July 22, 2013
JOSEPH STRAILE, Plaintiff-Respondent,
RUTH HANLEY, Defendant-Appellant/ Cross-Respondent, and JOSEPH STRAILE and DORIS STRAILE, Respondents/ Cross-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1306-00.
Proskurchenko Law Group, LLC, attorneys for appellant/cross-respondent (Ksenia V. Proskurchenko, on the brief).
Ellen Jo Gold, attorney for respondent. Robert Ricci, Jr., attorney for respondents/ cross-appellants.
Before Judges Parrillo and Maven.
Defendant/appellant Ruth Hanley (Hanley) and respondents/cross-appellants, Joseph Straile, Jr. and Doris Straile (the grandparents), appeal the Chancery Division, Family Part order dated November 29, 2010, that recalculated Hanley's child support obligation payable to the grandparents, established the arrears payment and tax dependency exemption, and denied grandparents' counsel fees, among other things. We affirm, in part, and remand for the trial court to reconsider the child support calculations and the appropriate incomes and credits to be applied for each party.
The relevant facts follow. Joseph Straile (the father) and Hanley divorced on March 19, 2001. In their Final Judgment of Divorce, the grandparents received joint legal and primary physical custody of the parties' three children, Amber, Alice, and James. Hanley moved to Florida while the father lived with the grandparents and the children in New Jersey. Pursuant to the Property Settlement Agreement, the father and Hanley consented to make weekly contributions of child support to the grandparents. Hanley was obligated to pay $75 per week and the father paid $203 per week. These obligations were not determined pursuant to the New Jersey Child Support Guidelines. Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A at pp. 2541-64 (2013). In October 2003, the court accepted their Consent Order increasing Hanley's child support obligation to the grandparents in the amount of $125 per week.
Around July 2009, Hanley moved back to New Jersey from Florida. It is undisputed that Alice, the middle child, began living with Hanley in September 2009.
On June 14, 2011, the grandparents filed a Notice of Motion to Enforce Litigant's Rights to enforce Hanley's child support order, establish the amount of arrears owed by her and set a payment towards those arrears, and to begin future child support payments through the probation department. On August 25, 2011, Hanley filed a cross-motion seeking to: (1) modify the child support obligation for Amber and James commensurate with her income and ability to pay; (2) adjust her arrearages; (3) award her physical custody of Alice; (4) establish a parenting time schedule between her and James; (5) direct the father to pay child support for Alice; (6) permit her to claim Alice and James as dependency exemptions on her tax returns; and (7) grant any any other equitable relief. The father responded with a certification.
Following oral argument, the judge rendered an oral opinion on November 29, 2011, followed by a written order, in which he: (1) established Hanley's arrearages owed to the grandparents at $22, 000 to be paid via income withholding through the probation department at the rate of $100 per week; (2) recalculated Hanley and the father's respective child support obligations to the grandparents at $81 from Hanley and $163 from the father; (3) modified custody regarding Alice to continue joint legal custody with the grandparents but awarding Hanley physical custody of the child; (5) established that Hanley shall have parenting time with James; (6) allowed Hanley to claim Alice as a dependency exemption, while the grandparents retained Amber and James as exemptions until James is the only unemancipated child, at which time the parties would alternate; (7) ordered that the father would pay $149 weekly child support for Alice to Hanley via income withholding through the probation department; and (8) denied the grandparents' request for counsel fees.
After the judge declined to consider Hanley's motion for clarification, she subsequently filed this appeal and argues:
I. THE TRIAL COURT ERRED IN FIXING ARREARS OWED TO THE . . . GRANDPARENTS IN THE FULL AMOUNT FOR THREE CHILDREN, NOTWITHSTANDING THE CHANGE OF RESIDENTIAL CUSTODY OF [ALICE], WHO HAS BEEN LIVING WITH [HANLEY] SINCE SEPTEMBER SINCE 2009, BUT FOR WHOM THE . . . GRANDPARENTS HAVE BEEN ALLEGEDLY BEEN RECEIVING CHILD SUPPORT FROM [FATHER].
II. THE TRIAL COURT ERRED IN SETTING THE AMOUNT TO BE PAID TOWARDS ARREARS AT $100.00 PER WEEK NOTWITHSTANDING CLEAR EVIDENCE DEMONSTRATING [HANLEY'S] INABILITY TO PAY SUCH AMOUNT.
III.THE TRIAL COURT ERRED IN SETTING THE CHILD SUPPORT AMOUNT TO BE PAID BY [HANLEY] TO THE . . . GRANDPARENTS FOR [AMBER AND JAMES], THE TWO CHILDREN WHO CONTINUE TO RESIDE WITH THEM, USING INCOME FIGURES OTHER [THAN] THOSE PRESCRIBED BY THE NEW JERSEY COURT RULES.
IV. THE TRIAL COURT ERRED IN DENYING [HANLEY'S] REQUEST TO CLAIM [ALICE AND JAMES], THE REMAINING CHILDREN ELIGIBLE TO BE CLAIMED, AS TAX DEPENDENCY EXEMPTIONS NOTWITHSTANDING THAT SHE WAS DENIED THAT OPPORTUNITY THROUGHOUT THE CHILDREN'S LIVES.
The grandparents filed a cross-appeal. They argue that:
I. THE TRIAL COURT'S REFUSAL TO RETROACTIVELY MODIFY SUPPORT BASED UPON [ALICE'S] CHANGE IN CUSTODY WAS PROPER AND WITHING THE COURT'S SOUND DISCRETION.
A. Retroactive Modification of Child Support.
B. Change in Residence Does Not Automatically Terminate or Alter a Child Support Obligation.
C. Even if a Retroactive Modification Were Appropriate, [Hanley's] Calculations of Arrears Are Erroneous.
D. All Equitable Factors Support the Trial Court's Decision Not to Retroactively Reduce Child Support.
E. [Hanley's] Request For a $333.33 Credit Per Month is Factually and Legally Incorrect.
F. [Amber] is Not Emancipated.
II. THE TRIAL COURT'S CONSIDERATION OF THE . . . GRANDPARENT'S INCOME WAS REVERSIBLE ERROR AND SEVERELY UNDER-ESTIMATED THE CHILD SUPPORT OBLIGATION OF [HANLEY].
III.THE TRIAL COURT ERRED BY FAILING TO AWARD THE . . . GRANDPARENTS COUNSEL FEES AND COSTS IN WHAT WAS ESSENTIALLY AN ENFORCEMENT APPLICATION.
IV. THE TRIAL COURT SHOULD HAVE REQUIRED A MORE SUBSTANTIAL AND AGGRESSIVE PAYMENT TOWARD SUPPORT ARREARS.
"The general rule is that the trial court findings are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. But if a judge makes a discretionary decision under a misconception of the applicable law, the appellate court need not give the usual deference. The court, instead, must "adjudicate the controversy in light of the applicable law to avoid a manifest denial of justice." State v. Steele, 92 N.J.Super. 498, 507 (App. Div. 1966).
Considering the claims raised and the applicable legal principles, we conclude that only issue III raised by Hanley and issues II and III raised by the grandparents warrant comment. R. 2:11-3(e)(1)(E). We add only brief comments on the other issues.
Hanley avers that the de facto change in Alice's custody in 2009 requires child support and arrearages retroactive to that date. This argument is without merit. The trial judge correctly rejected this claim and determined that the anti-retroactive child support modification statute, N.J.S.A. 2A:17-56.23A, bars retroactive modification except with respect to the date in which the motion seeking a modification is filed. Hanley did not seek to modify the custody and child support orders until she filed her cross-motion on August 25, 2011. Therefore, the court did not abuse its discretion in rejecting Hanley's request for recalculation of support or for a credit against the arrears since 2009. We discern no reason to disturb that determination.
Furthermore, we find no error in the court's establishment of the arrears Hanley owed to the grandparents from June 2008 through August 2011, based on her admitted failure to pay child support during that time, and the order for $100 per week payment.
We now focus our attention on the parties' respective claims that the court erred in recalculating child support. The child support obligations were recalculated in response to Hanley's motion and the father's request for equalization of support paid to Hanley in this case and his other child's mother. The grandparents had not sought to amend the child support obligations of the parents. Nevertheless, the court reviewed the parties' case information statements for their respective incomes to use in the child support calculations. The court determined Hanley's weekly gross income to be $426, the father's weekly gross income to be $1461 and the income for the grandparents to be $2712. Using the sole parenting worksheet, Hanley's child support obligation to the grandparents was calculated at $81 per week for two children. The father's obligation to his parents, considering the Other Dependent Deduction for his other child and credit for a prior child support order, was $163 per week.
The grandparents question whether their incomes should have been applied to the child support calculations where both parents are working and able to support their children. The grandparents argue that this case is distinguishable from Savoie v. Savoie, 245 N.J.Super. 1, 3 (App. Div. 1990), in which child support was calculated using the incomes of the two custodial grandparents, where the parents were both institutionalized and presumably unable to contribute to child support. In response, Hanley relies on Tash v. Tash, 353 N.J.Super. 94 (App. Div. 2002), and argues that the grandparents have assumed an in loco parentis role and should be partially responsible for the support of the children.
Further, Hanley argues that the court used incorrect weekly income for her; she should have received the Other Dependent Deduction for Alice; and received credit for parenting time or received the benefit of the Shared Parenting Worksheet.
"'The trial court has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Jacoby v. Jacoby, 427 N.J.Super. 109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J.Super. 312, 315-16 (App. Div. 2001)). "'Of course, the exercise of this discretion is not limitless[, ]' and remains guided by the law and principles of equity." Ibid. (alteration in original) (quoting Steneken v. Steneken, 367 N.J.Super. 427, 434 (App. Div. 2004), aff'd in part and modified in part, 183 N.J. 290, 873 (2005)). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). However, "we are not bound by '[a] trial court's interpretation of the law' and do not defer to legal consequences drawn from established facts." Id. at 116-17 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
While a grandparent has no legal obligation to support a grandchild, exceptions to this general rule are imposed when the grandparent obtains legal custody, guardianship or acts in loco parentis. A.N. ex rel. S.N. v. S.M., 333 N.J.Super. 566, 572 (App. Div.), certif. denied, 166 N.J. 606 (2000); Savoie v. Savoie, 245 N.J.Super. 1, 4 (App. Div. 1990). Although the child support guidelines refer to income of the "parents, " a grandparent is subject to the guidelines in these unusual circumstances. Tash, supra, 353 N.J.Super. at 100-01.
In Tash, the paternal grandfather and his wife took physical custody of the defendant's three children after the children's mother died while the defendant father was serving a prison sentence. Id. at 97. After defendant's release, the grandparents sought to compel defendant to pay child support, and the hearing judge calculated an order after imputing income to the defendant. Id. at 97-99. We held that the trial judge erred by failing to consider the earnings of the grandfather and his wife in calculating child support under the guidelines. Id. at 103. We also opined:
[W]e are constrained to reverse the order of child support due to the failure of the hearing judge to consider the earnings of plaintiffs as well as his exclusion of social security death benefits from consideration under the child support guidelines.
The child support guidelines basic child support amounts set forth in Appendix IX-F represent estimates of parental expenditures on children in intact households and are the marginal (extra) cost of raising a child at various total-income levels. See Presser, supra, Appendix IX-A [at] pp. [2242.] Accordingly, total household net income must be considered, regardless of a duty to support so that actual cost of raising the child can be best estimated. The guidelines are predicated on an "income share basis" and assume a household overhead component which may be of significance if others pay all or part of the household expenses where a child resides.
As stated in the comments to the guidelines, "[a]t the foundation of the child support guidelines are estimates of what parents in intact families spend on their children." [Ibid.] That amount, termed the Basic Child Support Obligation, is the presumed financial need for the child. Accordingly, the economic underpinning of the guidelines supports an approach to consider the total income of plaintiffs and defendant and then derive the obligation of the father as a percentage of the whole. Put another way, the hearing judge must determine the standard of well-being and marginal cost for the children in the household of the grandparents and the extent to which the father can fulfill his obligation within the confines of his income as determined by the court.
[Tash, supra, 353 N.J.Super. at 100-01.]
Here the grandparents had physical custody of the children for ten years and assumed a significant role in their lives and livelihood. The children have become accustomed to a certain lifestyle due to the loving generosity of their grandparents. In accordance with the guiding principles of the child support guidelines, the higher the combined household income, the greater the level of support to be provided to the children. Given the extent of the grandparents' largess towards the children, it may be appropriate to determine that they have been in loco parentis and apply their income to the calculations.
On the other hand, while we generally affirm the applicability of the guidelines to instances where the grandparents are legal custodians, we also note that there are circumstances when a court may modify or even disregard the child support guidelines. Here, the father and Hanley are the natural parents, and unlike the parents in Savoie and Tash, who were either deceased or incapable of supporting their children, both parents here are gainfully employed, willing and able to contribute to the children's well-being. As these are their children, arguably, only their incomes should be used to create an obligation, hypothetically, between themselves. Upon proper analysis of the unique circumstances in this case, N.J.S.A. 9:17-53(e) gives discretion to the court to deviate after consideration of certain relevant factors, and the guidelines themselves state that a departure from the guidelines is justified by good cause. Rule 5:6A; Pressler & Verniero, supra, Appendix IX-A at pp. 2541.
In reviewing the record below, the Family Court judge did not set forth in his decision how the guidelines were applicable under this case. Nor did the judge reconcile the facts of this case with Savoie or Tash to explain the basis for using the grandparents' income in the calculations.
Further, following our review of the child support worksheets, it is apparent that, in addition to the matters claimed by Hanley, certain permissible credits and deductions, that may be applicable to the grandparents and the father, were not applied in the calculation. For example, to the extent grandfather's income is used, the calculations may include his mandatory retirement contributions, extraordinary expenses for private school, and health insurance premiums for the children.
On the record provided, our ability to fully assess the accuracy of the trial court's child support determination is hampered by the court's failure to explain its calculation methodology and legal bases in the opinion. Judges must make findings of fact and conclusions of law "in all actions tried without a jury, [and] on every motion decided by a written order that is appealable as of right." R. 1:7-4. This requires judges to articulate "specific findings of fact and conclusions of law." Pressler & Verniero, supra, comment 1 on R. 1:7-4. "Naked conclusions are insufficient. A judge must fully and specifically articulate findings of fact and conclusions of law." Heinl v. Heinl, 287 N.J.Super. 337, 347 (App. Div. 1996). If sufficiently clear factual findings are absent from the record, we will reverse and remand to the trial court for additional findings. See id. at 353; see also Curtis v. Finneran, 83 N.J. 563, 570-71 (1980).
Having reviewed the record in light of these contentions and the applicable law, we reverse the orders awarding child support and conclude that the parties are entitled to a remand for recalculation of child support consistent to address the legal bases for the inclusion of the grandparents' income, and for the application of permissible credits and deduction, consistent with the child support guidelines and this opinion. The court may, in its discretion, re-open the motion hearing in order to create a more complete record, to enable it to make the necessary findings of fact and conclusions of law with respect to the motions decided by it.
Next, we turn to the grandparents' contention that the judge erred in denying to award counsel fees. An award of counsel fees in a family action rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c). Such exercise of discretion will not be disturbed in the absence of a showing of abuse. Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970).
Here, the grandparents sought counsel fees in the amount of $1768.75 related to their Motion to Enforce Litigant's Rights. The judge noted that counsel satisfied Rule 4:42-9(a)(1) by providing an affidavit of services. Upon analyzing the factors in accordance with Rule 5:3-5(c) and determining that the fees were reasonable and justifiable, the court determined that the grandparents were the most financially comfortable of all the parties.
While consideration of an award of counsel fees for bringing any enforcement action is always within the court's authority, and subject to its sound discretion, see Boardman v. Boardman, 314 N.J.Super. 340, 349 (App. Div. 1998), we conclude that the judge's denial of counsel fees to the grandparents was not arbitrary, capricious or unreasonable. "In determining whether a counsel fee should be imposed, the court must look at, " among other things, "the requesting party's need[ and] the other party's ability to pay." Ibid. (citations omitted). Given that the court had reviewed the parties' case information statements and had a basis for understanding their respective financial circumstances, the determination that the grandparents had the ability to bear their own legal cost was sound.
Affirmed in part, reversed and remanded in part. We do not retain jurisdiction.