March 2, 2012
STUART LANTZ, PLAINTIFF-APPELLANT,
IVY LANTZ, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-586-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 28, 2011
Before Judges Grall and Skillman.
This appeal is from a post-judgment order in a divorce case that addresses plaintiff Stuart Lantz's obligations for child support, college expenses, alimony, and life insurance and authorizes his former wife, defendant Ivy Lantz, to collect arrears from plaintiff's NFS/IRA account. The order was entered on October 28, 2010 on remand from this court. We remanded for a limited purpose, that is reconsideration of the child support award entered on October 24, 2008 and an order denying plaintiff's application for modification of that child support entered on May 27, 2009. Lantz v. Lantz, No. A-1622-08 (App. Div. May 24, 2010).*fn1
On remand, the judge reduced child support. In addition, and despite the fact that neither party had filed any motion seeking additional relief, the judge considered and rejected plaintiff's requests for reduction of his alimony obligation and share of college expenses. The judge also granted plaintiff's request to reduce the death benefit on his life insurance, fixed child support arrears and entered, sua sponte, an order freezing plaintiff's NFS/IRA account and authorizing defendant to collect arrears from that account. Plaintiff appeals; defendant has not filed a cross-appeal.
The procedural history and factual background of this case is set forth in our prior unpublished opinion. Accordingly, we limit our discussion to the matters essential to our decision.
Plaintiff and defendant married in 1985, and they have a son and daughter. Id. at 2. They divorced in 2003, and the judgment incorporates a property settlement agreement which addressed all financial issues. Ibid. Based on the parties' respective earning histories, they agreed to impute annual income of $170,000 to plaintiff and $25,000 to defendant. At that time, plaintiff was employed by Lincoln National. Id. at 3.
Plaintiff's support obligations under the settlement agreement include permanent alimony, child support and a contribution to college expenses. College expenses are broadly defined to include room and board, whether on or off campus, tuition, fees, books and four round trips to and from New Jersey and the college. The agreement also recognizes that plaintiff "may be entitled to a reduction in child support" if a child attends college away from home.
Under the agreement, plaintiff's monthly child support obligation for two children was $1591 and his monthly alimony obligation was $3750, annually $19,092 for child support and $45,000 for alimony, which was about thirty-eight percent of his gross imputed income. During the years following divorce, plaintiff remarried, left his employer, started a business and repeatedly sought reduction of his support obligations due to decline in his income. The judge determined plaintiff was earning $108,000 in July 2005 and $90,000 in October 2008, but the judge never indicated that these earnings were at a level commensurate with plaintiff's capacity to earn. The judge reduced annual alimony to $22,500 in July 2005 and to $18,900 in October 2008, and he denied further modification on May 27, 2009. In the May 2009 order, the judge directed plaintiff to file biweekly reports with the judge detailing his income and his efforts to find more gainful employment. We affirmed the determinations on alimony reflected in the October 2008 and May 2009 orders on the prior appeal.
In contrast to the dramatic reduction in alimony, the judge slightly increased child support in the order of October 24, 2008. The order sets total child support at $1600 monthly, effective November 1, 2008, allocating $800 per month for each child. It also provides for expiration of child support for the parties' son effective May 31, 2009, when he was to complete college, and for payment of the son's child support in a lump sum to be deducted from plaintiff's share of the proceeds from the sale of the marital residence. In contrast, the $800 support for the daughter, who started college in Florida in August 2008, id. at 4, was to be paid periodically when due. On May 27, 2009, the judge again denied reduction of child support. Consequently, plaintiff was left with a total support obligation, exclusive of college expenses, at about forty-two percent of his $90,000 income until May 31, 2009 and about thirty-two percent of income thereafter.
On the prior appeal, we reversed the last two child support determinations and remanded for reconsideration, primarily because the $800 monthly support for each child attending college away from home did not account for the fact that the children were not living at home. We also noted that the total amount of child support had not been reduced since entry of the judgment. In addition, we indicated that plaintiff was "free to make an appropriate application to the trial judge" for adjustment of his contribution to college expenses.
Prior to the hearing on remand, the judge wrote to the parties stating he had scheduled the matter "for resolution of any potential reduction in [plaintiff's] child support obligation" and directing the parties to file case information statements, 2008 and 2009 tax returns and recent pay stubs. As noted above, neither party filed a motion requesting additional relief. Plaintiff submitted a 2009 tax return showing income of $60,572 and adjusted gross income, after alimony and self-employment tax, of $45,654. Nothing in this record indicates that plaintiff produced any evidence complying with the May 27, 2009 order, which obligated him to submit biweekly reports on his income and search for more gainful employment.*fn2 Defendant's 2009 tax return reflected earned income of $41,702. At that time, plaintiff's contribution to his daughter's college expenses were $10,000.
On remand, the judge twice noted plaintiff's failure to present evidence of his efforts to earn at his potential. Adjusting for the daughter's attendance at college in Florida, the judge directed $567 monthly child support, an amount annualized to provide $400 during the seven months the child was attending college and $800 for the remaining months. In doing so, the judge appropriately noted the inapplicability of the child support guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to Rule 5:6A at 2513 (2012), and he determined that plaintiff's disproportionate contribution to college expenses warranted this adjustment of child support, which had never been based on the guidelines. Based on the actual amount of defendant's two-thirds share of college expenses, however, the judge determined that no further modification of support was warranted. While not expressly stated, it is apparent that the judge denied further modification because of plaintiff's failure to establish that his tax return reflected his earning potential.
The judge made this modification of child support effective September 1, 2010. He gave no explanation for selecting that effective date, which is stated in paragraph three of the October 28, 2010 order. Plaintiff's motion for reduction of child support that was before the judge on our remand was filed on July 14, 2008.
The order of October 28, 2010 includes the following provisions addressing matters not included in the remand: paragraph one and two respectively deny plaintiff's oral application to modify alimony and the ratio for allocation of college expenses; paragraph four authorizes plaintiff to reduce the death benefit on his life insurance; paragraph five fixes arrears for child support and alimony at $20,800, and for college expenses at $24,000 for the youngest child and $5500 for the oldest child; and paragraph six allows defendant to collect arrears from plaintiff's NFS/IRA account.
On appeal plaintiff raises these issues for our consideration:
I. THE TRIAL COURT ERRED BY IGNORING A SUBSTANTIAL PORTION OF WHAT THE APPELLATE DIVISION TOLD HIM TO RECONSIDER UPON REMAND PURSUANT TO THE APPELLATE DIVISION RULING DATED MAY 24, 2010.
II. THE CHANGE OF CIRCUMSTANCES SINCE THE TIME OF THE EXECUTION OF THE PROPERTY SETTLEMENT AGREEMENT REQUIRES A REDUCTION IN APPELLANT'S SUPPORT OBLIGATIONS AND OTHER OBLIGATIONS IMPOSED BY THE PROPERTY SETTLEMENT AGREEMENT. THE REDUCTION IN THE CHILD SUPPORT OBLIGATION SHOULD BE INFORMED BY, IF NOT BOUND BY, THE CHILD SUPPORT GUIDELINES.
III. THE CHANGE IN CIRCUMSTANCES REQUIRES A SUBSTANTIAL REDUCTION IN APPELLANT'S OBLIGATION TO CONTRIBUTE TOWARDS THE PARTIES' DAUGHTER'S COLLEGE COSTS.
IV. EVEN IF APPELLANT OWES RESPONDENT FOR COLLEGE EXPENSES FOR HIS DAUGHTER, APPELLANT'S IRA ACCOUNT CANNOT BE LEVIED ON TO SATISFY ANY SUCH OBLIGATION.
Based on our consideration of the arguments presented, this court's prior decision and the record on appeal, we conclude that plaintiff's objections to all determinations other than the modification of child support and the authorization for defendant to invade his NFS/IRA account lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). It suffices to note that plaintiff, who did not file a motion to request relief previously denied and not remanded by this court, is in no position to object to the judge's denial of relief on those points. A judge has the discretion to grant relief on a matter presented by oral motion, but generally a written notice of motion that is supported by proper evidential material is required. R. 1:6-2; R. 1:6-6.
For that reason and in the absence of any apparent abuse of discretion, we affirm paragraphs one and two of the order.
We turn to consider paragraph three of the order, which reduces child support. A trial judge's determinations about alimony and child support are reviewed for abuse of discretion and not disturbed if they have reasonable support in the record. See Caplan v. Caplan, 182 N.J. 250, 271 (2005) (discussing a discretionary decision concerning child support where guidelines are inapplicable); Storey v. Storey, 373 N.J. Super. 464, 479, (App. Div. 2004) (discussing alimony). We have previously discounted objections to imputation of income relevant to child support where the party seeking relief has failed to provide essential information. Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002).
Applying the foregoing standards and considering the evidential materials in the record, we cannot conclude that the judge's determination to limit the adjustment of child support to a one-half reduction of the $800 monthly support for each child based on the time the child spends away at college was an abuse of discretion. Where the judge erred was in fashioning an order conforming with his findings and legal reasoning.
Having determined that the support should be reduced by one-half during the months the child was not living at home, the judge failed to appreciate that modification of the support for son and daughter was required. Under the court's order of October 24, 2008, the son's monthly child support was set at $800 from November 1, 2008 to May 31, 2009. During that period the parties' son was attending college out of state, but the judge neglected to modify that support, which as noted above was to be paid in a lump sum. Similarly, daughter was attending college out of state. Although she entered college in August 2008, one month after the motion for modification at issue was filed, the judge modified her support effective September 1, 2010. Because the resulting order conflicts with the judge's stated rationale and is unsupported by any evidence in the record, we vacate paragraph three of the order and remand for reduction of the child support amount for both son and daughter and for a modification of support for daughter retroactive to August 2008 and for son retroactive to July 14, 2008.
We recognize that the parties' son was attending college out of state prior to July 14, 2008. But in the circumstances of this case, child support may not be reduced retroactively to a date earlier than the date on which the motion seeking reduction was filed. N.J.S.A. 2A:17--56.23a.
To clarify the scope of the remand on paragraph three of the order, we stress that we have found no abuse of discretion in the judge's approach to the appropriate modification of child support, a reduction by one-half for the months spent away at college. Our opinion should not be understood to foreclose the judge assigned from considering whether seven months per year reasonably approximates the period each child was living outside defendant's home.*fn3
Our determination that the retroactive date must be modified also requires us to vacate the provision of paragraph five of the order fixing arrears for child support and alimony. The total amount of arrears will obviously be affected by the modification of child support, and it must be adjusted, by way of offset or credit against arrears, to recognize any overpayment that was included in the lump sum payment of son's child support for the period between November 1, 2008 and May 31, 2009.
Paragraph six of the October 28, 2010 order, which authorizes defendant to collect arrears from plaintiff's NFS/IRA account, also must be vacated. We reach that conclusion because the judge granted this relief on his own motion and without notice or opportunity for either party to brief the issue. On appeal, plaintiff contends the judge failed to address statutes that he asserts bar this relief. 26 U.S.C.A. § 414; N.J.S.A. 25:2-1. In vacating this provision of the order for lack of notice and full opportunity to be heard, we express no opinion on the merits and do not foreclose the judge from considering this form of relief on proper application by defendant to enforce her rights under the controlling support orders.
Affirmed in part, reversed in part and remanded for reconsideration of paragraphs three and five of the October 28, 2010 order in conformity with this opinion.