August 5, 2010
LAURA LANDRE, PLAINTIFF-APPELLANT,
MICHAEL DODD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-144-09B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 23, 2010
Before Judges Wefing, Grall and LeWinn.
The parties are the parents of a son born August 10, 2007; each also has a child from other relationships. Within one year of their child's birth, the parties separated and custody proceedings ensued in the Family Part. On August 8, 2008, the trial judge entered an order providing that the parties would share joint legal custody of the child, with plaintiff serving as the primary residential custodian; defendant was afforded parenting time on alternate weekends from 2:30 p.m. Friday to 5:00 p.m. Sunday, from 9:00 a.m. to 5:00 p.m. Sunday on the other weekends, and overnight from 2:30 p.m. Tuesday to 3:30 p.m. Wednesday. The determination of child support was deferred pending submission of financial documentation from both parties.
Plaintiff moved for reconsideration of the parenting time schedule, claiming that the judge erred in granting defendant parenting time every Sunday because it interfered with plaintiff's desire to attend church services and Sunday school with the child. She also sought to change the Tuesday parenting time from overnight to ending at 8:00 p.m.
Plaintiff also submitted a proposed holiday visitation schedule, providing that, among other things, New Year's Eve and New Year's Day would be alternated. Defendant filed a cross-motion opposing plaintiff's request to modify parenting time; he essentially agreed with plaintiff's proposed holiday visitation schedule but sought to change "which party has even years versus which party gets odd years for the major holidays." Defendant also addressed child support and appended a shared parenting child support guidelines worksheet which calculated his obligation at $116 per week.
Plaintiff filed a reply certification protesting defendant's position that child support should be calculated pursuant to a shared parenting worksheet, since defendant had failed to show that he maintained "separate living accommodations for the child." Specifically, plaintiff certified that defendant lived in a one-bedroom apartment and not only did not maintain a separate bedroom for their child, but also had overnight parenting time with his other child. Therefore, she asserted, defendant did not incur any additional expense in having their child overnight.
The judge heard oral argument on October 20, 2008, and entered an order modifying defendant's parenting time to afford plaintiff nine Sundays a year "at her discretion"; setting a holiday parenting time schedule; and setting defendant's child support obligation at $168 per week pursuant to a shared parenting worksheet. This worksheet also afforded defendant a credit of twenty-two dollars per week for his cost of providing health insurance for the parties' child.
Thereafter, the parties engaged in a series of correspondence with the judge, defendant seeking credit for a $350 child support obligation for his other child, and plaintiff continuing to protest use of the shared parenting worksheet; plaintiff also challenged the twenty-two dollar health insurance premium credit, claiming that defendant carries insurance for his other child and had provided no proof that he incurred any additional cost to insure the parties' child.
On November 19, 2008, the judge issued an amended order based on the correspondence without hearing any further oral argument. This order reduced defendant's child support obligation to $125 per week,*fn1 and modified the Thanksgiving visitation schedule in light of a complaint by plaintiff.
On appeal, plaintiff raises the following issues for our consideration:
1.) The [t]rial [c]court erred in determining the shared parenting schedule for the minor child, specifically, granting the [d]efendant parenting time every Sunday because doing so failed to adequately appreciate bo[n]ding between [the child] and [plaintiff's] children/family, interferes with quality weekend time for [plaintiff] and interferes with [plaintiff's] right as primary custodial parent to make decisions with regard to [the child's] religious upbringing.
2.) The [t]rial [c]court failed to properly address the holidays and vacation period of parenting time, specifically regarding a typographical error for New Year's Eve.
3.) The [t]rial [c]court did not properly apply the child support guidelines, specifically by incorrectly utilizing the [s]hared-[p]arenting
[w]orksheet and setting child support at $125 per week payable by defendant to [plaintiff], when the court granted defendant a credit of $22 per week toward the child's health insurance premium, and a [sic] $350 per week for a prior child support obligation and did not provide [plaintiff] with a correlating credit.
4.) The [t]rial [c]court inadvertently ignored plaintiff's request to obligate each of the parties to maintain life insurance for the benefit of the child.
5.) The [t]rial [c]court failed to address unreimbursed/uncovered medical expenses.*fn2
6.) The [t]rial [c]court erred in not awarding... [plaintiff] a counsel fee contribution and did not address each of the nine factors as required under [N.J.S.A.] 2A:34-23.
Having reviewed the record in light of these contentions, we reverse and remand for further proceedings with respect to two aspects of the trial judge's child support order: (1) to revisit child support by determining whether a shared parenting worksheet is appropriate; and (2) to ascertain what portion of the twenty-two dollar weekly health insurance premium is incurred to provide coverage for the parties' child. We affirm on all other issues.
The rules governing the calculation of child support provide:
C. Criteria for Determining a Shared-Parenting Award
The criteria listed below must be met before the shared-parenting worksheet and instructions are used to calculate a shared-parenting award. The existence of these criteria do [sic] not make a shared parenting award presumptive, but permit the calculation of the award so that the court can determine if it is appropriate for a particular family.
(2) the PAR [Parent of Alternate Residence] has or is expected to have the child for the substantial equivalent of two or more overnights per week over a year or more (at least 28% of the time) and the PAR can show that separate living accommodations for the child are provided during such times (i.e. evidence of separate living accommodations maintained specifically for the child during overnight stays). [Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2396 (2010) (emphasis added).]
On remand, the trial judge must determine what, if any, "separate living accommodations" defendant has in place specifically for the parties' child, in order to ascertain whether use of the shared parenting worksheet is appropriate.
Regarding the health insurance premium, it is undisputed that defendant provides health insurance coverage for both of his children under the same plan. Therefore, the trial judge must determine what portion of the twenty-two dollar weekly premium entered on the child support worksheet is properly apportioned to the parties' child, and modify that credit accordingly.
We are satisfied that plaintiff's contentions regarding the parenting time schedule, including the holiday and vacation schedule, are without merit. The trial judge accommodated plaintiff's motion for reconsideration by granting her nine Sundays "at her discretion" throughout the year, with the further proviso that plaintiff may return to court for further modification as the child grows older and reaches an age appropriate for kindergarten. We will defer to the family judge's findings and conclusions; we accord particular deference to factfinding in these cases due to the expertise of family judges. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
With respect to plaintiff's claim that she should be given credit for an "other dependent deduction" for her child of another relationship, we note that she failed to document any such obligation below. Therefore, plaintiff is free to bring a motion to address this issue with appropriate supporting documentation.
Finally, we address counsel fees. In her motion for reconsideration, plaintiff sought counsel fees because of the "very significant financial disparity" between her financial situation and defendant's. In her statement of reasons supporting the order of October 30, 2008, the trial judge denied counsel fees because she did not find "that either party acted in bad faith in this matter."
The decision whether to award counsel fees in a matrimonial action rests within the sound discretion of the trial judge. Williams v. Williams, 59 N.J. 229, 233 (1971); Rule 5:3-5(c). Financial need is not the sole factor to be considered in determining a counsel fee award. A party's good faith in instituting or defending the action is a factor that must be weighed in addition to the other party's ability to pay. Ibid. We are satisfied that the trial judge appropriately applied the factors in Williams and in the Rule when determining that each party should pay his/her own counsel fees. We defer to that determination. Cesare, supra, 154 N.J. 411-13.
Affirmed in part; reversed and remanded in part.