On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0423-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Hayden.
In this matrimonial matter, defendant Andrew Busso, Jr. appeals, and plaintiff Lisa Busso cross-appeals, from various parts of the July 6 and 12, 2011 Family Part orders relating to child support and other issues. We affirm in part, reverse in part, and remand for further proceedings.
The parties were married in May 1990, and have a daughter, Mary,*fn1 born in 1996. A final judgment of divorce, entered on December 16, 1998, incorporated the parties' November 19, 1998 Property Settlement Agreement (PSA). The PSA required defendant to pay child support directly to plaintiff in the lump sum of $70,000 per year. The parties calculated the child support amount based on defendant's $400,000 yearly income, and plaintiff's $20,000 yearly imputed income. Although the PSA required defendant to pay child support by January 1 of each year, for thirteen years he paid it within the month of February, after he received his employment bonus.
The PSA also required defendant to maintain a $500,000 life insurance policy naming Mary as the beneficiary, and execute an authorization permitting plaintiff to obtain information about the policy from the insurer. Paragraphs 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9 of the PSA required the parties to, in part, confer with each other on matters relating to Mary's health, safety, education and general welfare; notify each other of any illness or other matters affecting Mary and her welfare; keep each other informed of Mary's whereabouts when with the other parent; exert reasonable efforts to maintain free and unhampered contact with Mary, foster a feeling of affection between Mary and each parent, and do nothing to estrange her from the other parent; consult with each other on Mary's education, religious training, summer camp selection, and non-emergent illnesses and operations; and advise the other parent of the address and telephone number where Mary could be reached during an extended vacation. In addition, each parent was entitled to information from Mary's medical providers, school and teachers.
Defendant re-married in 2000, and has four children from that marriage. Plaintiff remarried in 2002, and has no children from that marriage.
In April 2011, plaintiff filed a motion seeking various forms of relief. Pertinent to this appeal are her requests for an order increasing child support and compelling defendant to
(1) pay child support through the probation department; (2) execute an insurance authorization, as the PSA required; (3) execute documents for Mary's passport renewal; and (4) speak directly to her via telephone about issues regarding Mary, and prohibit his new wife from speaking to plaintiff about these issues.
Defendant filed a cross-motion also seeking various forms of relief. Pertinent to this appeal is his request for a recalculation of child support based on changed circumstances, taking into account an "other-dependent deduction" for his four children, and imputing income to plaintiff. Defendant also sought an order holding plaintiff in violation of litigant's rights for failing to comply with the PSA paragraphs regarding communications concerning Mary. He asserted that plaintiff failed to notify him of a health issue that required Mary to have surgery, Mary's Confirmation, her enrollment in private school, where plaintiff takes her on vacation, and plaintiff never provided Mary's school reports or other school information to him.
In a July 6, 2011 written opinion and order, the trial judge denied plaintiff's request to compel defendant to pay child support through the probation department. The judge found that the parties had "a unique child support payment arrangement" whereby defendant made a yearly payment directly to plaintiff around the time he received an annual employment bonus, and he had made the payments around February 15 each year "without fail from 1999 through 2011."
Without explanation, the judge denied plaintiff's request to compel defendant to speak directly to her via telephone about issues regarding Mary and prohibiting his wife from speaking to her about these issues, and to execute the insurance authorization. Also without explanation, the judge held that the passport issue had been resolved, and granted defendant's request to hold plaintiff in violation of litigant's rights for violating the PSA paragraphs regarding communications concerning Mary. The judge reserved decision on the child support issue, and ordered the parties to exchange certain limited discovery.
Thereafter, plaintiff submitted a letter brief arguing that the judge should increase child support to $100,000 per year because defendant's yearly income had substantially increased from the $400,000 utilized to calculate child support in November 1998,*fn2 while her $20,000 imputed yearly income had decreased below $20,000 per year.*fn3 Plaintiff also submitted a list of expenses for which she claimed the "additional support would be utilized."
Defendant countered that plaintiff was intentionally underemployed and the increase she sought included expenses the PSA required her to pay. He also argued that each of his children should be supported equally, the judge should consider his four children from his current marriage as well as Mary when determining an appropriate child support amount, and child support should be reduced to $40,000 per year.
In a July 12, 2011 order, the judge increased child support to $97,200 "payable once every year on or before March 1, based upon the rate of inflation from 1998 up to and including 2011 (Bureau of Labor Statistics web inflation calculator, found at http://www.bls.gov/data/inflation_calculator.htm)." The judge ordered defendant to pay interest of $81 per month and a sanction of $500 per day for any payment made after March 1. Without explanation, the judge denied all other relief the parties sought, including defendant's request for an "other dependent deduction" for his four children, and to impute income to plaintiff. This appeal and cross-appeal followed.
On appeal, defendant raises the following contentions:
THE FAMILY PART'S DECISION IS NOT SUPPORTED BY ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW.
THE FAMILY PART'S USE OF THE RATE OF INFLATION AS THE SOLE MEANS BY WHICH IT RECALCULATED DEFENDANT'S CHILD SUPPORT OBLIGATION WAS AN ABUSE OF DISCRETION.
THE FAMILY PART'S FAILURE TO CONSIDER PLAINTIFF'S INCOME IN THE RECALCULATION OF DEFENDANT'S CHILD SUPPORT ...