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Monica Tuman v. Michael Tuman

January 21, 2011

MONICA TUMAN, PLAINTIFF-RESPONDENT,
v.
MICHAEL TUMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2950-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2010

Before Judges Carchman and Graves.

Defendant Michael Tuman appeals from an order of the Family Part, on remand, requiring him to pay certain extraordinary child care expenses in addition to his agreed-upon child support obligation for the benefit of his three children. We affirm.

These are the relevant facts. Plaintiff and defendant were married on June 29, 1997 and divorced by a judgment of June 29, 2004. The judgment incorporated a Property Settlement Agreement (PSA) which provided that both parties would have joint legal custody of the three children.*fn1 The PSA further provided that defendant would pay $28,600 per year, or $550 per week "for the support and maintenance" of the children. At the time the parties agreed on the terms of the PSA, defendant allegedly reported an income in his then start-up business of approximately $40,000 per year. The parties recognized that the child support award was not in accordance with the Child Support Guidelines, Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2429 (2011), but reflected a negotiated amount taking into consideration other sources of available funds provided by family members as well as a waiver of any alimony payments.

Three years later, plaintiff filed a motion seeking contribution from defendant towards extracurricular expenses not included in the child support payments. The trial court entered a series of orders, directing defendant to pay seventy-five percent of the costs of the following activities: day camp, Hebrew school tuition, synagogue dues, math tutoring and school supplies.

Defendant appealed, and in an unreported opinion, we reversed and remanded to the trial judge with specific instructions to conduct a hearing on the extraordinary expenses based on the principles enunciated by us in Accardi v. Accardi, 369 N.J. Super. 75, 87-90 (App. Div. 2004). Tuman v. Tuman, No. A-6486-06 (App. Div. July 31, 2008). We mandated that the judge determine: (1) which activities fall within defendant's monthly child support payment; (2) which activities are extraordinary expenses; (3) which extraordinary expenses are reasonable; and (4) what proportion of extraordinary expenses defendant must pay.

Following an extensive plenary hearing, the trial judge issued a written opinion where he concluded that the expenses in issue were not contemplated in the PSA and that some of these expenses did not exist at the time the PSA was executed. The judge further found that some expenses were "'extraordinary' and warrant[ed] an additional payment beyond a set child support obligation."

In determining defendant's income, the judge considered the testimony of James DiGabriele, a certified forensic accountant retained by defendant. DiGabriele reallocated certain business costs such as rent and automobile expenses as shown on defendant's business records and determined that defendant's 2008 pre-tax income to be $90,066 ($70,434 after taxes).*fn2

On cross-examination, plaintiff's counsel challenged the methodology used by DiGabriele. Utilizing the figures contained on defendant's Case Information Statement (CIS), counsel elicited an estimate from DiGabriele of defendant's 2008 income based upon defendant's CIS when considered with the business records.

Q: . . . If there was an after tax expense of approximately $105,000 and a working person had to pay taxes above that in order to afford to pay that expense, approximately how much would have to be added to it to pay the expenses plus those categories of taxes?

A: Can I use my ...


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