December 2, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-89-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010 - Decided
Before Judges Fuentes, Gilroy and Ashrafi.
K.M.T. has not filed a brief.
In this case arising from post-divorce litigation involving the parties' three children, the father, J.L.T., appeals from several orders of the Family Part denying without prejudice his motion for change of custody of the children, retroactively increasing his child support obligation, and requiring that he reimburse the mother, K.M.T., for two items of expense. We affirm in part and reverse in part. We remand to the Family Part to hold a plenary hearing, if father is still pursuing his motion for change of custody, and to reduce by $375 his obligation to reimburse mother for expenses of the children.*fn1
The parties were married in 1992. They were divorced in 2001. Their children are now eighteen, fifteen, and fourteen years old. They agreed to joint custody and equal parenting time through a marital settlement agreement incorporated into their judgment of divorce. The parties have lived in the same municipality since their divorce, and the children were to spend fifty percent of the time in each parent's home.
After their divorce, the parents have returned to court frequently to litigate their disputes. From 2002 until 2009, the Family Part issued at least ten orders addressing custody and financial disputes involving the children, and we have twice previously issued short unpublished opinions on father's appeals from child support orders. After the second of those appeals, father was ordered to pay mother $119 per week for child support.
In May 2006, the parties agreed to a change in residential custody of the oldest child. She began to live only in mother's home, although there was one period of about two months when she stayed at father's house. The two younger children continued to split time equally between the two homes.
In the summer of 2006, mother filed a motion to adjust child support because of the change in the residential status of the oldest child. In calculating child support, the Family Part used only sole parenting worksheets. See Child Support Guidelines, Pressler Current N.J. Court Rules, Appendix IX-C to Rule 5:6A (2006). In one worksheet for the oldest child, the court designated mother as the custodial parent and determined that father's child support obligation for the oldest child would be $217 per week. In a second worksheet for the other two children, the court designated father as the custodial parent and determined that mother's child support obligation would be $70 per week. Subtracting mother's obligation from father's, the court ordered father to pay $147 per week to mother by order dated August 23, 2006.
Mother moved for reconsideration, arguing that the court erred in using sole parenting worksheets. She argued that the proper method of calculating child support was to designate each parent as the parent of primary residence for the two younger children, using two separate shared parenting worksheets and then taking the average of the two results. That number would then be added to the child support figure for the oldest child. By order dated October 3, 2006, the Family Part denied mother's motion for reconsideration.
In 2007, father moved for a change of custody of the children and mother cross-moved again for adjustment of the child support calculation. Each party also moved for other relief involving the children and the responsibilities of each parent for their expenses. By order dated October 4, 2007, the Family Part denied father's motion for a change of custody and also denied mother's motion to adjust child support, stating that the latter denial was "with prejudice."
In September 2008, mother was arrested and charged with driving while intoxicated (DWI). According to father, she crashed into two parked cars in a bank parking lot at 8:30 a.m., and the police found in her possession an empty prescription bottle for a narcotic painkiller. Father moved for evaluation of mother as a risk to the children's safety and for a change of custody, but his motion was denied without prejudice by order dated October 24, 2008. The court stated that father's motion should be considered on its merits after disposition of the DWI charge in municipal court.
In January 2009, mother pleaded guilty to the DWI charge. In early April 2009, she was hospitalized after one of the children found her unconscious on the floor in her house. Father immediately renewed his motion for a change of custody. He alleged that mother had a history of personal problems and that the recent incidents were evidence that the children were at risk while in mother's care. The Division of Youth and Family Services (DYFS) also initiated an investigation of potential risk to the children. Mother opposed the motion for change of custody and cross-moved yet again for adjustment of the child support calculation. Both parties also made numerous other claims for reimbursement of expenses of the children.
On the return date of the motions, May 14, 2009, the court made rulings from the bench on the multitude of issues presented. The court denied without prejudice father's motion for change of custody, stating that it had received and reviewed files from DYFS concerning mother's April 2009 illness. The court stated that the information it had received was insufficient to order a change in custody, and it would await completion of the DYFS review, since DYFS was still seeking mother's hospital records.
As to the DWI conviction, the court commented that, although mother had pleaded guilty to the charge, "people sometimes enter pleas for reasons that are not necessarily related to their agreement that they actually did it." The court acknowledged that a hearing was probably necessary to resolve the motion for change of custody. The court said it would set a discovery schedule in its order disposing of the motions. It also said it would decide what doctors' reports and hospital records could be disclosed to father once they were received by DYFS and provided to the court for in camera review.
As to recalculation of child support, mother had failed to support her request with a current case information statement, as required by Rule 5:5-4(a). The court said it would allow her to correct that deficiency and to re-apply for modification of child support.
At the motion hearing on May 14, 2009, the court devoted substantial time to ruling upon many individual items of reimbursement for the children's expenses sought by each party.
By order dated May 19, 2009, the court denied without prejudice father's motion for a change of custody. The order did not set a discovery schedule or otherwise address discovery of mother's medical records or the scheduling of an evidentiary hearing pertaining to custody. The order denied without prejudice mother's motion to modify child support but stated that if mother re-filed that motion within forty-five days, the court would apply any modification retroactively to April 30, 2009, the date that she had filed her cross-motion. The order decided the bulk of the parties' disputes about reimbursements by means of a detailed five-page listing of separate itemized expenses of the children.
On June 2, 2009, mother re-filed her motion for recalculation of child support. Father opposed the motion, arguing that there were no relevant changed circumstances since the court's child support order of 2006, and that mother's motion asserted precisely the same grounds that were rejected "with prejudice" by the court's order of October 4, 2007. In a cross-motion, father also re-filed his request for reimbursement of his child care expenses, which had been denied without prejudice in the May 19, 2009 order, and for reconsideration of two relatively minor items of reimbursement to mother. Neither party requested oral argument.
On the return date of the last set of motions, August 14, 2009, mother was present in court, but father was not. Father states that he received no notice that the court would entertain oral argument. The Family Part judge spoke to mother on the record and stated orally the court's rulings with respect to the pending motions. The court stated that the August 23, 2006 child support order "was incorrect" and that it would recalculate child support upon receiving information about expenses of health insurance coverage for the children.
The court also said that DYFS had closed its investigation of mother's April 2009 hospitalization. Apparently, the hospital had refused to disclose its records to DYFS because DYFS did not have custody of the children. The court ordered mother to sign releases for the hospital records to be turned over directly to the court so that it could assess risk to the children.
The court ruled in favor of father on his motion for reimbursement of certain amounts of his child care expenses but denied his motion for reconsideration of the two minor items of reimbursement.
The court's order of October 28, 2009, stated in the entirety of its dispositive text:
[I]n accordance with the Statement of Reasons attached hereto, defendant [father] shall pay child support to plaintiff [mother], retroactive to April 30, 2009 at the rate of $268 per week. The arrears as of October 29, 2009 are $3,815.35, which should be paid at the rate of $40 per week. The total on a weekly basis will, therefore, be $308. Probation shall adjust their records accordingly.
The court attached a statement of reasons to the order consisting of nine pages of text explaining its theory and methodology for calculating child support of $268 per week.
Also attached to the court's order were five shared parenting work sheets for child support.*fn2
Father filed a timely notice of appeal challenging the entirety of the October 28, 2009 order retroactively increasing his child support from $147 to $268 per week and also challenging parts of the August 25, 2009 and May 19, 2009 orders. Mother has not filed any responding papers in opposition to father's appeal.
In his first point on appeal, father argues that mother has a history of personal problems that endanger the welfare of the children when in her care. He contends that the Family Part unreasonably disregarded her conviction for DWI and erroneously denied him a hearing to establish that the children were at risk. He seeks reversal of paragraph one of the Family Part's May 19, 2009 order, which denied without prejudice his motion to transfer custody of the children to him.
"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children. Ibid.; see Lepis v. Lepis, 83 N.J. 139, 159 (1980). Rule 5:8-6 requires that the court set a hearing date if it "finds that the custody of children is a genuine and substantial issue."
In some cases, the need for an evidentiary hearing is clear. See, e.g., Mackowski v. Mackowski, 317 N.J. Super. 8, 11-12 (App. Div. 1998); Fusco v. Fusco, 186 N.J. Super. 321, 327-28 (App. Div. 1982). In other cases, where the need for a plenary hearing is not so obvious, the threshold issue is whether the moving party has made a prima facie showing supporting a change in custody. The trial court here concluded that father had made such a showing, and we agree. Mother's DWI conviction and her collapse in the home in April 2009 were documented events and warranted exploration of the particular circumstances.
The trial court recognized the need for an evidentiary hearing, but instead of scheduling one, the court denied father's motion for a change of custody by its May 19, 2009 order. Later, on the August 14, 2009 return date of the next series of motions, the court's colloquy with mother suggested it was still pursuing the custody issue but awaiting medical records to be released by mother. Following entry of the order of October 28, 2009, father filed his notice of appeal, and thus jurisdiction was transferred from the Family Part to us.
The long delay in scheduling a hearing was not warranted from the time father filed his motion for change of custody in April 2009 until he filed his notice of appeal in December 2009. In custody cases, the court's primary consideration is the best interests of the children. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). Focusing on the "safety, happiness, physical, mental and moral welfare" of the children, Fantony v. Fantony, 21 N.J. 525, 536 (1956), the court should have scheduled an evidentiary hearing after oral argument on May 14, 2009, to determine whether mother's physical and psychological health places the children at risk. The court should not have denied, albeit without prejudice, father's motion for change of custody without first conducting an evidentiary hearing.
In fairness to the Family Part judge, our review of the motions record and the post-divorce history between the parties reveals that father and mother have repeatedly litigated minutely-detailed financial issues. In raising numerous items of disputed reimbursement under the parties' marital settlement agreement, father's and mother's motions have required an inordinate amount of time and attention from the court. The court's order of May 19, 2009 included a list of more than 175 separate expense items of the children that the court reviewed. More than fifty-five of those were for expenses of $25 or less. Many items were for three, five, or ten dollars. The court diligently reviewed the evidence and made rulings regarding adequacy of proofs as to each expenditure and whether reimbursement was required under the terms of the marital settlement agreement.
These circumstances may explain why the court's attention may have been diverted from the seemingly more important custody issue raised in father's motion, and why the order of May 19, 2009 may have omitted the discovery schedule that the court intended to set. The Family Part, being in a better position than we are to assess the parties' true intent as exhibited by the numerous issues raised, may have concluded that the parties were more interested in resolving their financial disputes than the custody motion.
We commend the Family Part judge for working diligently to address the parties' numerous disputes. In the spotlight of appellate review, however, those efforts do not erase the necessity of hearing promptly the change of custody issue. Had the court not denied father's motion for a change of custody by its order of May 19, 2009, and instead scheduled discovery and a prompt hearing, father could not complain that he was denied an opportunity to prove he should have exclusive residential custody of the children.
We are also aware that with the passage of time and the advancing age of the children, the circumstances may have changed since 2009, and a change in custody, especially for the oldest child, may no longer be appropriate. The court should determine the status of the parties and the children, complete expeditiously any appropriate discovery, and schedule a hearing if father still seeks to pursue his motion for a change of custody.
We reverse paragraph 1 of the May 19, 2009 order and remand to the Family Part to rule substantively on the motion for change of custody, after conducting a plenary hearing if still appropriate.
In his second point, father argues that the court erred in considering mother's renewed 2009 motion for modification of child support because an identical motion was denied "with prejudice" by the court's order of October 4, 2007, and that order was res judicata. Father has set forth side-by-side the content of mother's 2007 motion and her 2009 motion for adjustment of child support. The later motion is virtually a copy of the earlier one. We can discern no substantive difference in the facts and arguments asserted.
Child support orders, however, set only present obligations and are subject to modification at any time, although normally on grounds of a change in circumstances. Lepis, supra, 83 N.J. at 146. In the absence of changed circumstances, a court may still revisit an order in accordance with Rule 4:50-1 to correct an obvious calculation error. See DiPietro v. DiPietro, 193 N.J. Super. 533, 539-40 (App. Div. 1984). Subsection (f) of that rule allows modification of a child support order at any time if "the circumstances are exceptional and enforcement of the judgment or order would be unjust, oppressive or inequitable." Johnson v. Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999). Relief pursuant to that provision should be granted sparingly. Ibid.
Here, the Family Part had discretion to revisit the child support order of 2006. Although the parties equally shared physical custody of their two younger children, the 2006 child support calculation presumed that father had sole custody of those children and that mother had two or fewer overnights with them per week.
In 2007, the court denied mother's motion for reconsideration with prejudice "for the reasons set forth on the record," but father has not included the relevant portion of that record in his appendix, precluding meaningful analysis of the extent to which the court considered the erroneous presumption of the prior child support worksheets and order.
On mother's most recent motion for modification, the court recognized that the parties equally shared custody, a different circumstance from that which supported the existing support calculation. The court's decision to fix support based on the true parenting arrangement ensured that both parents fulfill their support obligations in accordance with the child support guidelines. Whether or not the reason for reconsideration is labeled changed circumstances does not undermine the soundness of the trial court's decision. See Colca v. Anson, 413 N.J. Super. 405, 413-16 (App. Div. 2010). The trial judge is afforded "'the utmost leeway and flexibility in determining what is just and equitable'" when assessing whether a child support obligation should be modified. Lepis, supra, 83 N.J. at 147 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). The "guiding principle is the 'best interests of the children.'" Id. at 157.
At the same time, a judge of the Family Part has discretion to dismiss repetitive motions for modification of child support when the amount has been properly determined and ordered. We do not suggest that every repetitive motion for review of child support alleging miscalculation must be considered on the merits. Our Family Part judges are in the best position to decide when to exercise their discretion to review an alleged miscalculation in the absence of other allegations of changed circumstances.
Such a review of a child support order is not an appeal of another trial judge's ruling but reconsideration based on legal arguments pursuant to Rule 4:50-1. Cf. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987) (trial court has discretionary authority to reconsider interlocutory orders), certif. denied, 110 N.J. 196 (1988). We see no abuse of discretion in the Family Part's decision to reconsider the August 23, 2006 child support calculation.
In his third point, father challenges the accuracy of the Family Part's calculation of his child support obligation. He does not specifically argue that the court's methodology was incorrect. We have nevertheless considered whether the court erred in employing its own formula for calculating child support in circumstances where one child lives exclusively with one parent and the other two reside in equal amounts of time in each household.
The child support guidelines are based on presumptions about which parent bears categories of expenses for the children. Even where custody is shared, the guidelines presume that the parent of primary residence exclusively incurs "controlled expenses," such as clothing and personal care, and those expenses account for approximately one fourth of the basic child support amount. The guidelines also presume that both parents incur the remaining "fixed" and "variable" expenses for the child. Benisch v. Benisch, 347 N.J. Super. 393, 396-97 (App. Div. 2002). Where, as here, custody is shared precisely equally, those presumptions present a false picture of likely expenditures for the children. Id. at 397.
In Benisch, we suggested possible methods of accounting for the parties' sharing of controlled expenses but also said that "if the court has some alternative which it deems more desirable, it should not feel preempted from employing such a device," so that it may "effect substantial justice between the parties." Id. at 400-01. In accordance with our views in Benisch, the Family Part in this case acted within its discretionary authority to employ a calculation tailored specifically to the circumstances of the parties' custody arrangement.
Father also disputes the income amounts attributed to each parent in the several shared parenting time worksheets - $1,874 to father and $720 to mother. Father states he is an electrician who earns income on an hourly basis. He argues that the court used only one paystub that he submitted to attribute weekly gross income of $1,874 to him when it should have taken an average weekly income through 2009, resulting in a figure several hundred dollars less.
Father argues that his 2008 income tax return showed gross wages of $82,450, which averages to $1,585 per week. He suffered an injury and received only disability income for nineteen weeks in 2009. In an August 31, 2009 certification, he reported that his year-to-date income in 2009 was $35,421.54, which included $13,040 in disability payments. That income averages to about $1,073 per week. Father acknowledges that temporary disability is not a changed circumstance that warrants modification of child support but claims that the court should have taken an average of the weeks that he was able to work in 2009.
Our review of the record indicates that father himself reported average gross wages of $1,874 in the case information statement he filed in opposition to mother's motion for modification of child support. We find no error in the trial court's accepting father's representation of his current income and use of that figure in the worksheets.
Finally, father argues that the court erred in declining to impute additional income to mother beyond her actual gross wages. We do not find sufficient merit to warrant discussion of that contention in a written opinion. See R. 2:11-3(e)(1)(E).
We agree with father's argument that the order of May 19, 2009, erroneously required that he pay to mother one half of the unreimbursed medical expenses for the oldest child. Although the parties' marital settlement agreement provided for equal sharing of unreimbursed medical expenses, that provision was based on equal residential parenting time of all three children. Those circumstances changed when the oldest child moved exclusively into mother's home and father's child support obligation was adjusted.
After it was increased in August 2006, father's child support payments included unreimbursed medical expenses up to $250 per year for the oldest child. See Child Support Guidelines, Pressler Current N.J. Court Rules, Appendix IX-A to Rule 5:6A, pp. 2434-35 (2011). Mother was responsible for payment of the first $250 each year for the oldest child's unreimbursed medical expenses before requiring that father split additional medical expenses with her.
For the three years from May 2006 to May 2009, mother was responsible for $750 in unreimbursed medical expenses for the oldest child. The court's order requiring an equal splitting of those expenses over-counted father's financial obligation by $375.
To summarize our decision, we reverse that part of the order of May 19, 2009, denying father's motion for change of custody and remand to the Family Part to decide that motion on its merits, by means of a plenary hearing unless circumstances have changed and a hearing is no longer sought or warranted. We also reverse that part of the May 19, 2009 order that required father to reimburse mother $375 for medical expenses of the oldest child from May 2006 to May 2009. We affirm the child support order of October 28, 2009.
We do not retain jurisdiction.