April 14, 2010
OCBSS O/B/O ROBERT GLAB, PLAINTIFF-RESPONDENT,
DANA MANUEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FD-15-0899-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 22, 2010
Before Judges Baxter and Alvarez.
Defendant Dana Manuel appeals from two orders issued by the Family Part. The first, issued on September 2, 2008, requires her to pay child support in the amount of $250 per week for her daughter, who will be seventeen years old in July. She also appeals from a March 13, 2009 order that: 1) denied her motion for reconsideration of the September 2, 2008 child support order; 2) denied her motion to change residential custody of her daughter from the child's father, plaintiff Robert Glab, to herself; and 3) established a parenting time schedule that she maintains is extremely limited and therefore not in her daughter's best interests.
As to the September 2, 2008 order, we agree with defendant's claim that the judge made errors in calculating the award, and that those errors are sufficiently significant to warrant recalculation of the child support order. We therefore remand for that purpose. As to the March 13, 2009 order, although we affirm the denial of defendant's motion to change residential custody, we agree with her contention that the parenting time schedule is unreasonable. On remand, the judge is directed to establish a more generous schedule for defendant's exercise of her parenting time.
The parties' daughter was born in 1993. When she was four years old, each party filed a motion for custody. A court- ordered custody evaluation performed by a probation officer concluded that although the child had been spending as many as seven days a week in the father's custody, the living situation there was far from optimal, as the child did not have her own room and slept in the same bed as her father. For that reason, the evaluator recommended that "residential custody be vested with defendant, as she [could] provide the safest and most appropriate physical environment." The evaluator recommended "liberal" parenting time for plaintiff due to the "great mutual affection" between the child and her father.
Because the parties advised the judge that they were on the verge of settling the custody and child support issues, the judge did not issue an order of custody. Unfortunately, the parties never submitted a consent order or formalized their purported 1998 custody and parenting time arrangement. As we shall discuss, each party claims to have been the residential parent for the ten-year period between 1998 and the initiation of the current proceedings in 2008.
On January 17, 2008, plaintiff applied for welfare benefits from the Ocean County Board of Social Services (OCBSS) under the Temporary Assistance for Needy Families (TANF) program. His application included a claim for financial support of his daughter and listed defendant as an "absent parent." Plaintiff did not provide defendant's address or her employer to OCBSS, even though her place of employment and home address had not changed.
On April 15, 2008, OCBSS instituted proceedings on behalf of plaintiff seeking child support from defendant. At the ensuing hearing before a hearing officer in July 2008, defendant acknowledged that the parties' daughter typically spent four days per week with her father. She also asserted that plaintiff should not be receiving welfare benefits for the child because she, defendant, had been the child's sole support, and the child had been spending time at plaintiff's residence only because his home was closer to the child's school. Although the parties both reside in the same municipality, their homes are approximately seven miles apart and are served by two different high schools.
At the July 15, 2008 child support hearing, defendant testified that plaintiff abused drugs. When asked by the hearing officer why she had not removed her child from plaintiff's home if she had those concerns, plaintiff responded that her daughter had asked her not to do so. The proceedings were adjourned until September 2, 2008 to enable OCBSS to conduct a further investigation of the parties' finances.
When the proceedings resumed, defendant again testified that her daughter had been living with plaintiff for approximately two years. Defendant agreed that her gross income was $1,938 per week. As a result, the hearing officer entered an order on September 2, 2008 requiring defendant to pay $250 per week in child support. Defendant signed the order, stating that she understood its provisions and did not wish to appeal to the Superior Court.
Nonetheless, on September 19, 2008, defendant filed a motion for reconsideration of the September 2, 2008 child support order. Shortly thereafter, plaintiff filed a motion for custody of the parties' daughter. On November 3, 2008, defendant cross-moved for residential custody, and sought the establishment of a parenting time schedule for plaintiff.
At the motion hearing, because the judge was unable to determine which of the two parties was actually the primary residential parent, the judge scheduled a plenary hearing and took testimony on December 12, 2008. Defendant testified that she owned her own home and that the parties' daughter had her own room. She also stated that she had always been the child's "sole supporter," paying for clothing, food, shelter, medical and school expenses, and that plaintiff had never contributed toward any of the child's expenses. Defendant also explained her daughter's living arrangements, stating:
Well, [the child] usually stayed [at plaintiff's house] -- she stayed there many a night because of the fact that she was going to school in the morning. Her school starts at 7:00 a.m. and she would be at the bus by 6:00 in the morning. So it was -- it was easier for her to spend the nights there in order that she could go to school in the high school that she wanted to continue to go to school at. So, several nights during the week she would stay there.
Defendant also testified that she believed the child's paternal grandmother, Phyllis Glab, was the person actually caring for the parties' daughter while at plaintiff's home. Defendant asserted that without his mother's help, plaintiff would be unable to care for the parties' daughter because he "has an ongoing drug addiction and he's been incarcerated." Defendant also maintained that she had added the parties' daughter to her health insurance and that the coverage would begin on January 1, 2009.
Plaintiff also testified at the plenary hearing. He acknowledged that he had been incarcerated for approximately seventy days beginning in April 2008 as a result of a violation of probation involving testing positive for drugs. Plaintiff also acknowledged that he had been suffering from a serious drug and alcohol addiction for over thirty years, and that it was likely he had been under the influence of drugs while his daughter was with him. He insisted, however, that he had been clean for a year.
Plaintiff also claimed that he had been paying child support to defendant until 1998, but had stopped paying when defendant "stopped picking [their daughter] up" for visitation. He asserted that he had no choice other than seeking financial assistance from OCBSS because he had not been working and needed medical coverage for the parties' daughter. He maintained that his daughter had been living with him since she was a child, stating:
She's been at my house since she's been two, your Honor. The mother has been there, but not enough. She begins to pick her up and then just for months we don't see her and this has been going on for years. I'm not saying [defendant's] a bad mother. She's just never there.
He insisted that his daughter has her own bedroom at his house and that he had purchased clothing and a laptop for her in the past. He acknowledged that his mother had been providing him with some financial support for his daughter and had purchased various items for her.
As to his income, plaintiff conceded he has never filed federal or state income tax returns. Nonetheless, he claimed that he maintains his own business selling automobiles, and admitted that he has no reason for not maintaining a regular job with a steady income.
Because plaintiff's mother was present in the courtroom, and because the judge was aware that she lived in the house with plaintiff and the child, the court called her as a witness. The paternal grandmother testified that everyone in the household, including plaintiff and plaintiff's uncle, contributed to the expenses of running the household. She insisted that plaintiff was the child's primary disciplinarian, but acknowledged that she had cared for her granddaughter while plaintiff was incarcerated. When asked by the judge, she agreed that defendant had provided financial support to the child in the past.
On December 12, 2008, the judge issued an interim order assigning joint legal custody to both parents, with plaintiff and his mother to serve as temporary residential custodians for the child pending the conclusion of the plenary hearing. In particular, the December 12, 2008 order specified that "[p]rimary residential custody will be vested in the plaintiff/father and Phyllis Glab, the paternal grandmother."
The proceedings continued on January 20, 2009, at which time the court conducted an in-camera interview with the parties' daughter, who was then fifteen years old. She stated that she had lived with her father as long as she could remember, and described the short period of time living with her mother in September 2008, stating:
It was, well, I really didn't do a lot. She like - she would like discriminate [sic] me for being at my dad's house when I was there. She'd tell me that... oh, you shouldn't be there, you don't live there anymore. Your dad doesn't have anything to say about what you do anymore. And then when she'd come pick me up, she'd just drop me off at home and leave to go out with her boyfriend or whatever..... [Before September 2008,] [s]he would only come by [on] holidays or like my birthday and stuff like that and like maybe a rare occasion she'd call me and... want to do something, but not really a lot. Like sometimes a month at a time she wouldn't talk to me or call me or anything.
The child also maintained that her mother would sometimes drink and "verbally abuse" her. When asked where she would prefer to live, she explained that she was happy living with her father, that her father and her grandmother paid for her routine expenses, and that she wished she "could just stay with [plaintiff]."
On March 13, 2009, the judge entered an order denying defendant's motion for reconsideration of the September 2008 child support order, noting that the provisions of that order "will remain in full force and effect." The judge also denied defendant's motion for reconsideration of his earlier order granting joint residential custody of the parties' daughter to plaintiff and his mother. Last, the order established a parenting time schedule for defendant, which afforded her parenting time on the first and third Wednesday of every month from 5:30 p.m. until 9:00 p.m., and on the second and fourth weekend of every month from noon on Saturday through 9:00 p.m. on Sunday. The judge accompanied his March 13, 2009 order with a four-page single-spaced statement of reasons, in which he stated:
The court finds that, with the exception of a one month period in September 2008,... plaintiff has been [the child's] primary residential custodian.....
Defendant has conceded that [the child] resides with [plaintiff] and fails to make any showing that the [child support] recommendations of the HO [child support hearing officer]... were incorrect.
As to her motion for custody, defendant has made no showing that a change in custody would be in [the child's] best interests.... Moreover, this court finds that after considering all of the evidence, including the child's wishes, that [her] best interests require that she be maintained in the current custodial arrangement with her father as the primary residential custodian.
On appeal, defendant maintains:
I. THE COURT ERRED IN AWARDING RESIDENTIAL CUSTODY TO THE PLAINTIFF AND ITS DETERMINATION THAT SUCH LIES IN THE BEST INTEREST OF THE CHILD WAS WITHOUT ANY LEGAL OR FACTUAL BASIS AND THE COURT'S ORDER MUST BE REVERSED.
II. THE COURT'S ENTRY OF AN OVERLY RESTRICTIVE PARENTING TIME SCHEDULE WHICH WAS BASED UPON THE COURT'S SIMPLY ACCEPTING THE PLAINTIFF'S SUGGESTED SCHEDULE WITHOUT ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW SET FORTH ON THE RECORD, WAS ERRONEOUS AND SHOULD BE VACATED.
III. THE COURT ERRED IN FAILING TO REQUIRE THE PLAINTIFF TO SUBMIT TO ANY TYPE OF DRUG TESTING DESPITE THE PLAINTIFF'S ADMITTED LONG TERM HISTORY OF DRUG ABUSE.
IV. THE COURT ERRED IN FAILING TO ORDER A CUSTODY INVESTIGATION OF BOTH PARTIES AND ADDITIONAL PERIODIC CUSTODY REPORTS.
V. THE COURT ERRED IN FAILING TO ORDER COUNSELING FOR THE DEFENDANT AND [THE CHILD].
VI. THE COURT ERRED WHEN CALCULATING CHILD SUPPORT ON BEHALF OF THE PARTIES['] MINOR CHILD.
Points I, III and IV all address the judge's decision to award residential custody of the child to plaintiff and his mother, Phyllis Glab. Consequently, we consider those three points in tandem.
The principles governing child custody decisions are well-understood. The party seeking a modification of the existing custody arrangement must demonstrate changed circumstances that affect the best interests of the child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). In determining the best interests of the child, the court is obliged to consider the statutory factors established by N.J.S.A. 9:2-4(c), which provides: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child. [N.J.S.A. 9:2-4(c).]
The best interests of the child standard also applies to decisions regarding parenting time and visitation. Sacharow v. Sacharow, 177 N.J. 62, 80 (2003) (holding that in such cases, "the sole benchmark is the best interests of the child"); Wilke v. Culp, 196 N.J. Super. 487, 496-97 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985).
A child's preference is one consideration in the best interest analysis, but it is not dispositive. Wilke, supra, 196 N.J. Super. at 498. Further, "[a]lthough a joint legal custodial relationship among parents is the preferred arrangement since it is likely to foster the best interests of the child in the proper case, the decision concerning the type of custody arrangement is left to the sound discretion of the trial court." Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (internal quotations, citations and alterations omitted).
Because "matrimonial courts possess special expertise in the field of domestic relations," Cesare v. Cesare, 154 N.J. 394, 412 (1998), the scope of appellate review of a trial court's findings of fact is limited. Id. at 411. When these findings of fact are supported by "adequate, substantial, [and] credible evidence[,]" they will be "binding on appeal." Id. at 411-12.
Here, we are satisfied that there was ample evidence in the record to support the trial judge's finding that it was in the child's best interests to award primary residential custody to plaintiff and his mother. The judge conducted a plenary hearing during which he heard testimony from both parties, from plaintiff's mother and from the child. While we use the term "the child," we use that description advisedly, as the "child" in question was then fifteen years old, and is now nearly seventeen years of age. Thus, in light of her age, her preference to remain with her father is entitled to be weighed fairly heavily. Wilke, supra, 196 N.J. Super. at 498.
The judge also considered evidence in the record demonstrating that the child had lived with her father for almost all of her life and was happy, well cared for, and well provided for in his home. The judge's statement of reasons includes a finding that the child has been receiving grades of "mostly A's and B's" during the time she has been living with her father. Furthermore, while defendant testified that she has steady employment and owns her own home, other testimony established that her contact with her daughter was irregular, her daughter had been unhappy living with her and that the daughter had spent the majority of her life in plaintiff's home. In light of the evidence before him, the judge was able to assess the credibility of each party and made a determination that it would be within the child's best interests to continue living with her father.
At appellate oral argument, defendant stressed that the judge erred when he awarded primary residential custody to plaintiff because, in reality, caring for the parties' daughter was a joint effort of plaintiff and his mother. Defendant therefore argued that the award of custody solely to plaintiff represented a misapplication of the judge's discretion, even if, for the sake of discussion, it was true that the child's best interests would be advanced by continuing to live with her father.
Defendant's characterization of the terms of the December 12, 2008 order is incorrect because, as we have already noted, that order specifically provides that "primary residential custody will be vested in the plaintiff/father and Phyllis Glab, the paternal grandmother." We recognize that the December 12, 2008 order was, by its terms, only an "interim order" that was entered "pending completion of the plenary hearing on custody." However, the March 13, 2009 final order from which defendant appeals left standing the provisions of the December 12, 2008 order, as the judge denied defendant's motion for reconsideration. Thus, custody was not awarded solely to plaintiff; it was awarded jointly to plaintiff and his mother. Accordingly, one of defendant's principal arguments is belied by the express terms of the order in question because residential custody was awarded to plaintiff and his mother, not solely to plaintiff.
While we recognize that plaintiff admitted to a drug problem, and conceded that he had been incarcerated in June 2008 on a violation of probation that resulted from testing positive for drugs, the judge was entitled to assess plaintiff's credibility. Cesare, supra, 154 N.J. at 412. The judge was entitled therefore to accept plaintiff's assertion that his substance abuse problem had been under control for over a year. Because the judge's findings of fact are based on substantial and credible evidence in the record, we have no occasion to interfere with the judge's findings of fact. Ibid.
We reject defendant's argument that no deference should be paid to the trial judge's credibility findings because he made none. To support this claim, defendant relies upon our decision in Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000). Yueh is inapposite here, because in that case the judge never conducted a plenary hearing and never heard the testimony of witnesses. Here, the judge conducted a thorough plenary hearing. The judge's acceptance of plaintiff's credibility is evident from the judge's findings. In light of the judge's findings, it was not necessary for the judge to expressly state that he found plaintiff's testimony credible, as such finding is implicit in the judge's conclusions. We reject defendant's reliance on Yueh for those reasons. Thus, as the judge's decision to maintain residential custody with plaintiff is well-supported by the evidence in the record, we have no occasion to disturb the judge's conclusion. Levine v. Bacon, 152 N.J. 436, 442 (1998).
We likewise reject defendant's contention that the judge erred by not requiring plaintiff to submit to a urine drug screen. As we have already discussed, the judge was entitled to accept plaintiff's assertion that he had been drug-free for a year. Defendant has cited no authority in support of her contention that under such circumstances a drug test was required. Her arguments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(A) and (E).
Last, we consider defendant's claim that the judge erred by failing to order a custody investigation of both parties. As is evident from the express terms of Rule 5:8-1, "the court may... require an investigation to be made... of the character and witness of the parties...." (Emphasis added). Thus, the power to order, or not order, an investigation is "discretionary with the court in order to permit it more effectively employ its limited support resources by eliminating Family Division investigations where the custody dispute is neither genuine or substantial." Pressler, Current N.J. Court Rules, comment 1.1.1 on R. 5:8-1 (2010).
Here, it was not an abuse of discretion for the trial judge to refrain from ordering a custody investigation. The judge had the benefit of a plenary hearing in which he heard testimony from all parties as to the child's living situations in both plaintiff's and defendant's homes. He was able to make credibility determinations and findings of fact, and to ultimately determine that plaintiff's home was acceptable and that it was in the child's best interests to continue living with her paternal grandmother and her father, and to enjoy parenting time with her mother.
Thus, as this was a matter well within the "sound discretion of the trial court," Nufrio, supra, 341 N.J. Super. at 555, we decline to interfere with the judge's exercise of discretion when he decided that a custody investigation was unnecessary. We thus reject the claims defendant advances in Points I, III and IV. Her remaining claim -- that the judge erred by refusing to order counseling for the daughter and herself -- lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We turn to Point II, in which defendant argues that the parenting time schedule the judge established was so stingy as to interfere with her ability to maintain a stable relationship with her daughter and her daughter's ability to maintain a stable relationship with her mother. Simply put, defendant maintains that the parenting time schedule was so restrictive as to not be in the child's best interests. Defendant also asserts that the judge issued the parenting time schedule without making any findings of fact, and consequently we should afford no deference to the judge's determination of the parenting time schedule.
We begin our review by recognizing that the law favors parenting time arrangements that promote the best interests of the child, and that afford liberal parenting time so as to enable the "children of separated parents [to] be imbued with love and respect for both parents...." Wilke, supra, 196 N.J. Super. at 496.
Applying that standard, we agree with defendant's contention that the parenting time schedule established by the judge was unnecessarily restrictive. As we understand the record, the parties live only six or seven miles from each other, and the judge has stated no reason for affording so little time for interaction between mother and daughter. As we have noted, in any given month, defendant is afforded parenting time on a total of two Wednesday evenings, portions of two Saturdays and portions of two Sundays. In a month's time, such a schedule, in the absence of any statement of reasons supporting such limited parenting time, strikes us as at odds with the liberal parenting time that Wilke demands.
Moreover, we were advised at appellate oral argument that the judge accepted plaintiff's proposed parenting time schedule without waiting for defendant to submit hers. Apparently, the parties advised the judge that they were nearing an agreement on the parenting time schedule and would soon be submitting a consent order; however, before such an agreement could be reached, plaintiff unilaterally submitted his own schedule to the judge, which the judge accepted without waiting for defendant to submit her proposal.
The plan the judge ultimately adopted mirrored plaintiff's proposal in all respects, with no modifications. While our review is somewhat hampered by plaintiff's failure to submit a brief, we are left with a clear sense that the parenting time schedule the judge established is not entitled to our deference. It is unnecessarily restrictive, with no explanation or justification for the extremely limited schedule that is provided.
We also note that in establishing a parenting time schedule, the judge must be guided by the applicable statutory test, which is the best interests of the child, as set forth in N.J.S.A. 9:2-4(c). Sacharow, supra, 177 N.J. at 80. Here, the judge made no findings to support the parenting time schedule he imposed. Consequently, in light of Sacharow, we are not bound by his parenting time schedule. We thus vacate the schedule and remand for further proceedings during which each party shall be afforded the opportunity to submit a proposed parenting time plan to the court, in accordance with the provisions of Rule 5:8-5, after which the judge shall issue an amended and expanded parenting time schedule. We thus agree with the claim defendant advances in Point II.
Last, we address the claim defendant advances in Point VI, in which she maintains that the judge erred when calculating child support. She alleges the court erred in not imputing income to plaintiff, in failing to account for her cost in obtaining health insurance for the parties' child, in failing to require plaintiff to make contributions to unreimbursed health care expenses, in using the sole-parenting worksheet for calculating child support, and in failing to credit her for the period of plaintiff's incarceration.
We turn first to defendant's claim that the judge erred by failing to impute income to plaintiff. We review determinations of child support for an abuse of discretion. Dunne v. Dunne, 209 N.J. Super. 559, 571 (App. Div. 1986). When a party appeals a decision to impute or not impute income, we will not disturb the result unless "the underlying findings are inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004).
However, when a parent is unemployed or under-employed without just cause, income should be imputed, to "promote a fair and just allocation of the child support responsibility of [both] parents." Caplan v. Caplan, 182 N.J. 250, 268 (2005). When establishing child support orders, the court is obliged to consider the "'potential earning capacity of an individual, not his or her actual income[.]'" Ibid. (quoting Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999)).
Here, the judge erred by failing to impute income to plaintiff. Plaintiff's testimony indicated both that he was earning money through the selling of automobiles and that he had no good reason for not obtaining a more regularly paying job. Although the judge did not have evidence of what plaintiff had earned in the past because plaintiff has never filed a tax return, the judge was nonetheless obliged to include some computation of plaintiff's income, either actual or imputed, in calculating defendant's child support obligation. To not include such a figure has the tendency to subvert the "fair and just allocation of... child support" that Caplan requires. Id. at 268. That reason, standing alone, is a sufficient basis for reversing the child support order and remanding for a redetermination of the amount of child support defendant is obliged to pay.
During the remand, the judge should also consider the amount of money expended by defendant in obtaining health insurance for the child. "The parent's marginal cost of adding a child to a health insurance policy shall be added to the basic child support award and deducted from the paying parent's income share of the total child support award...." Pressler, Current N.J. Court Rules, Appendix IX-A, paragraph 26 (2010). Thus, on remand the judge should make an adjustment to the child support defendant is ordered to pay to take the cost of health insurance for the child into consideration.
However, we reject defendant's additional argument that the judge erred by using the Sole Parenting Worksheet when calculating her child support obligation, rather than using Shared Parenting Worksheet. The Shared Parenting Worksheet is to be used when the parent of alternate residence "has, or is expected to have, the child for the substantial equivalent of two or more overnights per week" over the course of a year. Such is not the case here, as defendant exercises parenting time with the child not two overnights per week, but instead two overnights every other week. Under such circumstances, the use of the Sole Parenting Worksheet was appropriate. Id. at paragraph 14(c).
We also reject defendant's claim that she was entitled to a credit for the period of time in which plaintiff was incarcerated. As is evident from the conclusions we have reached in this opinion, the child is cared for not only by plaintiff, but also by his mother, who lives in the same household as plaintiff. Under those circumstances, the child support defendant paid while plaintiff was incarcerated was used by the paternal grandmother for the support of the child. Under those circumstances, no credit was warranted.
Thus, although we have rejected some the claims defendant has advanced concerning the calculation of her child support obligation, we do agree with her claim that the judge erred by not imputing income to plaintiff and by not taking into consideration the monthly cost defendant has incurred in providing health insurance for the parties' daughter. We thus reverse the existing child support order, and remand for recalculation of the child support award in accordance with the principles we have outlined.
Affirmed in part, reversed in part and remanded.