August 30, 2010
SHELLEY MOEHRLE, N/K/A SHELLEY PRYSANT, PLAINTIFF-APPELLANT,
MICHAEL MOEHRLE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-95-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 26, 2010
Before Judges Wefing, Grall and LeWinn.
In this post-judgment matrimonial matter, plaintiff appeals from various provisions of the July 1, 2008 order of the Family Part related to the proper calculation of defendant's child support obligation for the parties' children, fraternal twins who are presently nineteen years old; she further challenges the provisions denying her request to prevent defendant from seeking reimbursements from a medical fund, and limiting her counsel fee award to $1000. For the reasons that follow, we reverse and remand for further proceedings on plaintiff's request for a retroactive increase in child support based upon her claim that defendant has not exercised overnight parenting time, and to recalculate child support to include the 14.6% adjustment based on the ages of the children; we affirm on the remaining issues.
We briefly summarize the pertinent factual background. The parties were married in 1989; the twins were born in July 1991. The parties were divorced by a final judgment entered on October 15, 2004, which incorporated their property settlement agreement (PSA). The PSA provided that defendant's child support obligation was $195 per week "so long as COBRA coverage lasts. When [plaintiff] is no longer paying this coverage, [defendant] shall pay $132/wk per the Guidelines." On October 17, 2007, an order was entered setting defendant's child support obligation at $132 per week, pursuant to the PSA.
On May 19, 2008, plaintiff filed a motion seeking the following relief relevant to this decision: (1) to bar defendant from applying to a medical fund for reimbursement of the children's medical expenses; (2) for a retroactive increase in child support based upon defendant's failure to exercise overnight parenting time, and to add a cost of living adjustment (COLA); (3) to impute income to defendant based upon his failure to provide accurate income information; (4) to compel defendant to pay child support arrears; and (5) for counsel fees and costs. Plaintiff requested oral argument on her motion.
Regarding child support, plaintiff certified that the obligation established in the PSA was based upon defendant exercising overnight parenting time with the twins; plaintiff asserted that "[s]hortly after" the divorce, defendant stopped exercising "overnight visitation, or any other parenting time" with the children, and "[d]espite his failure to exercise overnight visitation,... has refused to modify the existing support order to eliminate his overnight visitation credit." Plaintiff therefore sought both to eliminate his twenty-two dollar credit for parenting time prospectively, and to be reimbursed the amount of $4224, representing the amount of the credit multiplied by the 192 weeks in which, she asserted, defendant had exercised no parenting time.
Regarding the COLA, plaintiff asserted that in August 2006, defendant received notice from the Morris County Probation Department that his support obligation would be increased by a 7.9% COLA; defendant communicated with the Probation Department without notice to plaintiff, and purportedly presented information regarding his earnings that ultimately resulted in Probation's denial of the COLA.
Plaintiff asserted further that the judge should impute $110,000 annual income to defendant for child support purposes, stating that defendant "is a construction project manager who has consistently lied to and defrauded the [c]court and [P]robation as to the quantum of his earnings." Plaintiff attached defendant's 2006 Form 1099, reflecting gross business income of $87,500, which she asserted was "25% more income than the $70,000 that was attributed to him in the child support guideline calculations." Plaintiff also appended two residential loan applications, one dated November 19, 2004 and signed by defendant indicating gross annual income of $96,000, and a second unsigned and undated application setting forth defendant's gross annual income at $126,000.
Plaintiff provided calculations showing that defendant's then-current child support and alimony arrears amounted to $2,183.34; she requested immediate payment of that amount. Plaintiff did not address the medical fund reimbursement issue in her certification.
In opposition, defendant certified that plaintiff "refused to communicate, has totally blocked [his] visitation and communications to [his] children, and consistently violated [his] parental rights." Defendant claimed that he was "not delinquent on [his] support," claiming further that the Probation Department informed him that he had "[never] been delinquent...." Defendant further asserted that he has "repeatedly provided [his] financial information and tax returns," including "1099's, which show the gross income for [his] business prior to [his] business and healthcare expenses...."
Defendant appended voluminous documents to his certification, including correspondence between the parties purporting to support his claims regarding parenting time. He also submitted a notice from the Probation Department, dated October 13, 2006, stating, "[b]ased upon the information provided, no [COLA] will be made at this time."
Plaintiff filed a reply certification, claiming that the Probation Department was "simply erroneous" in its arrears calculations. Regarding parenting time, plaintiff claimed that "[d]efendant currently has no visitation because the [c]court terminated his visitation rights and he refused to attend reunification therapy as ordered by the [c]court that could have led to him having unsupervised visitation rights."
Notwithstanding plaintiff's request for oral argument, the judge decided the motion on the papers. In his statement of reasons for the July 1, 2008 order, the judge declined to increase child support, and based his calculations on defendant's income as reported in his 2007 tax return, which pro-rated to $1298 gross weekly income. The judge declined to consider an increase in support based upon the documents submitted by plaintiff, finding "no misrepresentation or fraud as asserted... [and that] plaintiff ha[d] not met her burden of proof that the defendant ha[d] misstated his income."
Defendant's child support obligation was modified to eighty-nine dollars per week. The child support guidelines worksheet appended to the order shows that the judge eliminated the twenty-two dollar parenting time credit; however, no adjustment was made based upon the age of the children, as required by the child support guidelines.*fn1
Regarding plaintiff's request for retroactive modification of child support based upon defendant's failure to exercise parenting time as well as the denial of the COLA in 2006, the judge stated:
Plaintiff asserts a claim for retroactive increase in child support based upon two theories. The initial child support award contemplated $22.00 of parenting expense. Yet, defendant has not enjoyed parenting time in several years. The Anti-Retroactive Child Support Statute, N.J.S.A. 2A:17-56.23 (a) applies in this case. The Property Settlement Agreement clearly contemplated reunification therapy and acknowledged that there was a substantial separation between defendant and the children. The [c]court is also not satisfied that the failure of parenting is solely the responsibility of defendant. In addition, the plaintiff has waited four years to raise this issue since the original award. Although Keegan v. Keegan, 326 [N.J. Super.] 289 (App. Div. 1999) permits the [c]court to modify support retroactively, the [c]court does not believe that on this issue the equities are in favor of doing so.
The [c]court has also declined to adjust the child support retroactively based upon an alleged misrepresentation by defendant to Probation as to his income in 2006. The [c]court notes that the child support initial award contemplated that the defendant's annual income would be $69,992.00. In fact, his income for 2006 as stated on the tax return was $51,277.00. The Court acknowledges that there is [a] W-2 in the amount of $87,500.00 indicating non-employee compensation. The tax return submitted to the [c]court does not include Schedule C which should demonstrate how the $87,500.00 of non-employee compensation became $51,277.00 of taxable income. In any event, however, the child support that has been in place to this point was based upon income of almost $70,000.00. The [c]court finds no misrepresentation or fraud as asserted which would warrant the use of the equitable powers pursuant to Keegan, supra.
The judge set defendant's support arrears at $244.80 based on the June 30, 2008 statement provided by the Probation Department. The judge did not address plaintiff's claim that Probation's calculations were "erroneous."
The judge denied plaintiff's request to prohibit defendant from taking reimbursements from the medical fund, stating, "[t]here is really no information provided in the certification which would warrant relief of any kind."
Finally, regarding his award of $1000 in counsel fees, the judge stated:
Counsel fees in the amount of $1,000.00 have been awarded. Defendant has failed to abide by prior court orders as to the payment of $377.50, has incurred arrears and has failed to maintain medical insurance without notice to the plaintiff. These constitute a basis under R. 1:10-3 to award fees. The [c]court declines to award a greater amount as plaintiff's request to increase child support has been denied for the reasons stated. In fact, the child support amount is being reduced.
We turn to the issues plaintiff has raised on appeal, and first address her request for a retroactive increase in child support.
N.J.S.A. 2A:17-56.23(a) provides, in pertinent part, that "[n]o payment or installment of an order for child support... shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed...." However, as the trial judge himself noted, in Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999), we expressly held that "the anti-retroactive support statute's applicability is limited to prevent retroactive modifications decreasing or vacating orders allocated for child support." (Emphasis added.)
Here, the trial judge declined to follow Keegan because he did "not believe that on this issue the equities are in favor of doing so." However, we question how the judge could reach such a conclusion in light of the conflicting affidavits of the parties. At the time the parties entered into their PSA in October 2004, defendant's child support obligation was reduced by a twenty-two dollar credit for parenting time, based on the presumption that defendant, who was then undergoing reunification therapy, would "resume parenting time in accordance with the recommendations and instructions of the reunification therapist."
The record reflects, however, that defendant terminated that therapy in March 2005. Plaintiff certified that defendant never resumed overnight parenting time; in response, defendant certified that plaintiff had "blocked" his efforts to visit and communicate with his children. This factual discrepancy presented by the parties' motion papers must be addressed in order to meaningfully resolve plaintiff's request for a retroactive modification of child support.
As noted, plaintiff requested oral argument on her motion; nonetheless, the judge decided all issues on the papers. "It is basic that a case should not be decided merely on the basis of conflicting affidavits, or an inadequate record." Wilkie v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985).
The child support guidelines provide that if the non-custodial parent exercises regular [visitation] [t]ime with the child[ren], the court may reduce... [the child] support award to accommodate variable expenses (food and transportation) incurred by the non-custodial parent during... [such] periods. In determining if such an adjustment is appropriate, the court should consider whether the non-custodial parent has incurred variable expenses for the child[ren] during [visitation] [t]ime and if... [such] [t]ime has reduced the other parent's variable expenses for the child.
[Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, para. 13 (2010).]
It appears that neither of these conditions has existed here since the time of the parties' divorce; that is, defendant has incurred no "variable expenses" on behalf of the children, and plaintiff has incurred no reduction in her share of those expenses. Whether plaintiff is entitled to the relief sought, however, must be addressed by oral argument and, if necessary, a plenary hearing. Wilkie, supra, 196 N.J. Super. at 501. See Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (denying a request for oral argument "deprives litigants of an opportunity to present their case fully to a court[,]"... and the "[d]enial of such a right, given the issues in dispute, was an abuse of discretion").
Moreover, when the trial judge calculated the child support amount set forth in the July 1, 2008 order, he failed to include the requisite 14.6% adjustment based on the children's age. The child support guidelines specify that "if the initial child support order is entered when a child is 12 years of age or older, that order and all subsequent orders shall be adjusted upward by 14.6%. Whenever the 14.6% adjustment is made, it should be noted in the guidelines worksheet or in the support order." Pressler, supra, Appendix IX-A, para. 17.
The parties' children were thirteen years old when child support was first calculated in the PSA. The child support guidelines worksheet appended to the parties' PSA reflects that the 14.6% adjustment for the children's age was included in the calculations. The "subsequent order" of July 1, 2008, must also include that adjustment.
Plaintiff's remaining arguments "are without sufficient merit to warrant discussion in a written opinion[,]" Rule 2:11-3(e)(1)(E), beyond the following brief comments. We affirm on those issues substantially for the reasons set forth by the trial judge in his statement appended to the order; we are satisfied that those reasons are "based on findings of fact which are adequately supported by evidence" in the record. R. 2:11-3(e)(1)(A). We defer to those findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Suffice it to say, the Probation Department determined the COLA issue based upon the financial information defendant submitted. Rule 5:6B provides that "[b]efore a [COLA] is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice." The record does not reflect that plaintiff made any effort to pursue this matter through the Probation Department once she received notice that the COLA had been denied.
Plaintiff presented the judge with no basis for imputing annual income of $110,000 to defendant. The one loan agreement she submitted, which reflected an estimated annual income of $126,000, was unsigned and undated. The trial judge based his child support award on defendant's 2007 tax return. We discern no reason to revisit that determination.
The judge set defendant's child support arrears based upon the report furnished by the Probation Department. As defendant's support payments were at all times made through the Probation Department, plaintiff presents no explanation for the larger arrears amount she reached in her own calculations.
With respect to the medical fund, as noted above, plaintiff did not address this in her certification or supporting documents. Therefore, we conclude the trial judge properly denied this relief based on his finding that he had "no information... which would warrant relief of any kind."
Finally, we affirm the counsel fee award as one solely within the discretion of the trial judge. Williams v. Williams, 59 N.J. 229, 233 (1971).
Affirmed in part; reversed and remanded in part. We do not retain jurisdiction.