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Sahni v. Khanna


February 9, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-10-03.

Per curiam.


Argued January 20, 2010

Before Judges Parrillo and Lihotz.

Plaintiff Arti Sahni appeals from two post-judgment Family Part orders. First, she challenges paragraph 7 of a June 5, 2009 order, which denied her request to increase the outstanding child support arrearages owed by her former husband, defendant Rajiv Khanna, as reported by the Mercer County Probation Department (MCPD) following an audit. Second, she seeks reversal of paragraph 1 of a June 30, 2009 order, which denied her request to relocate the parties' children to New Delhi, India.

Following our review of the arguments presented on appeal, in light of the record and the applicable law, we affirm that provision of the June 30, 2009 order denying plaintiff's request for relocation. However, we are constrained to remand this matter to the trial court for additional consideration of the accuracy of the probation audit of defendant's child support account. As discussed in more detail below, plaintiff's proofs require correction of two inadvertent errors in prior orders and that the audit again be performed. The final contention or error raised by plaintiff in a third order is rejected.

We first examine plaintiff's relocation request, initially made in April 2008. After reviewing the parties' written submission presented during various hearings, a court interview of the children, R. 5:8-6, and the requirement of an expert evaluation, Judge Fleming rendered a thorough written opinion attached to the June 30, 2009 order. On appeal, plaintiff challenges the credibility and other factual findings made by the court in support of its conclusions that plaintiff failed to satisfactorily prove: (1) she had a good faith reason for the proposed move, and (2) the proposed move was not inimical to the children's interests. Baures v. Lewis, 167 N.J. 91, 116 (2001).

In our review, we defer to the trial court's findings, which are "supported by adequate, substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394, 412 (1998); see also Beck v. Beck, 86 N.J. 480, 496 (1981) (stating trial court findings premised on sufficient credible evidence present in the record will not be disturbed); DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976) (same). Accordingly, we reject plaintiff's claims of error and affirm substantially for the reasons set forth in Judge Fleming's opinion. R. 2:11-3(e)(1)(A).

We turn to plaintiff's contention that errors in three prior child support orders have gone uncorrected, resulting in the need for an adjustment in the arrearage amount reported in the MCPD audit. On June 5, 2009, the court denied plaintiff's request for adjustment after reviewing a previously ordered audit of the account.

The parties were divorced in Somerset County. Child support and alimony were to be paid through Middlesex County, as defendant's county of residence. Plaintiff claimed, despite ordered corrections, probation records remained inaccurate and were never modified. The court had ordered an audit of defendant's probation account, which was completed for the period June 24, 2004 to April 2, 2008. Upon its receipt, plaintiff was required to specifically identify claimed errors.

In an April 21, 2008 letter addressed to the court, plaintiff raised three issues, two of which had previously been brought to the court's attention for correction. First, she cited an order dated August 23, 2005, which fixed the amount of existing child support arrears but mistakenly reflected the date as June 24, 2004 rather than 2005. Second, she suggests an order entered September 7, 2005, incorrectly stated child support was to be paid bi-weekly rather than weekly. Finally, she included a claim not previously presented, regarding a February 15, 2006 order, which recited child support as $315 per week rather than the amount computed on the child support guidelines worksheet of $317. We will examine these claims advanced by plaintiff.

The August 23, 2005 order fixed arrears of $1202.69 as of June 24, 2004. Plaintiff claims the actual arrearage as of August 2004 was $3985.99 and the order meant to fix arrears as of June 24, 2005. Therefore, she maintains the error eliminated $2783.99 in alimony and child support due to her.

The record presented by the parties is muddled. What we can discern is that a consent order, executed by both parties on June 24, 2005, stated "[a]s of June 24, 2005 . . . the account shall reflect an arrears balance of $2530.62." Therefore, notwithstanding any claims by plaintiff that the balance in 2004 was higher, she agreed to the amount outstanding on June 24, 2005.

Shortly thereafter, defendant moved to modify that sum. First, a calculation error was discovered and, second, defendant's income tax refund was intercepted. The statement of reasons attached to the August 23, 2005 order found the amount of the tax refund applied was $1629. Plaintiff does not dispute she received this sum. The court then recalculated arrearages concluding defendant owed $1202, as of June 24, 2005.*fn1

Unfortunately, the order recited the date as June 24, 2004. Therefore, the MCPD audit started its calculation as of June 24, 2004 with an arrearage of $1202.

We believe plaintiff's proofs substantiate an error in the probation record, which must be corrected. The audit concluded defendant's account had a $2090.12 credit as of April 2, 2008. Based upon this error, the accuracy of the audit conclusion is called into question.

Next, we examine plaintiff's claim that the September 7, 2005 order incorrectly stated child support was $310 bi-weekly rather than weekly, retroactive to May 11, 2005. The audit report computed defendant's obligation for the eighteen-week period of May 11, 2005 to September 6, 2005 as $2790 or $310 biweekly. If plaintiff is correct, an additional $2790 would be due.

Plaintiff attempted to correct this error during a hearing held on October 28, 2005. The transcript from that proceeding reveals the court and both parties acknowledged the error. Defendant explicitly states he should be paying support of $310 on a weekly basis. Further support for plaintiff's position is that at all times prior to and since this period, defendant paid support that approximated $315 each week.

Unfortunately, we are not provided with the order entered following the October 28, 2005 hearing. If an order was entered, it was not considered by the MCPD in its audit. We are satisfied that the account records are incorrect and that support for the period May 11, 2005 to September 6, 2005 must be corrected to reflect a weekly support obligation of $310.

As to the alleged two dollar per week difference between the February 15, 2006 ordered support and the guidelines calculation attached to the order, we reject plaintiff's argument. Paragraph 5 of the identified order denied plaintiff's request to recalculate child support. In paragraph 7, the court ordered a one dollar adjustment, from $314 to $315 per week, effective December 9, 2005, based upon the "correct parenting time."

From the record on appeal, which includes the order, the court's statement of reasons, and a guidelines worksheet prepared by the judge's law clerk, plaintiff's suggestion that the worksheet was related to or reflective of the adjustment made in paragraph 7, rather than the denial of the request for modification of support addressed in paragraph 5, cannot be sustained.

During argument, the parties discussed an issue regarding the amount of their respective obligations for payment of the children's dental costs. We decline to address this question as it was not raised in the notice of appeal.

In summation, we affirm the June 30, 2009 order denying plaintiff's request for relocation. We vacate that provision of the June 5, 2009 order denying correction of the MCPD audit and remand for further proceedings. The August 23, 2005 order, fixing arrears of $1202.69 as of June 24, 2004, must be amended to show that sum is the arrears amount as of June 24, 2005. Also, support for the period of May 11, 2005 to September 6, 2005 must be amended to establish an obligation of $310 per week. With these two corrections, the MCPD must recalculate the status of defendant's child support account, providing an amended audit report to the parties and the court. As needed, the court may enter necessary orders consistent with our determination. We do not retain jurisdiction.

Affirmed in part and remanded in part.

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