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Navin v. Navin

August 30, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1122-01.

Per curiam.


Argued June 8, 2010

Before Judges Wefing, Grall and Messano.

Plaintiff Richard C. Navin and defendant Laurie Navin were divorced by judgment entered on June 4, 2003 on a complaint that was filed in June 2001. This is the third appeal from that judgment. See Navin v. Navin, No. A-0839-03 (App. Div. Mar. 11, 2005) (Navin I); No. A-6745-04 (App. Div. Jan. 25, 2007) (Navin II). At the time of the Navins' divorce, defendant's salary was about $32,500. Plaintiff's average gross income from his dental practice from 1981 through 2003 was about $370,000.

Plaintiff appeals from an order entered on remand following Navin II.*fn1 The case was remanded for reconsideration of issues related to support set on remand in Navin I - $6220 per month for alimony and $1557 per month for child support. Navin II, supra, slip op. at 10. We provided specific direction for remand. The trial judge was to consider whether the $1000 monthly child support to which the parties had agreed on remand in Navin I was consistent with the best interests of the children, Ordukaya v. Brown, 357 N.J. Super. 231, 241 (App. Div. 2003); R. 5:6A. Navin II, supra, slip op. at 14-15. In addition, because we had affirmed the trial judge's finding that defendant's monthly expenses for herself and the children were $6735 on the first appeal but that the trial judge had erred in calculating taxes on the alimony, the judge was also directed to reassess the amount of alimony needed to permit plaintiff to pay her income tax. Id. at 16-17.

On this remand, the trial judge conducted a hearing and set alimony in the amount of $47,912 per year, $3992.66 per month; determined that child support in the amount of $1000 per month for two children was consistent with their best interests for the period between June 1, 2003 and the date of the oldest child's eighteenth birthday; and directed that defendant compensate plaintiff for overpayments of alimony from June 1, 2003 by way of lump sum payment and credit against future alimony payments. In addition, the judge awarded defendant $20,000 for counsel fees and costs she incurred on remand.

On this appeal, plaintiff raises several claims of error relevant to the judge's factual findings and to his discretionary determinations on child support, tax on alimony and counsel fees. Defendant urges us to affirm because the trial judge did not abuse his discretion in addressing the issues remanded or awarding counsel fees to her. Because the judge followed this court's mandate and made determinations based on factual findings that are adequately supported by the record and not inconsistent with a proper exercise of the court's discretion, we affirm.

The procedural history of this protracted divorce litigation and the pertinent facts are set forth in our prior decisions. Accordingly, there is no reason to repeat them at length here. Thus, we turn to consider the issues raised by plaintiff on appeal and address the relevant facts as needed.

In Navin II, we determined that on the first remand the parties "narrowed the issues by agreeing that $1000 [per month] was a proper amount for child support." Slip op. at 6. As the judge had disregarded that agreement, we remanded with direction for the judge to determine whether the $1000 agreed support was consistent with the children's best interests and accept their agreement if it was.

On appeal, plaintiff suggests that he rejected the $1000 amount on the second remand because it was not in the best interests of his children. That claim is not supported by the record. Initially, the parties disagreed about whether the $1000 child support was for one or two children. In a memorandum submitted to the trial judge on May 21, 2007, plaintiff asserted that $1000 was for two children. He did not argue that the child support was too low. At first, defendant objected on the ground that $1000 was appropriate for one child, but she abandoned that objection and agreed to accept plaintiff's position.

Plaintiff also argues that the judge did not follow this court's direction to consider whether the child support to which the parties agreed is reasonable. While the judge's factual findings on this point are not set forth in the judge's written decisions, those findings were placed on the record on October 17, 2008. The judge explained:

I do not know what the guidelines would call for as of the time that [the prior judge] calculated child support. It was the $1500 a month, coming down to - I got here a worksheet that says [$]362 a week, and that would be for - let me just - that would be for 4.3 weeks a month [at $]362.

And in this situation, I want to be abundantly clear. I know that the judge has - consistent with the best interest of the children... an obligation to look at and consider the number that the guideline calls ...

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