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Monica Tuman v. Michael Tuman


January 21, 2011


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

Per curiam.


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 calculator?

THE COURT: Oh, certainly.

A: Around $131,000.

In his written opinion, the judge noted he relied more heavily on DiGabriele's cross-examination, stating that "a more accurate and credible amount would be $130,000, as established by Plaintiff's attorney during cross examination of the expert."

After addressing the first two remanded questions, the trial judge found that the expenses were reasonable because the expenses "were or should have been contemplated by the parties in their marriage." He specifically noted that both plaintiff and defendant had celebrated their bat and bar mitzvahs, respectively, and that defendant should have reasonably expected to assist in contributing to the children's religious school training. He observed that the gifts for other children were not contemplated at the time of the PSA. Further, the judge found that the children attended day camp during the marriage and that continued attendance after the divorce was also reasonable.

Finally, the trial judge addressed the fourth remanded question - defendant's proportional share of the extraordinary expenses. Modifying his earlier decision that defendant would be responsible for seventy-five percent of the expenses, the judge considered that plaintiff's mother would continue to contribute towards the extraordinary expenses. The judge ordered defendant to pay one-third of cost of Hebrew School, one-third of the cost of summer camp, $54*fn3 for each bar or bat mitzvah gift, and one-third of the previous and future costs of laptops for the children. He denied plaintiff's request for $1,500 per year for various extracurricular activities, finding that the expenses (registration fees, sports equipment and lessons) were contemplated within the current child support obligation. He also denied counsel fees. The judge thereafter denied both parties' motions for reconsideration.

This appeal followed.

On appeal, defendant asserts that the judge erred in that he: 1) improperly utilized a change in circumstances analysis; 2) failed to apply the child support guidelines; 3) improperly fixed defendant's income at $130,000 without requisite findings of fact; 4) excluded evidence regarding plaintiff's assets and finances; 5) improperly admitted evidence from plaintiff's witnesses and misapplied the law as to third-party contributions; 6) misapplied the law as to extraordinary expenses; and 7) improperly permitted the submission of additional proofs and allowing plaintiff to call defendant as a hostile witness.

In broadest terms, the scope of our remand requires an analysis of the nature of the expenses and the parameters of the agreed upon child support. In addition, to determine whether defendant is able to assume a portion of additional expenses, if any, the judge was required to consider his income and expenses. In sum, while the analysis may consider many of the same elements as would be relevant to a change of circumstances analysis, the ultimate findings and conclusions must fit within the parameters of our mandate on remand.

The parties here eschewed the use of the child support guidelines. Unfortunately, at the time of the entry of the divorce, there was not a full dialogue on the record to explain the circumstances for such deviation, but on our remand, we did not consider the guidelines as the dispositive mechanism or basis for resolving the issues on appeal. See Appendix IX-A(22) (mandating that a negotiated child support agreement state the "reason that the stipulated amount differs from the guidelines-based award"). Child Support Guidelines, Pressler and Veniero, Current N.J. Court Rules, Appendix IX-A(22) to R. 5:6A at 2450 (2011).

Defendant's reliance on Caplan v. Caplan, 182 N.J. 250 (2005) is misplaced. Caplan does recommend using the child support guidelines, noting that "these guidelines apply to all actions to establish and modify child support awards. . . ." Caplan, supra, 182 N.J. at 259 (emphasis added). Defendant conflates the current motion for payment of extraordinary expenses with a motion for modification of child support. This is neither a guidelines case nor do the extant issues require application of the guidelines. Our remand was specific and directed solely at the issue of extraordinary expenses while recognizing that any decision in that regard will include elements of analysis that may parallel a modification analysis. Our review of Judge Troiano's opinion leads us to conclude that he, correctly, did not perform a change in circumstances analysis and again, correctly, need not have and did not engage in a guidelines analysis. That was not his charge.

In determining whether the expenses in question were extraordinary, the judge made a critical finding. He noted:

Extraordinary expenses in this instance must involve a comparison of what existed at the time of the divorce and what plaintiff's mother and grandfather subsidized up until this point. This Court must also consider what has been defined to be "extraordinary" in case law. Plaintiff's requests are largely consistent with what existed at the time of the divorce. The differences are that five years have elapsed, the defendant's business has grown, and the plaintiff's mother wishes to phase down her contributions to these extraordinary expenses. Plaintiff's 2003 Case Information Statement included camp, private schooling, children's lessons, and gifts. Defendant's argument that these expenses were considered in the $550.00 per week child support obligation set in 2003 is not credible, however, because at the time of the divorce, all three children were not involved in camp, private schooling, and after-school activities. [J] was 5, [R] was 3, and [L] only 1 and plaintiff's mother was primarily responsible. While these expenses did exist, to some degree, at the time the current child support was set, the Court is not convinced that the parties intended the current child support to be an all-inclusive figure. Additionally, with respect to recent case law, these expenses are "extraordinary" and warrant an additional payment beyond a set child support obligation. Hebrew school, summer camp, after school activities, and even required school materials (in this case, the computer), may warrant an additional contribution.

We are satisfied that he made a correct determination of the nature and extent of the extraordinary expenses and complied with our mandate in regard to this issue.

Defendant argues that the trial court failed to make specific findings of fact as to defendant's revenues, and any such findings were incorrect.

Certainly, in considering an allocation of the extraordinary expenses, the trial judge was obligated to determine defendant's ability to pay for such expenses. In this regard, defendant retained DiGabriele, a forensic accountant. Based, in part, on his testimony, the trial court found that defendant's business income had increased from $577,051 in 2005 to $750,301 in 2008. The witness also identified defendant's personal expenses and related expenses and relying on this testimony, the judge concluded that defendant's net income was $90,066. This amount represented a net figure. When asked to extrapolate and opine a gross figure before taxes, the expert concluded that the amount would be $130,000. This is the finding made by the judge. As we previously noted, he concluded that "a more accurate and credible amount would be $130,000, as established by Plaintiff's attorney during cross examination of the expert." We find no error in that conclusion.

The judge also concluded that the identified extraordinary expenses were reasonable and fixed the appropriate amount of contribution. He did so after an extended plenary hearing, at which time he heard and saw the witnesses and assessed their credibility and the value of their testimony.

A basic tenet of appellate jurisprudence is that a trial court's factual findings "should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008). See also State v. Chun, 194 N.J. 54, 88-89 (2008); State v. Arthur, 184 N.J. 307, 320 (2005); In re Taylor, 158 N.J. 644, 656 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Findings of fact made by trial judge "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms, supra, 65 N.J. at 484. Further, we must give substantial deference to the trial judge's discretion in evidentiary rulings, and these decisions are reviewed under an abuse of discretion standard. See Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Most important, we will afford appropriate deference where the trial judge has had the unique opportunity to see and hear the witnesses testify and has made credibility determinations based on those observations. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

These are the circumstances here. The judge made critical findings and credibility determinations, and we will not intervene in that regard.

We have carefully reviewed defendant's additional arguments and we conclude that they are without merit. R. 2:11-3(e)(1)(E).

We affirm substantially for the reasons set forth in Judge Troiano's thorough and thoughtful opinion of July 24, 2009.


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