CHRISTOPHER R. MCCOULLOUGH v. KAREN MCCOULLOUGH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6545-03T16545-03T1

CHRISTOPHER R. MCCOULLOUGH,

Plaintiff-Appellant,

v.

KAREN MCCOULLOUGH,

Defendant-Respondent.

____________________________________________________

 

Argued July 12, 2005 - Decided

Before Judges Fuentes and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County,

FM-12-2605-00E.

Arlene Green argued the cause for appellant.

Timothy J. Dey argued the cause for respondent.

PER CURIAM

Plaintiff Christopher McCoullough appeals from the order of the Family Part granting defendant Karen McCoullough's motion to increase the amount of his child support responsibilities for two children (ages seven and sixteen), and from the denial of plaintiff's cross-motion asking that the court: (1) impute income to defendant; (2) allow plaintiff to use one or both of the tax exemptions for the children on his tax return; and (3) grant joint physical custody of both children. We affirm.

The parties married on May 18, 1996. Four months later, in September 1996, plaintiff adopted defendant's then eight year old son from a prior relationship, Ronnie. On February 12, 1997, a daughter, Kindra, was born of the marriage.

Plaintiff filed a complaint for divorce on June 6, 2000. On May 18, 2001, a Final Judgment of Divorce, which incorporated the parties' Property Settlement Agreement (PSA), was entered. The PSA provided that plaintiff would pay child support in the amount of $51 per week. At that time, he was employed as an investment representative at Prudential Financial Company earning $30,940 a year. Defendant was working as a sales representative for an automotive transmission distribution company, ATC Distribution Group, Inc., earning $68,484 per year.

The PSA provides, "Wife shall be permitted to claim the minor children of the marriage as exemptions (deductions) for federal and state income tax purposes." Additionally, the parties agreed to joint legal custody of both children with defendant's home being the principal residence of the children.

In June 2002, defendant was laid off by ATC Distribution Group, Inc. subject to the terms of a non-compete agreement. Subsequently, she obtained other employment which ceased when that company closed. She is currently employed by Merry Maids cleaning houses for approximately $300 per week.

In May 2004, defendant filed a motion for an increase in child support. Plaintiff cross-moved, asking the Court to impute income to defendant, requesting permission to claim one of the children as a tax exemption and seeking joint physical custody of the children.

Judge Joseph L. Rea heard the parties' motions and found: (1) defendant was not underemployed requiring imputation of income; (2) plaintiff's prior child support obligation of $51 per week was "extremely low" and the guidelines called for him to now pay $193 per week; (3) full joint custody causing the children to reside with each parent on an alternating week schedule was unwarranted; (4) the teen multiplier should be used to calculate plaintiff's support obligations to Ronnie; and (5) the two child tax exemptions were already worked out in the original settlement agreement. Plaintiff now appeals the court's decision.

Ordinarily, the scope of our review of a trial court's findings of fact 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). An appellate court should not disturb the trial judge's factual findings and legal conclusions unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412. Additionally, family courts are given greater deference since they have special jurisdiction and expertise in family matters. Ibid.

It is settled law in New Jersey that "when a parent, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that parent to provide for the child's needs." Caplan v. Caplan, 182 N.J. 250, 268 (2005). In Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998), we held that essential to a finding of underemployment is the belief that the obligator is purposefully earning less than he or she is able. Judge Rea found that defendant was doing everything she possibly could in her situation. Defendant was laid-off from her job, then obtained alternate employment but that company closed and now she is employed at a significantly lower salary. After reviewing the facts and questioning defendant, the judge determined that she was not acting in bad faith or intentionally being underemployed.

Further, plaintiff failed to show any bad faith or intention by defendant to be underemployed. In fact, the history of the relations after the divorce does not show any antagonism or strife. The record simply does not support plaintiff's contention. Judge Rea, using his family law expertise, astutely observed and plaintiff's counsel agreed that he had an "extremely low" child support obligation for a long time. Thus, it was not improper for the judge, in accordance with the guidelines, to increase plaintiff's child support obligation to $193 per week.

The guidelines set forth in Appendix IX of the New Jersey Court Rules allow a teen multiplier to be used to take into account the "higher level of expenditures for older children" (those aged twelve through seventeen) that were not "already received during the child's early years." Appendix IX-A 17. See R. 5:6A directing that the guidelines shall be applied when an application to establish or modify child support is considered by the court. The child support guidelines overestimate a child's needs in the early years and underestimate a child's needs in later years. The guidelines instruct that awards entered before a child turns six years old "should not be adjusted later for age since the higher expenditures for older children were already received during the child's early years." The Rules do not require, as plaintiff suggests, that the teen multiplier only be used when the child support is first ordered.

Here, Ronnie was twelve when plaintiff first began paying child support. The initial amount of child support was consensual and determined in accordance with the guidelines. Using the teen multiplier from age sixteen through eighteen will not overcompensate the child.

Next, plaintiff asserts the judge's decision to deny his request to have the children stay with him every other week was not adequately supported and that a plenary hearing was warranted. Instead, the parties were referred to mediation and as a result, plaintiff's visitation rights were expanded. Although the judge remarked that a psychologist's opinions in a different case questioned the effect of truly shared physical custody, as we understand the situation, the judge merely relied on his experience and expertise in denying alternating weeks of physical custody. The judge's determination was well within his discretion. The best interests of the child control. Pascale v. Pascale, 140 N.J. 583, 595-97 (1995); Wist v. Wist, 101 N.J. 509, 513-14 (1986); P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999). Plaintiff is not precluded from seeking increased parenting time.

Plaintiff argues that the PSA should be modified as to the tax exemptions for the children. We disagree. In Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995), we held that settlement agreements are favored and will be enforced when fair and equitable. When agreements stem from a divorce, the law is more relaxed and judges are provided with greater discretion to interpret such agreements. Ibid. Again, Judge Rea found plaintiff to have underpaid child support for years and saw no reason to modify the PSA into which the parties had freely entered. We find no unfairness or inequity that would cause us to disturb the trial judge's refusal to change this aspect of the PSA.

The challenged rulings are within the trial court's discretion and are adequately supported by the facts and the rules of law.

 
Affirmed.

(continued)

(continued)

7

A-6545-03T1

September 20, 2005