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Susan B. Mccrea v. Michael Mccrea


July 22, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County,*fn1 Docket No. FM-12-22-08G.

Per curiam.


Submitted June 22, 2011

Before Judges A. A. Rodriguez and Reisner.

This is the second time this matter comes before us. On October 22, 2009, we remanded to the Family Part a portion of an August 12, 2008 order awarding respondent Susan B. McCrae retroactive child support because the motion judge "did not state clearly her factual findings or correlate them with relevant legal conclusions." On remand, the judge made more specific findings and entered an order dated November 18, 2009. Michael McCrea appeals from that order. We affirm.

Michael and Susan were divorced in September 1999, after fourteen years of marriage. They had two girls and three boys. The three oldest children are emancipated, and the two youngest are now ages nineteen and seventeen. Although the final judgment of divorce granted Susan "primary residential custody" of the children, the parties had joint legal custody and "shared parenting time as the parties agree."

In 2002, Michael moved to modify prior custody orders. Judge Karen Cassidy issued a May 30, 2002 order, denying Michael's motion, but modifying the parties' agreed parenting time. The order provided that the daughters would reside with Susan; the parties would share parenting time with their sons; and Michael was to pay $147 per week for child support.

Four years later, Susan moved to modify the May 30, 2002 order to reflect that her sons resided primarily with her. She also sought to compel Michael to pay child support for their three sons in accordance with the child support guidelines. Before the matter was decided, venue was transferred to Middlesex County because Susan is a matrimonial attorney who regularly appears in the Union County Family Part.

After Susan filed the motion in Middlesex County, Judge Glenn Berman modified the May 30, 2002 order to reflect that the parties' sons lived with Susan. He did not order retroactive child support because he was "unable to determine the amount of [p]arenting time exercised by [Michael] as the conflicting affidavits of the parties raise[d] a number of [factual issues]." The judge appointed a guardian ad litem (GAL) to resolve this dispute and ordered each party to pay half of the GAL's fee.

Michael moved for reconsideration. On August 28, 2008 Judge Berman denied Michael's motion and ordered him to pay child support retroactive to the filing date of Susan's motion. The order also permitted Susan to seek retroactive child support from an earlier date after receipt of the GAL's report.

The GAL issued a report on August 29, 2008, finding that Michael had not had any parenting time with his oldest son since he was in the ninth grade. The GAL also found that the parties' second son had not spent any overnights with Michael since September 2007, and the parties' youngest son visited Michael "only . . . occasionally since May 2007. Moreover, none of the children had stayed overnight with Michael since March 2008.

Based on the GAL's report, Susan moved before a different judge for $27,235 in child support retroactive to May 29, 2007, and reimbursement of her share of the GAL's fee. The judge awarded Susan retroactive child support only to August 12, 2008, and ordered that each party would pay half of GAL's fee.

Following Susan's appeal, we reversed and remanded for more specific findings, but did not retain jurisdiction. McCrae v. McCrae, No. A-2307-08 (App. Div. October 22, 2009).

On remand, the judge made the following findings:

The quantity of overnights remained undefined and disparate, notwithstanding the GAL's report. However, the GAL's report clearly does substantiate [Susan's] claim that [Michael] was not exercising the parenting time that would have entitled him to a credit against the child support in the amount of $60 a week, based upon the 84 overnights per year that were a part of that Child Support Guidelines calculation.

The GAL report concluded after interviewing all the parties and the children, . . . that . . . "there appears to be no dispute from any party that [the oldest son] has not [had] any parenting time with his father," . . . "since he was in ninth grade. [The second son] has not spent any overnights with his father since September of 2007, and [the youngest son] went only occasionally since May 2007 with more . . . regular time during January 2008. None of the children have spent any overnights with their father since March 2008."

[Susan] . . . has demonstrated therefore that [Michael] . . . had not exercised regularly parenting time previously established and that had been used as a basis for the parenting time adjustment and the Child Support Guidelines as contemplated in the Appendix 9B of the Child Support Guidelines.

[Michael's] lack of regularity entitles [Susan] to the full child support award of $419 per week retroactive to the filing date, which is 5-29-2007.

On appeal, Michael contends that the judge "erred by awarding child support retroactively to May 29, 2007, a time when no child support order was in place, and by not providing findings of fact and conclusions of law to support the reversal of her prior decisions and her order dated November 18, 2009." Michael also contends it was error to grant Susan reimbursement of the GAL fee. We disagree.

The statement of reasons given by the judge based on the GAL's report adequately meets our remand directive. We afford great deference to "family court factfinding" because the Family Part judges "possess special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Therefore, we find no reason to reject either the judge's finding that the GAL's report was accurate and reliable, or her sound correlation of that report to the governing authorities.


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