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Patricia Chalow, N/K/A Patricia Spence v. Walter Guy Chalow

April 29, 2011

PATRICIA CHALOW, N/K/A PATRICIA SPENCE, PLAINTIFF-RESPONDENT,
v.
WALTER GUY CHALOW, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-174-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 18, 2010

Before Judges Grall, C.L. Miniman and LeWinn.

In this post-judgment matrimonial matter, defendant appeals from an order increasing his child support obligation and awarding counsel and expert fees to plaintiff; he also appeals from an order denying his motion for reconsideration. For the reasons that follow, we remand for recalculation of defendant's income; we affirm the counsel fee award.

The parties were married in July 1988 and divorced in January 1995. They have two children, a son born in 1989 and a daughter born in 1993. The property settlement agreement (PSA) incorporated into their final judgment of divorce designated plaintiff as the children's parent of primary residence and afforded defendant overnight visitation every other weekend as well as summer and holiday parenting time according to a schedule set forth in the PSA. Defendant's child support obligation for the two children was set at $150 per week; the PSA noted this figure was not "based on the child support guidelines because both parties are self-employed, their incomes fluctuate, and cannot be precisely determined." Defendant is the proprietor of W.G. Chalow Electrical Contractor, Inc., and plaintiff works out of her home as a "credit searcher."

In May 2007, defendant filed a motion seeking various forms of relief which are not the subject of this appeal, such as (1) designating himself as the children's parent of primary residence, (2) terminating his child support obligation effective September 1, 2006, (3) eliminating his arrears, and (4) obligating plaintiff to pay child support to him. Plaintiff filed a cross-motion seeking "full discovery of . . . [d]efendant's business and its income for purposes of calculation of support"; she also sought counsel fees.

In the ensuing two years, the parties filed various motions relating to the children's private school and college expenses, discovery of their respective earnings, the retention of accounting experts, and counsel fees. A plenary hearing was held on four days between May 8, 2008 and May 4, 2009; the principal issue was the determination of the parties' incomes in order to calculate child support.

The judge issued a written opinion in support of his order of June 30, 2009. He determined that defendant's annual income was $153,199, and plaintiff's was $71,313. Based upon these incomes, defendant's child support obligation was set at $267 per week, pursuant to the child support guidelines. The judge further ordered defendant to pay plaintiff $10,000 in counsel fees and $6440 in fees for her accounting expert.

On appeal, defendant challenges various aspects of the judge's calculations of the parties' incomes; he also contends the judge erred in awarding counsel and expert fees to plaintiff.

Defendant raises four challenges to the trial judge's income determinations. With respect to his own income, defendant contends the judge erred in (1) imputing an additional $20,000 in income based upon the determination that there was "an unreasonable amount of fuel charges for the listed property and the way the business is done"; (2) adding back and double counting certain credit card charges; and (3) imputing an additional $21,755 in income as a "write[-]off [of] dues and other charges" connected to the Sand Barrens Club and Driftwood RV Center. With respect to plaintiff's income, defendant contends the judge erred in using only her 2006 income instead of averaging her income from 2002 through 2006.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, we will give special deference to the factual findings of a family court because of its "expertise in the field of domestic relations." Ibid. With these standards in mind, we turn to defendant's contentions.

The child support guidelines provide specific instructions for judges determining income "from self-employment or the operation of a business." Child Support Guidelines, Pressler Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2473 (2011) (hereinafter Guidelines). The following provisions are particularly pertinent and instructive with respect to the issues raised here:

b. In general, income and expenses from self-employment or the operation of a business should be carefully reviewed to determine an appropriate level of gross income that is available to the parent to pay a child support obligation. In most cases, this amount ...


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