RABBI STEPHEN C. LISTFIELD v. LOIS PAT ROBINSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5566-03T55566-03T5

RABBI STEPHEN C. LISTFIELD,

Plaintiff-Appellant,

v.

LOIS PAT ROBINSON,

Defendant-Respondent.

___________________________________

 

Submitted October 11, 2005 - Decided

Before Judges Lintner, Holston, Jr., and

Gilroy.

On Appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-1278-97.

Ellen C. Marshall, attorney for appellant.

Spinato, November, Conte & LaRocca, attorneys for respondent (Frank Imparato, on the brief).

PER CURIAM

Plaintiff, Stephen Listfield, appeals from an order modifying child support entered in the Family Part on April 30, 2004. For reasons expressed, we affirm.

Plaintiff and defendant, Lois Pat Robinson, were divorced by a dual judgment of divorce entered on October 8, 1999, after twelve years of marriage and two adopted children, Michael, born August 15, 1992, and Dana, born August 12, 1994. At time of divorce, Michael, who was seven years old, suffered from Fragile X Syndrome, a progressive disease which causes delays in motor and speech development, for which he received physical and occupational therapy. Dana, who was then five years old, had no known disability.

The judgment of divorce included terms of a property settlement agreement (PSA), which provided for joint legal custody, with defendant as the parent of primary residence; the establishment of an education fund; and payment of child support by plaintiff in the amount of $450 per week, allocated $300 for Michael and $150 for Dana. This support obligation did not include plaintiff's obligation for extraordinary expenses. The PSA also provided for the children's medical and dental care. Defendant was obligated to provide medical insurance coverage for the benefit of the children, and was responsible for ordinary medical and dental expenses incurred on behalf of the children. The parties were jointly and equally responsible for any "extraordinary medical or dental expense" incurred by the children. An "extraordinary expense" was defined as one "that is not contemplated or considered a common or 'normal' illness such as influenza, measles, etc." Defendant was responsible for "necessary and routine expenses" associated with Michael's therapy and treatment, and both parties were jointly and equally responsible if Michael suffered from a medical condition that was "beyond that which he is currently experiencing or other than that which is considered common or normal, whether or not it is related to Fragile[]X."

The defendant's Prudential Investment/Savings account was ordered to be maintained as an educational fund for the children, and used prudently with two-thirds towards Michael's expenses and one-third towards Dana's expenses. Plaintiff was to receive monthly statements on the account. The PSA provided that funds could be withdrawn from the account and used for "un[-]reimbursed medical[,] dental and therapy expenses of the children[,] . . . income taxes due on the account; educational expenses, including college; camp expenses; special education services, i.e. computer training; [and] any other expense" agreed to by the parties. The PSA required plaintiff's consent for withdrawals, with the exception that if plaintiff did not respond within a reasonable period, defendant was permitted to make a unilateral withdrawal.

At the time of divorce, defendant was employed as an Obstetrician/Gynecologist with an annual gross salary of $208,136 (net $181,046). Plaintiff was employed as a Rabbi by a New Jersey synagogue with an annual gross salary of $54,960, together with an annual non-taxable housing allowance of $18,000 and reimbursement benefits for insurance (up to $10,000), travel (up to $1,000), one-time moving expenses (up to $2,500), and other expenses for club memberships, etc. (up to $3,000). Plaintiff was also enrolled in a pension plan under which the synagogue contributed twenty percent of his base salary and housing allowance.

After divorce, defendant's gross salary fluctuated. She earned $180,000 in 2001; $215,000 in 2002; and $189,900 in 2003. In August 2002, plaintiff moved to Alabama and entered into a five-year agreement with a synagogue in that state. Under the terms of the agreement, his base salary would be no less than $127,000 in the first year; $131,880 in the second year; $136,955 in the third year; $142,233 in the fourth year; and $147,722 in the fifth year. Plaintiff also received a $50,000 interest-free loan towards the purchase of a home, which loan is to be forgiven if he stays with the synagogue for ten years. Lastly, plaintiff receives reimbursement benefits for memberships (up to $2,000), conventions and meetings ($2,000), a one-time moving expense, and health insurance.

Post-divorce, the children were diagnosed with additional health complications. In May 2003, Michael was diagnosed with Developmental Receptive and Expressive Language Disorder, and Attention Deficit Hyperactivity Disorder (ADHD). After an evaluation at the New York University Child Study Center (NYUCSC), it was recommended that he obtain individual tutoring in mathematics, occupational and physical therapy for gross and fine motor development, and social skills training with a psychologist. Dana also underwent an evaluation at the NYUCSC, where she was identified as "learning disabled," and was diagnosed with ADHD and Oppositional Defiance Disorder, along with difficulties in auditory perception, comprehension, expressive language and mathematics. It was recommended that she undergo social skills training and tutoring in mathematics. Because the children's school provides limited speech and occupational therapy, both children receive their therapy and tutoring outside of school.

On March 3, 2004, defendant filed a motion based on changed circumstances for an order compelling: an increase in child support; plaintiff to provide secondary insurance to cover the children's medical expenses; plaintiff to be responsible for paying fifty percent of the children's uncovered medical expenses; and counsel fees. Plaintiff cross-moved for an order directing that: the court appoint a therapeutic monitor for the children; defendant consult with plaintiff prior to withdrawing from the education fund; defendant deliver plaintiff his personal property; defendant serve plaintiff with copies of defendant's recent tax returns; and sanctions and counsel fees.

On April 16, 2004, Judge Lipton heard argument on the motions, and determined that there was a change in circumstances based on the children's additional health diagnoses, specifically Dana, who was not addressed in the PSA as having special medical needs at the time of the divorce. On April 30, 2004, after the parties submitted additional information to the judge as to a proposed increase in child support payments by plaintiff, Judge Lipton ordered that child support be increased from $450 per week to $900 per week. The order provides in pertinent part as follows:

2. The Defendant shall pay an increased amount of child support from $450.00 per week to $900.00 per week in accordance with the Child Support Guidelines for the benefit of the two un-emancipated children of the marriage. This weekly child support is inclusive of plaintiff's responsibility for childcare, the children's health insurance premium for coverage under defendant's policy, and the ordinary and extraordinary expenses necessary to address the special needs of both children as described in the defendant's submissions to the court and as set forth in the Guidelines Worksheet attached hereto.

3. The Defendant shall not have an obligation to submit invoices or receipts for extraordinary therapeutic expenses for the children to the Plaintiff for reimbursement, but shall pay such costs directly utilizing the child support as ordered herein.

4. The Plaintiff shall attempt to add the children to his health insurance policy as a supplement to the insurance provided by the Defendant, and shall provide documentation to the Defendant regarding the cost thereof within 20 days. If the cost is not greater than $200 per month, the plaintiff shall add the children to his health insurance policy and the cost of same shall be divided equally between the parties.

6. The Plaintiff's motion for the appointment of a therapeutic Monitor for Michael and Dana Listfield is denied.

7. The Plaintiff's motion with regard to notice about withdrawals from the educational fund is denied as same is provided for in the Judgment of Divorce.

8. The Defendant shall turn over to the Plaintiff within 30 days the bonds and other items belonging to the Plaintiff remaining in the marital residence.

On appeal, plaintiff argues: 1) defendant failed to demonstrate a change of circumstances sufficient to support a modification of child support and reallocation of medical insurance premiums; and 2) the judge erred in: a) her findings of fact; b) denying plaintiff's application for appointment of a therapeutic monitor; and c) in reapportioning the medical insurance coverage for the children.

Our review of the record in light of the issues presented convinces us that Judge Lipton's order is based on findings of fact that are adequately supported by the evidence and that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add the following comments on two of plaintiff's arguments.

Plaintiff contends that defendant failed to demonstrate a change of circumstances sufficient to warrant a modification of the terms of the PSA as incorporated in the dual judgment of divorce. We disagree.

It is well established that child support orders are subject to review and modification upon a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). Even after divorce, children are entitled to benefit from the good fortunes of their parents. W.S. v. X.Y., 290 N.J. Super. 534, 540 (App. Div. 1996). "'[C]hanged circumstances' are not limited in scope to events that were unforeseeable at the time of divorce," and may include, among other things, maturation of the children, increased cost of living, a change in the payor spouse's income, and subsequent illness or disability. W.S., supra, 290 N.J. Super. at 539; Chobot v. Chobot, 224 N.J. Super. 648, 653 (App. Div. 1988). When modifying an order of child support, the "guiding principle is the 'best interests of the children.'" Lepis, supra, 83 N.J. at 157. In order to make out a prima facie case for a change of circumstances, a party must demonstrate that the "child's needs have increased to an extent for which the original arrangement does not provide." Ibid.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). It is against these standards that we address plaintiff's argument.

Judge Lipton concluded that there is a sufficient change in circumstances to warrant a modification of child support based on the increase in medical needs of the two children. She determined that Dana did not suffer from any significant medical illness at time of divorce, but now has several medical conditions requiring treatment and therapy. In addition, the judge found that Michael has matured over the past four and one-half years, and recent evaluations indicate that he requires additional treatment and therapy for his medical conditions. We conclude there is substantial, credible evidence in the record supporting Judge Lipton's determinations and defer to her findings of fact and conclusions in the matter.

Plaintiff contends that the parties were aware that Dana had ADHD at time of divorce, and as such, her present need for therapy does not constitute a change in circumstances. Plaintiff's argument runs counter to the facts established in the record. Plaintiff does not cite any objective source such as a medical evaluation to corroborate the claim. Nor does the PSA address any special needs of Dana. The PSA only addressed Michael's medical needs. One could reasonably assume that, had Dana manifested ADHD at time of divorce, the parents would have provided for treatment and therapy for her the same as they did for Michael. Even assuming that Dana suffered from ADHD, or a condition similar thereto at time of divorce, she now also suffers from Oppositional Defiance Disorder. Clearly, there is a change in her medical condition.

Plaintiff also contends that there was no change in the children's medical expenses to support a finding of change of circumstances. Plaintiff contends that Michael's present Fragile X medical condition existed at time of divorce, and that plaintiff should not be responsible for payment of increase in ordinary medical expenses for treatment of the same. We are satisfied from a review of the record that Judge Lipton properly determined that Michael suffered from Fragile X at time of divorce, and that the diagnosis is not "new." Therefore, the judge determined that defendant was responsible for ordinary medical treatments for the Fragile X condition as required under the PSA. However, should treatment become "extraordinary" as defined in the PSA, then defendant may submit the statement for un-reimbursed medicals to plaintiff, and if he fails to respond, defendant may bring a motion under the PSA. The judge declined to rule on the issue of ordinary versus extraordinary inflictions, determining that defendant had not made out a claim for reimbursement at the time of the motion for what defendant perceived as extraordinary expenses, and that the parties should defer to the PSA.

Plaintiff argues next that the judge erred in calculating his current income, and that essentially there was no change in income between the date of divorce in 1999, and the hearing in 2004. The record shows otherwise.

Plaintiff's annual taxable salary at time of divorce was $54,960. In addition, plaintiff received an $18,000 lump sum non-taxable housing allowance, and was reimbursed for various additional expenses. Since the additional expenses were first paid from his taxed salary, and then reimbursed, those amounts should not be included as income. As such, plaintiff's total compensation at time of divorce was $72,960 ($54,960 + $18,000). At time of the post-judgment motion, plaintiff's annual salary was $131,880.

Judge Lipton used the figures of $131,880 and $72,960 in computing plaintiff's obligation at the time of post-judgment modification application, compared to his obligation at the time of divorce. We conclude that there is sufficient credible evidence to support that determination, and therefore, increased child support based on the almost two-fold increase between plaintiff's former and current incomes is appropriate.

Lastly, plaintiff argues that a plenary hearing was necessary because there was a genuine issue of material fact as to his income and the children's needs. We disagree. The opportunity to seek modification of a support award "need not include a hearing when the material facts are not in genuine dispute." Lepis, supra, 83 N.J. at 159. "[A] party must clearly demonstrate the existence of a genuine issue as to material fact before a hearing [becomes] necessary." Ibid. The court disregards conclusory allegations and focuses only on "documents[,] affidavits . . . [and] statements to which a party could testify." Ibid. The judge relied on plaintiff's contracts with the New Jersey and Alabama synagogues, which objectively delineated his annual earnings, and plaintiff presented no evidence indicating that either contract was invalid or inaccurate. Also, plaintiff conceded that both children have special needs. As plaintiff did not raise a genuine issue of material fact below, we conclude that a plenary hearing was not necessary.

 
Accordingly, we affirm.

(continued)

(continued)

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A-5566-03T5

December 22, 2005