substantial credible evidence.

The combined parental income of more than $400,000 is greater than the income limits contained in the child support guidelines. Where the combined parental net income exceeds $187,200 annually, or $3,600 per week, the Court Rules provide that: the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income (i.e., income in excess of $187,200) and the factors specified in N.J.S.A. 2A:34-23. Thus, the maximum guidelines award in Appendix IX-F represents the minimum award for families with net incomes of more than $187,200 per year. [Child Support Guidelines, Pressler, Current New Jersey Court Rules, Appendix IX-A to R. 5:6A at 2334 (2009).]

The parties agree that Rick's child support obligation should be calculated from the maximum guidelines-based amount plus a discretionary amount based on the factors in N.J.S.A. 2A:34-23, and as further explained in Caplan v. Caplan, 182 N.J. 250, 266, 271 (2005). The guidelines-based amount, however, must be allocated between the two parents. The trial court erroneously required that Rick pay the full $606 per week maximum in guidelines-based child support.

"That both parents share the obligation to support their children . . . is well established in this state." Pascale, supra, 140 N.J. at 593. "Child support is the right of the child and the responsibility of both parents." Ibid. The basic child support amounts contained in Appendix IX-F "represent the average amount that intact families spend on their children [including] the child's share of expenses for housing, food, clothing, transportation, entertainment, unreimbursed health care up ...


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