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Licata v. Licata

Superior Court of New Jersey, Appellate Division

August 5, 2013

JAYNE LICATA, Plaintiff-Appellant,
JOSEPH J. LICATA, JR., Defendant-Respondent.


Submitted April 30, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0902-02.

Drazin and Warshaw, P.C., attorneys for appellant (Vincent L. Stripto, on the brief).

Brian P. Latimer, attorney for respondent.

Before Judges Hayden and Hoffman.


Plaintiff Jayne Licata appeals from the February 10, 2012 and March 5, 2012 Family Part orders deciding cross-motions regarding various post-judgment issues. For the reasons that follow, we affirm in part, and reverse and remand in part.


The parties were married in 1984 and had two children, a daughter born in 1991 and a son born in 1993. Their marriage was dissolved by a judgment of divorce from bed and board on March 24, 2003, which included a property settlement agreement (PSA) dated March 13, 2003. An absolute judgment of divorce was entered in 2007.

The PSA provided for plaintiff to receive support of $1, 000 per week as follows: $600 in permanent alimony, plus $300 in term alimony for four years, [1] plus $100 in child support for the two children.[2] The PSA provided that when the term alimony ended in 2007 the parties would adjust child support "to conform to the child support guidelines." The support was based upon defendant's income of $155, 000 and plaintiff's imputed income of $20, 800.

The parties did not recalculate child support in 2007 with plaintiff claiming that she was intimidated by defendant. In 2009, plaintiff retained an attorney, who obtained copies of defendant's tax returns; however, plaintiff took no further action at that time, without explanation.

Finally, in November 2011, plaintiff filed a motion to recalculate defendant's child support obligation. As part of the same application, plaintiff sought to compel defendant to provide copies of his 2009 and 2010 tax returns, an updated case information statement (CIS), and a copy of defendant's mortgage application for his current home. Plaintiff further requested the court appoint "a forensic accountant to undertake a cash flow analysis" for defendant's business, where plaintiff claimed that defendant was hiding money. Plaintiff also sought to compel defendant to pay his proportionate share of money she had spent for the children for the previous eight years.[3]

The judge ruled that the requests for the tax returns and CIS were moot as defendant provided them with his moving papers. The judge declined to order the production of defendant's mortgage application or appointment of a forensic accountant. The judge recalculated child support retroactive to the date plaintiff's motion was argued, but declined to make it retroactive to 2007, finding that plaintiff had been "less than diligent in seeking a modification" and had "slept on her rights." Given the length of time involved, the judge concluded it would be "unfair" to enforce the provision retroactively; he therefore ordered defendant to pay his share of the children's expenses according to the PSA going forward but declined to order any past payment, finding that plaintiff had been "lackadaisical" in pursuing her claim. Finally, the judge ordered the parties to equally share their daughter's unpaid college costs.


"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Moreover, the trial court has substantial discretion when determining child support awards. Gotlib v. Gotlib, 399 N.J.Super. 295, 308 (App. Div. 2008). The 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." Id. at 309 (quoting Foust v. Glaser, 340 N.J.Super. 312, 315-16 (App. Div. 2001)) (internal quotation marks omitted). "However, no special deference is accorded a trial judge's interpretation of the law." Connell v. Diehl, 397 N.J.Super. 477, 491 (App. Div.), certif. denied, 195 N.J. 518 (2008). If the court ignores applicable legal standards, the appellate court will reverse and remand. Gotlib, supra, 399 N.J.Super. at 309.

A party seeking modification of his or her child support obligation has the burden of demonstrating a change in circumstances warranting an adjustment. Lepis v. Lepis, 83 N.J. 139, 157 (1980). The decision must be made in accordance with the child support guidelines, when applicable, and the best interests of the children. See Caplan v. Caplan, 182 N.J. 250, 266 (2005); Terry v. Terry, 270 N.J.Super. 105, 121 (App. Div. 1994).

Plaintiff argues that the effective date of the increased child support should have been March 2007 when the term alimony ended. She contends that she sought enforcement of the PSA, not a retroactive modification of defendant's child support obligation.

Like the motion judge, we find plaintiff's argument on this point unpersuasive. Plaintiff's own certification acknowledges that she had concerns that if she sought to increase defendant's child support obligation, defendant might seek a reduction in his alimony obligation. The record indicates that plaintiff made a calculated decision to withhold the application under review, whether it is labeled a motion to increase child support or a motion for enforcement.

Laches is an equitable doctrine invoked to preclude delayed enforcement of a claim when the delay is prejudicial to the party against whom the claim is asserted. See L.V. v. R.S., 347 N.J.Super. 33, 39 (App. Div. 2002). "[T]he central issue is whether it is inequitable to permit the claim to be enforced [and] generally the change in conditions or relations of the parties coupled with the passage of time [is] the primary determinant." Lavin v. Bd. of Educ. of City of Hackensack, 90 N.J. 145, 152-53 (1982). Inequity is generally found where a party has been misled and harmed by the delay. Id. at 153. The record supports the judge's application of the doctrine under the circumstances of this case. Defendant established that he relied on plaintiff's non-action in planning and managing his own financial affairs.

We also agree with the trial court's rulings regarding plaintiff's requests for production of defendant's mortgage application and the appointment of a forensic accountant, as plaintiff failed to make a prima facie showing of entitlement to such relief. Crews v. Crews, 164 N.J. 11, 28 (2000) (quoting Lepis, supra, 83 N.J. at 157) ("'A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status.'").

Although the judge did not explain why he decided that the parties should equally share their daughter's unpaid college expenses, given the modest amount involved[4] and the adjusted incomes of the parties after payment and receipt of alimony and child support, his ruling accommodates reasonable expectations and the realities of the situation. We recognize the wide discretion trial judges have in addressing such applications and review them only for abuse of discretion or arbitrariness. Gotlib, supra, 399 N.J.Super. at 308-09. After considering the arguments presented on appeal in light of the record, we find no reason to disturb this determination.

We do agree with plaintiff, however, that the judge incorrectly calculated defendant's child support obligation. The court utilized defendant's 2010 weekly income of $1, 616, instead of his 2011 weekly income of $1, 756, and the court did not utilize plaintiff's weekly income figure of $704, but instead used a figure of $769, without explanation.

We further determine that the court mistakenly exercised its discretion in applying the child support guidelines to determine the support for the oldest child. R. 5:6A. "The child support guidelines may be applied in the court's discretion to support for students over [eighteen] years of age who commute to college." Child Support Guidelines, Pressler & Verneiro, Current N.J. Court Rules, Appendix IX-A to R. 5:6A: at 2559 (2013). Since the parties daughter was a full-time college student who did not commute to college, the child support guideline worksheet should have been utilized for the parties' son only. Further, we note that the worksheet incorrectly provided for each parent to receive an adjustment for "other parent deduction." Nothing in the record supported this credit for either party. Finally, the judge erred by not making the new child support order effective the date plaintiff filed her motion. See N.J.S.A. 2A:17-56.23a

On remand, several child support calculations are indicated. Initially, calculation of defendant's child support obligation for his son needs to be determined utilizing the child support guidelines. Second, the court must determine defendant's child support obligation for his daughter based upon the factors set forth in N.J.S.A. 2A:34-23a, which apply in those instances when the child support guidelines are not applicable Since we are advised that defendant's son is now a full-time college student in Pennsylvania the court will need to recalculate defendant's child support obligation for him based upon the factors set forth in NJSA 2A:34-23a effective Fall 2012 when the son began college

With the exception of the determination of the amount of child support and its effective date which we reverse and remand for further proceedings in accordance with this opinion we affirm

Affirmed in part and reversed and remanded in part

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