On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2230-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 6, 2010
Before Judges Axelrad and Lihotz.
In this post-judgment matrimonial manner, plaintiff James Holden (father) appeals from the child support award contained in the September 30, 2009 and November 2, 2009 orders of the Family Part. We affirm in part, and reverse and remand in part.
Pursuant to the parties' property settlement agreement, (PSA), incorporated in their May 25, 2004 final judgment of divorce, defendant Drina Holden (mother) was designated primary residential parent of their two sons, then ten and six years old. The PSA provided, in part, that father would pay $1,600 per month in child support pursuant to the Child Support Guidelines (guidelines), see Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2429 (2011), and mother would waive alimony.*fn1
In 2007, father moved to Dubai to pursue an employment opportunity. In September 2007, father filed a motion to modify parenting time and custody, pursuant to which the court entered orders requiring a plenary hearing as to support, and setting forth a discovery schedule. On August 11, 2009, the parties entered into a consent order, memorialized on September 10, 2009, which modified their PSA so father would become the primary custodial parent of their eldest son and he would relocate with father to Dubai, and leaving the support determination, as of September l, 2007, to the court. Father also paid $25,000 towards potential child support arrears, without prejudice.
The parties submitted their positions and case information statements (CIS) to the court. Father submitted an August l9, 2009 letter from his employer that he earned $240,454.91 annually. Father's listed monthly expenses were $19,538, which included his $1,600 support obligation, a $7,400 tax reserve, and a $5,000 debt service against $1,154,119 in outstanding judgments and debts, including state and federal taxes from 1997 through 2002.*fn2 As father's CIS was prepared prior to his eldest son's relocation, it did not include expenses pertaining to him. The attorney's submission represented, without documentation, that father's gross annual income for 2007 was $208,890 and for 2008 was $240,484. He further represented that father was not paying federal or state taxes but father anticipated addressing his existing and future liabilities and becoming current. The attorney estimated father's tax bracket to be between 25% and 28%, resulting in an average annual tax liability on his current income of $63,721 and net income of $176,825 annually. The submission further stated, without documentation, that father anticipated annual expenditures of approximately $20,000 for private tutors for his son, who had fallen behind in school, and $27,247 for private school tuition and associated costs. The submission also urged the court to consider father's obligation under the consent order to finance his son's roundtrip tickets to and from Dubai, which he anticipated being a minimum of three times a year at $1,800 per roundtrip.
Father also obtained a vocational expert report concluding that mother was "underemployed" as an office manager for a nonprofit entity earning $15 per hour, extrapolated to a gross annual salary of $31,200 for a forty-hour week. The expert opined that forty-nine-year-old mother had the immediate ability to earn gross annual income of $60,000 to $72,000, based on her educational credentials and work experience. Based on father's gross annual income at $208,890 for 2007 and $240,454 for both 2008 and 2009, and mother's imputed gross annual income of $72,000 for each of the three years, father submitted calculations and posited his child support under the guidelines alone at $401 weekly or $1,724 monthly for 2007, and $417 weekly or $1,793 monthly for both 2008 and 2009. Recognizing the parties' combined net income exceeded $187,200 annually, father urged that after consideration of the criteria contained in N.J.S.A. 2A:34-23a, he should have paid a total of $3,000 monthly in child support for both children, resulting in an additional obligation of $33,600 for the past two years commencing September 1, 2007. See Pressler & Verniero, supra, Appendix IX-A(20). Father further calculated his prospective child support under the guidelines, based on each party having one child, to be $207 weekly ($315-$108) or $890 monthly. Father posited that consideration of the statutory criteria should result in his prospective total support obligation for their younger son to be $2,000 monthly.
Mother's CIS reflected, with documentation, 2008 annual income of $24,075 gross and $20,888 net, and average weekly earned income through May 31, 2009 of $546.94 gross and $451.92 net (which would extrapolate annually to $28,440.88 gross and $23,499.84 net). Mother listed monthly expenses for herself and the two children at $5,566. Her attorney's submission noted mother had recently re-entered the workforce and her Fellowship and employment history pertained to non-profit community-based organizations, which offered lower salaries, and thus urged the court to utilize $25,000 as her gross annual income for child support calculations. The submission also challenged father's stated earnings, contending, in part, that his $240,000 annual salary from work should be considered as net, not gross, as he had not paid any taxes to the federal government since l997, and had sought employment outside the country, in part, to evade his tax obligation. It further referenced father's June 2008 CIS, supplied to the trial court but not contained in the appellate record, to demonstrate that father had not made any payments towards significant expert and counsel fees, and urged the court to disregard father's purported monthly expenses for tax reserves and debt service. Mother posited that child support should be calculated on father's net annual income of $240,000, and her gross annual income of $25,000, and with consideration of the statutory factors and extrapolating father's gross annual income at $400,000, urged that his retroactive child support for the two children should be $8,000 monthly and his prospective obligation for their youngest son should be $5,000 monthly.
In a September 30, 2009 letter opinion, the court found father presented no credible evidence as to withholding taxes and, based on the past practice of ignoring his tax obligation, concluded father's child support obligation should be calculated on net annual income of $240,000. The court found mother was not underemployed and earned $30,000 in gross annual income for child support purposes based on the following facts: (1) father's knowledge of her educational background and decision not to impute any income to her for child support purposes when he negotiated the 2004 PSA; (2) mother's employment history reporting she had never earned more than $40,000 annually; (3) mother's twelve-year period of not working outside the home while raising the parties' children; and (4) mother's recent re- entry into the workforce at entry level in her field of expertise. The court also found father's total monthly expenses attributable to the tax reserve and debt service were not credible, and father failed to provide supporting evidence as to the tuition expenses for his son.
The court began with the premise that the maximum base annual support for two children under the guidelines would be $606 per week, noting there should be a discretionary supplementation using, in part, N.J.S.A. 2A:34-23a. The court accepted mother's recitation in her CIS regarding the parties' marital standard of living ($20,065 monthly), and mother's and the children's post-judgment standard of living ($5,566 monthly). Based on mother's annual net salary of $28,000, the court found she had more than a $200,000 annual shortfall from the parties' marital standard of living and a $39,000 current annual shortfall. The court concluded that, in contrast, father was able to maintain his marital standard of living and was underpaying child support. The court then reasoned that father had ninety percent of the income, mother had ten percent of the income, and concluded "the children's additional needs [in excess of the $606 weekly ($31,512 annually)] amounted to $45,000 annually or total needs of $76,000." The judge then determined that, based on father's "financial good fortune," his "retroactive support obligation amounted to $7,600 per month or $64,400 annually," or a total of $90,000, later recalculated to $119,000, for the twenty-four month period.*fn3
In calculating prospective child support for the fifteen-year-old son with father in Dubai and the eleven-year-old son with mother in the United States, because neither party provided anticipated expenses, the court considered mother's "current expenses as extrapolated from two children to one and inferred those expenses [we]re mutual." The court found, without explanation, father's monthly expenses in Dubai were "not credible," the debt service and tax reserve should not be considered as expenses, and father "has significantly more disposable income than reported whatever his true income and expenses may be in Dubai." The court established father's prospective support obligation for his younger son to be $3,514 per month, explaining as follows:
The base line child support for one child under the Child Support Guidelines up to $3,600 net weekly is $453 or $23,556 annualized. From the analysis of the additional needs for one child as determined from the defendant's financials, the court finds the additional needs for one child would amount to $30,500 [annually] or total needs of $54,056 [annually]. The plaintiff's financial responsibility for the child in New Jersey is $48,650 annually or $4,054 per month. The defendant's financial responsibility for the child in Dubai is $5,400 [annually] or $540 per month. The net amount to be ...