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Joel A. Friedman v. Michelle P. Friedman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 10, 2011

JOEL A. FRIEDMAN, PLAINTIFF-RESPONDENT,
v.
MICHELLE P. FRIEDMAN, (N/K/A FRANK), DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-0495-00. Michelle P.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 3, 2011

Before Judges Graves and Messano.

Defendant Michelle P. Friedman, n/k/a Frank, appeals from the Family Part's order of August 31, 2010 (the August order) resulting from a hearing conducted upon our remand. Friedman v. Freidman, No. A-6381-08 (App. Div. June 21, 2010). The August order set plaintiff Joel Friedman's child support obligation in the weekly amount of $192, effective November 1, 2008. On September 22, 2010, the parties executed a consent order (the consent order) wherein they agreed to share "joint legal custody" of their two children, with plaintiff serving as the parent of primary residence. Pursuant to paragraph thirteen of the consent order, "the issue of plaintiff's parenting time . . . during the defendant's parental week[] [wa]s reserved pending a hearing to be scheduled by the court." The consent order contained other provisions that are not relevant to the issues presented on appeal.

The parties appeared before the judge on October 4, 2010 for a plenary hearing, after which the judge entered an order setting defendant's child support obligation to plaintiff at $4 per week, effective September 22, 2010 (the October order).*fn1 As per its terms, "The Child Support Guidelines -- Sole Parenting Worksheet used in determining [the support amount] [wa]s attached to th[e] order."

Defendant's notice of appeal, filed on October 4, sought review of the August order only; however, we granted her subsequent motion to amend her notice of appeal to also include the October order.

Before us, defendant raises the following issues:

POINT 1

THE COURT ERRED IN USING THE CHILD SUPPORT WITHHOLDING CHART WHEN CALCULATING PLAINTIFF'S (A SELF[-]EMPLOYED ATTORNEY) TAX LIABILITY, INSTEAD OF ACTUAL TAXES PAID AS SHOWN ON HIS TAX RETURN.

POINT 2 THE COURT ERRED IN THE SELECTION AND USE OF PLAINTIFF'S INCOME AS SHOWN ON HIS TAX RETURNS.

POINT 3 THE COURT ERRED WHEN SETTING NOVEMBER 1, 2008 AS THE RETROACTIVE DATE TO WHICH PLAINTIFF'S CHILD SUPPORT OBLIGATION WAS TO BE ADJUSTED.

POINT 4 THE COURT IMPROPERLY APPLIED Wunsch-Deffler

v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009) TO RETROACTIVELY DECREASE CHILD SUPPORT.

POINT 5 THE COURT ERRED WHEN, CONTRARY TO STATUTE AND CASE LAW, IT RETROACTIVELY REDUCED CHILD SUPPORT.

POINT 6 THE Wunsch-Deffler ADJUSTMENT IS CONTRARY TO PUBLIC POLICY WHEN THERE IS A GREAT DISPARITY IN THE INCOMES OF THE PARTIES.

POINT 7 THE COURT ERRED IN ITS OCTOBER 4, 2010 ORDER BY USING THE SOLE PARENTING WORKSHEET INSTEAD OF THE SHARED PARENTING WORKSHEET.

We have considered these arguments in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

We recount some of the history that underlies this appeal and its predecessor. By consent order dated July 6, 2004, effective June 16, 2004, and based upon the child support Guidelines, plaintiff was obliged to pay $245 per week to support the couple's two children. Friedman, supra, slip op. at

2. In January 2009, defendant moved for "'a recalculation of plaintiff's child support obligation based upon the income as reported in his 2007 tax return.'" Ibid. After a plenary hearing, plaintiff was ordered to produce his 2008 tax return. Ibid. On June 17, 2009, the judge entered an order decreasing plaintiff's child support obligation to $235 per week, retroactive to November 1, 2008. Id. at 2-3. Defendant's motion for reconsideration was denied without oral argument. Id. at 3.

Defendant appealed. However, we did not reach the merits of defendant's "arguments addressed to the use of inappropriate figures within the meaning of the Guidelines, . . . the amount set . . . and . . . the retroactive date for the decreased amount," id. at 3, because the judge had failed to "state any reasons for the figures he used." Id. at 8. We "remanded for further proceedings and argument on the motion for reconsideration and for a further statement of reasons for the decision to be rendered." Id. at 9.

On remand, the parties were both represented by counsel. The judge conducted oral argument on July 22, 2010, reserved decision, and indicated he would "do the recalculations" and "the child support guidelines w[ould] be attached to . . . th[e] order." A written statement of reasons and the Guidelines worksheet utilized to calculate plaintiff's support obligations are attached to the August order. We turn, therefore, to defendant's specific arguments.

In Points 1 and 2, defendant challenges the judge's worksheet calculations regarding the amount of taxes withheld and plaintiff's income. She essentially claims that because plaintiff is self-employed, the judge underestimated his income and overestimated his withholdings, thus resulting in plaintiff's net taxable income being undervalued.

The judge utilized plaintiff's 2008 tax return, the most recent available return, to complete the Guidelines worksheet on remand. He properly calculated plaintiff's gross weekly income to be $3088. Defendant essentially concedes this was the correct figure. The other arguments made in Point 2 to the contrary are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

However, in completing the worksheet, the judge utilized $837 per week as the amount of taxes withheld from plaintiff's income. In his written decision, the judge failed to explain how he arrived at this figure. Defendant claims the judge erroneously utilized the "Combined Tax Withholding Tables for Use With the Support Guidelines," see Pressler & Verniero, Current N.J. Court Rules, Appendix IX-H to R. 5:6A at 2514 (2011), instead of considering plaintiff's actual tax liability. But, that does not appear to be the case.

Plaintiff contends the issue was decided by us in the prior appeal and should not be revisited. But, as noted, we did not address the merits of plaintiff's argument in our prior opinion.

The $837 figure appears to be derived not from plaintiff's 2008 income tax return, but, rather from his 2007 return. The total amount of federal and state taxes that plaintiff paid in 2007, as reflected on his 2008 return, was appreciably less than the taxes he paid in 2006, as reflected on his 2007 return. Thus, without the benefit of further explanation, it would appear that the judge may have mistakenly used tax returns from two different years to compute plaintiff's net income.

A remand is also necessary because of the issue defendant raises in Point 7. In computing the support obligations based upon changes in the custody status of the children as evidenced by the consent order, the judge erroneously utilized a sole parenting worksheet. Both parties concede this was error. Moreover, plaintiff notes that the worksheet that accompanied the October order listed his gross weekly taxable income as $3808, not $3088, the income reflected on plaintiff's 2008 tax return and the amount which the judge utilized in calculating child support for purposes of the August order.

We therefore are compelled to remand the matter to the trial court for further consideration and explanation.

In Points 3 and 5, defendant challenges the effective date for modification of plaintiff's support obligations, i.e., November 1, 2008. In his written decision accompanying the August order, the judge explained that although defendant filed a motion in January 2008 to compel plaintiff to turn over his 2007 tax return, she did not file a motion for modification until January 2009. The judge noted that retroactive modification was limited to the filing date of defendant's motion. See N.J.S.A. 2A:17-56.23a ("No . . . portion[] of an order which [is] allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification."). However, the judge also noted that defendant could have sought modification earlier if "[p]laintiff had provided her with his income tax return." The judge adopted November 1, 2008 as the effective date of modification since "that [wa]s when [d]efendant received [p]laintiff's tax return."

Defendant argues that the judge should have selected the January 3, 2008 date because that is when she moved for production of plaintiff's tax information. That argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). However, once the judge determined that plaintiff's support obligation would be decreased -- not increased as plaintiff believed it would when she filed the motion in January 2009 -- we fail to see why he concluded it was more equitable to penalize defendant by ordering the modification be given retroactive effect beyond the date defendant actually filed her motion. During the initial hearings in 2009, when neither side knew the result of the judge's recalculations, plaintiff conceded that November 1, 2008 was appropriate because of the difficulty in providing defendant with his tax information. But, plaintiff never sought a downward modification of his support in the first place.

After conducting the remand required above, the judge shall set the retroactive date for any modification. If he chooses a date other than the filing of defendant's motion for modification in January 2009, he shall explain why that date is fair and equitable under all the circumstances, and why it is justified in light of the anti-retroactivity provisions of N.J.S.A. 2A:17-56.23a.

In Points 4 and 6, defendant argues that the judge erred in applying any adjustments pursuant to Wunsch-Deffler, supra. We need not explain the rationale that underlies modification of child support obligations calculated under the guidelines "to account for the parties' shared parenting time and the fact that both parties [a]re responsible for their children's controlled expenses." Wunsch-Deffler, supra, 406 N.J. Super. at 508 (citing Benisch v. Benisch, 347 N.J. Super. 393, 400 (App. Div. 2002)). In the statement of reasons that accompanied the August order, the judge determined that plaintiff and defendant "have joint legal custody of both children, with shared residential custody providing for alternate weeks with each parent." Plaintiff "exercise[d] 183 overnights and . . . [d]efendant exercise[d] 182 overnights." Citing extensively to WunschDeffler and Benisch, the judge concluded that "[s]ince the parties share custody[,] the controlled expenses . . . should be backed out" of the support obligation of plaintiff.

The judge then applied Wunsch-Deffler's procedure:

When the parties share an equal number of overnights with the child, the following three-step procedure should be used to adjust the paying parent's child support obligation to account for the fact that both parties are responsible for paying the child's "controlled expenses" during their parenting time. This procedure will "back out" the 25% in "assumed" controlled expenses from the paying parent's child support obligation. The first step is to multiply the Basic Child Support Amount determined in Line 9 of the Child Support Guidelines--Shared Parenting Worksheet by the payor's income share. Second, this figure should be multiplied by 25%, which represents the controlled expenses assumed by the Guidelines. Third, the product of this calculation is then subtracted from the paying parent's "Adjusted Basic CS Amount," as reflected on Line 15 of the Worksheet.

The result reached is the payor's child support obligation and takes into account that both parties, and not just the party receiving child support, pay controlled expenses for the child during their equally shared parenting time. [Wunsch-Deffler, supra, 406 N.J. Super. at 509.]

Defendant argues the judge erred because: 1) WunschDeffler was not decided until after she moved to compel production of plaintiff's tax returns in January 2008; 2) plaintiff's financial submissions did not support any adjustment; 3) any adjustment, if appropriate, should be effective only from the date of the August order; and 4) such adjustments are contrary to public policy. Plaintiff counters by arguing the adjustment was properly applied and "furthers public policy."

Defendant's contentions lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). As to her first and last arguments, it suffices to say that we recognized in 2002, well before defendant sought any modification of plaintiff's child support obligations, the efficacy and salutary policy purposes of adjustments to the Guidelines in such situations. See Benisch, supra, 347 N.J. Super. at 399-400.

Defendant argues that plaintiff's financial submissions do not warrant the 25% adjustment made by the judge. However, "[t]he trial court has substantial discretion in making a child support award." Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001). The judge in this case acted within his discretionary authority to employ a calculation tailored to the circumstances of the parties' custody arrangement and we have no occasion to tamper with that exercise of principled discretion.*fn2

We also see no reason to limit the adjustment prospectively from August 31, 2010. On remand, the judge was deciding the recalculation of plaintiff's child support obligations based upon defendant's application. The factors justifying an adjustment under Benisch and Wunsch-Deffler seemingly existed when defendant filed her application because the judge included those factual findings in the statement of reasons that accompanied the August order. Defendant has not argued otherwise. We generally defer to the Family Part judge's fact finding and expertise, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), and we do so in this case.

In short, we remand the matter to the motion judge for reconsideration and clarification of the child support award contained in the August order. The judge shall also reconsider the effective date of any modification of child support that may result on remand. We reverse the October order and remand to the judge with instructions to use the proper income figure for plaintiff and proper guidelines worksheet.

We do not retain jurisdiction.


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