April 14, 2011
DIONE ADAMS, PLAINTIFF-APPELLANT,
VERLAINE NOELSAINT, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-936-05F.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges Ashrafi and Nugent.
Plaintiff Dione Adams appeals from an order of the Family Part dated January 13, 2010, which denied her motion for reconsideration of earlier orders granting a credit to defendant Verlaine Noelsaint against his child support payments. We affirm.
The parties were married in 1999 and divorced in 2007. Their dispute involves work-related child care expenses for the parties' only child together, a son born in 2002. On May 16, 2006, the family court entered a pendente lite order establishing joint legal custody and granting primary residential custody to Adams. By agreement, and as confirmed by a sole parenting worksheet that showed almost equal net income of the two parties, Noelsaint was ordered to pay $60 per week in child support directly to Adams and an additional $160 per week directly to the child care provider, which was not identified in that order.
After the divorce, by order dated May 9, 2008, the family court identified St. Joseph Catholic School in Maplewood as the child care provider, but it ended Noelsaint's direct payments to the school as of June 13, 2008. The order directed the Union County Probation Division to commence collecting child support of $220 per week from Noelsaint. The order further stated that reasons for the court's decision were placed on the record orally on the date of the order, but Adams has not provided a transcript. There is no evidence that the May 9, 2008 order was the result of any arrears in payments of Noelsaint's obligations. Noelsaint contends that he had made regular timely payments to Adams and to St. Joseph School as directed by the May 16, 2006 order.
Shortly after Probation took control of the child support payments, Adams sought the court's approval to remove the child from St. Joseph School and to enroll him instead in public school. Noelsaint objected. By order dated August 12, 2008, the family court denied Adams's motion, directed that the child continue in catholic school for the 2008-09 school year, and ordered the parties to attend mediation on the issue of future schooling. The parties attended one session of mediation but were not able to resolve their disagreement about schooling.
After the 2008-09 school year, Adams unilaterally withdrew the boy from St. Joseph School and enrolled him in public school beginning in September 2009. On October 16, 2009, Adams moved for an increase in child support. Noelsaint filed a cross-motion on October 29, 2009, for credit for private school tuition that he had paid since the end of the previous school year. The court heard argument and entered an order on November 16, 2009, indicating that it would recalculate child support upon submission of financial documentation by the parties and granting Noelsaint a credit of $640 for overpayment of private school tuition from July through October 2009.
On November 30, 2009, the court corrected the latter credit to $160 per week for a total of $2,560 for that same time period. Also on November 30, 2009, the court entered a new child support order adjusting Noelsaint's payments to $146 per week, retroactive to October 16, 2009. Included in that calculation through use of child support worksheets was $37 per week for net work-related child care expenses of Adams.
Both parties moved for reconsideration of the November 30, 2009 orders. By order dated January 13, 2010, the court denied both parties' motions.
On appeal, Adams argues the court erred in granting too much credit on Noelsaint's child support account based on enrollment in public school. She contends she was required to pay for daycare expenses at a summer camp in 2009, and the credit to Noelsaint's child support account was overstated by $1,280 because it included credit for July and August 2009. Noelsaint responds that the payments for St. Joseph School actually ended in May 2009 and that he should also have received credit for his payments in June 2009.
Trial courts are permitted to exercise discretion in awarding financial support in a matrimonial action. Pascale v. Pascale, 140 N.J. 583, 594 (1995). "If consistent with the law, such an award 'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)). "'[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence . . .' in the record." Id. at 316 (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Thus, the standard of review from the trial court's support rulings is deferential on factual determinations and conclusions derived from those facts.
The family court's January 13, 2010 order stated that the credit of $2,560 was: based upon the fact that the parties' 5/16/06 and 5/9/08 orders each allocated, by consent, $160.00 per week of defendant's obligation to 'the child care provider,' which, in the 5/9/08 order was stated to be St. Joseph Catholic School in Maplewood, N.J. As of the date defendant filed his 10/29/09 cross-motion, he had paid $160.00 per week for sixteen (16) weeks during which time the parties' son had not been attending St. Joseph's.
There was sufficient credible evidence in the record to support the court's finding. See Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div. 1992). Although Adams argued in her motion for reconsideration that their son had attended summer camp in July and August 2009, she did not present evidence to the trial court establishing the cost of that camp, and she did not show that expenses other than for private school tuition were considered in the court's prior orders addressing child support and work-related child-care expenses.
In their appellate appendices, both parties have included evidence that was not part of the record before the family court when the motions were submitted. Adams has attached a July 15, 2010 letter from the Boys & Girls Clubs stating that their son attended camp during the summer of 2009 at a cost of $185 per week. Noelsaint has attached an August 23, 2010 account statement from St. Joseph School showing a total tuition paid for the 2008-09 school year of $3,950, which is substantially less than the $6,400 or more that Noelsaint was required to pay to Adams during the same time period for child care expenses. If Noelsaint's account statement is accurate, Adams received more than enough from the $160 weekly child care payments through the end of June 2009 to cover the summer camp expense.
But neither of the evidentiary documents provided to us on appeal was available to the trial court. Therefore, neither is properly part of the record available for review. See R. 2:5-4(a) ("The record on appeal shall consist of all papers on file in the court or courts or agencies below . . . ."); Middle Dep't Inspection Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (1977), certif. denied, 76 N.J. 234 (1978); see also Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div.), certif. denied, 149 N.J. 409 (1997) ("appellate review is confined to the record made in the trial court, and appellate courts will not consider evidence submitted on appeal that was not in the record before the trial court") (internal citations omitted). On the incomplete record presented by the parties' motions, we find no error in the family court's ruling that a portion of Noelsaint's child support payments was intended to pay for catholic school tuition and that expense was no longer incurred after the spring of 2009.
Adams also contends that the family court's order double-counted a credit of $74 for two weeks of October 2009 following adjustment of the child support amount payable by Noelsaint. The court's November 30, 2009 child support order included a sole parenting worksheet in accordance with Rule 5:6A. See Child Support Guidelines, Pressler & Verniero Current N.J. Court Rules, Appendix IX-C to Rule 5:6A (2011). Based on the parties' relative incomes, and net work-related child care expense with the boy in public school, the court ordered Noelsaint to pay $146 per week in child support.
The November 30, 2009 orders also granted Noelsaint a credit of $74 per week for the six weeks from the filing of Adams's motion to adjust child support, October 16, 2009, through the date of the order November 30, 2009. This amount totaled $444. Adams argues the credit is overstated by $148 because the court already credited Noelsaint for the entire amount of his school tuition payment of $160 per week through the end of October 2009.
In its January 13, 2010 order, however, the court explained that the credit for St. Joseph School as the care provider was for a specific period of sixteen weeks, not to the end of October 2009. Therefore, the $74 credit for overpayment of child support from October 16 to 30, 2009, was not a double-counting of overpayments.
Finally, Adams argues that the court failed to account for her expenses for a dependent older child. The motion papers filed by Adams in the family court did not provide information about that child. Generally, issues not raised in the trial court will not be considered on appeal unless they affect the jurisdiction of the trial court or concern matters of substantial public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In sum, we find no error in the family court's rulings regarding the child support credits granted to Noelsaint.
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