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Cadavid v. Nieto

April 13, 2009

OLGA CADAVID, F/K/A OLGA NIETO, PLAINTIFF-RESPONDENT,
v.
ZOILO NIETO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2182-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2009

Before Judges Carchman and Sabatino.

Defendant Zoilo Nieto ("the father") appeals a March 25, 2008 order of the Family Part requiring him to pay plaintiff Olga Cadavid, formerly known as Olga Nieto ("the mother"), the sum of $8,839 in monthly child support for the parties' three minor children. We affirm that order, with modifications that are mainly arithmetic in nature.

The parties are both immigrants from Colombia. The father, who came to the United States in 1982, is the successful founder and president of eight schools that teach English as a second language. The schools are located in New Jersey, New York, Florida, and Canada. Through limited liability companies unrelated to the schools, the father also owns interests in several commercial properties in New Jersey and Florida. In a June 2007 loan application, the father valued his various business interests at $8 million and the fair market value of his real estate holdings at $5.2 million. The Family Part calculated the father's annual income for purposes of child support at approximately $2 million annually, a figure which is uncontested on appeal.

The father presently owns four residences: a four-bedroom home in Demarest; a two-bedroom condominium in Edgewater; the former marital home in Ridgefield; and a condominium in Miami Beach, Florida. The Demarest home, where the father currently resides and where he enjoys parenting time with the children, includes seven bathrooms, a $15,000 tree house, and a private movie theater.

The mother emigrated to the United States in January 1997. Soon thereafter, she married the father on March 25, 1997. A full-time homemaker, the mother obtained an associate's degree from Bergen County Community College in 2006, where she majored in early childhood development.

The parties are the parents of three sons: an eldest son born in January 1998; a middle son born in February 1999; and a youngest son, who was born in May 2001 after the parties had already divorced. The parties have no children from other relationships.

The parties were divorced on May 10, 2000, entering into a Property Settlement Agreement ("PSA"). Among other things, the PSA provided that the mother would have primary residential custody of the three children, with substantial parenting time awarded to the father. The PSA also provided that the father would pay the mother $100,000 annually in combined support. That figure included $20,000 in limited-duration alimony payable for seven years; child support; certain educational expenses of the mother; and various roof expenses related to the marital home, where the mother and the sons then continued to reside. The father also paid for medical insurance, private school tuition, and other expenses of the children. After the third son was born, the parties amended the PSA in December 2003 that, among other things, increased the monthly child support amount by $300.

Prior to the scheduled May 2007 expiration of her alimony, the mother filed in March 2007, a motion to modify child support. As part of her motion papers, the mother stated her intention to move with the three sons out of the marital home in Ridgefield into a house in Warren owned by her present fiancé. The father unsuccessfully opposed the sons' relocation in proceedings in the Family Part and an ensuing emergent application to this court.*fn1 Consequently, the mother and the three sons moved to Warren in August 2007, where they continue to reside in a four-bedroom home along with the mother's fiancé and his own teenage son.

Meanwhile, the parties' child support dispute was litigated in the Family Part. The court conducted five intermittent days of plenary hearings in November 2007, December 2007, and January 2008. The court heard the testimony of both parties and from expert accountants for each side. The court also considered numerous financial exhibits, including the parties' respective case information statements ("CIS forms") listing their financial resources and expenses.

After considering the proofs, the motion judge rendered a detailed oral decision on March 25, 2008. In her decision, the judge estimated the husband's annual income at about $2 million. Given that high level of income, the judge recognized that the case was outside of the published child support guidelines in Appendix IX-A of the Court Rules. The judge declined to impute any net earnings to the mother, in light of the mother's limited earnings capacity and her homemaker responsibilities as the parent of primary residence. The judge acknowledged the father's substantial parenting time, which is about thirty-six percent of the children's overnights. The judge also made numerous discrete reductions to the itemized personal living expenses for the children presented on Schedule C of the mother's CIS form, decreasing the total of those claimed sums by more than half.

Based upon that analysis, the trial court awarded the mother $8,839 per month in child support for the three children. The court also required the father to pay for the boys' summer camp costs and counseling expenses, but rejected the mother's request that he also pay for their other extracurricular expenses. The court further ordered the father to obtain a $2 million life insurance policy for the benefit of the children, and fixed arrears in the amount of $7,716. Lastly, the court ...


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