TRACY A. ROSE v. CYNTHIA ROSE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0051-05T50051-05T5

TRACY A. ROSE,

Plaintiff-Respondent,

v.

CYNTHIA A. ROSE,

Defendant-Appellant.

_________________________________________________

 

Submitted March 27, 2006 - Decided April 18, 2006

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-883-93-W.

Kenneth J. Fortier, attorney for appellant.

LePore Luizzi, attorneys for respondent (Joseph G. LePore, of counsel and on the brief).

PER CURIAM

Defendant Cynthia Rose (wife) has appealed orders entered in post-judgment matrimonial proceedings that resulted in a reduction of the child support obligation of plaintiff Tracy A. Rose (husband). She argues that the judge should not have modified the child support obligation and certainly not without obtaining adequate financial information from the husband and, also, without exploring all relevant circumstances at a plenary hearing. Although the trial judge correctly found a changed circumstance which warranted a re-examination of the child support obligation, we reverse because the judge mistakenly failed to require the submission of the husband's current and past case information statements and other relevant information, and because the judge mistakenly failed to apply the factors contained in N.J.S.A. 2A:34-23(a).

I

The parties were married on July 23, 1983. Two children were born of the marriage -- Michael (on August 24, 1984) and Nicole (on June 5, 1988).

The parties' marriage was dissolved by a judgment entered on January 26, 1998. The judgment incorporated the terms of a property settlement agreement (PSA) prepared by the husband's attorney. The wife was unrepresented during the negotiation and formation of the PSA and at the uncontested divorce proceedings that occurred on January 26, 1998.

The PSA contained the parties' agreement to share joint custody of the children and designated the wife as primary residential custodian. The PSA also contemplated the wife's move with the children to South Carolina, which occurred shortly after the divorce.

The wife waived alimony. In addition, the parties consented to the husband's payment of child support in the amount of $1,200 per month ($279 per week). The formulation of this child support obligation was described in the PSA in the following way:

In reaching this agreement, the parties have not undertaken an analysis in accordance with the Child Support Guidelines, but rather, have reached this figure as a voluntary agreement as an appropriate level of child support in this case. Both parties understand that, should the matter have proceeded in a contested manner to Court, that a Superior Court judge may have awarded more or less child support than $1,200.00 per month, based upon all appropriate criteria including but not limited to the Child Support Guidelines. Nonetheless, the parties have reached this agreement and wish for same to be incorporated into the final judgment of divorce. Both parties have represented that he/she feels the $1,200.00 figure to be fair under the entirety of the circumstances and the overall financial settlement in this case, including the Wife's waiver of alimony . . . .

II

Husband filed a motion on May 3, 2005, which sought: (a) emancipation of Michael as of September 1, 2002; (b) an increase in the flow to him of education and health information regarding Nicole; (c) a reduction in his child support obligation; (d) permission to remove Michael from his medical coverage plan; and (e) counsel fees and costs. Wife opposed the motion and cross-moved for an award of counsel fees.

On July 1, 2005, the trial judge rendered written findings regarding these motions. He determined that Michael was not emancipated, correctly recognizing that reaching the age of eighteen generates a presumption of emancipation that may be rebutted by evidence that the child remains within the sphere of parental influence, not uncommonly demonstrated by the child's pursuit of higher education. See Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003); Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997); Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972). We agree with the judge's determination that even though Michael was then twenty years old, he was attending college full-time, and the presumption of emancipation was adequately rebutted. Moreover, we observe that the husband has not cross-appealed this aspect of the July 1, 2005 order and, thus, the question of whether Michael was properly found to be unemancipated is not before us.

The trial judge, however, also ordered, on July 1, 2005, the production of additional financial information so he could "calculate [husband's] child support obligation taking into consideration that Michael is over 18 years of age." Specifically, the judge ordered the wife "to provide a complete and updated Case Information Statement, which shall have attached thereto complete copies of the last three years of federal and state tax returns, the last three years of W-2s and 1099's issued, and their [sic] last three pay stubs, within 10 days." Inexplicably, the husband, who failed to produce the personal and financial information required by R. 5:5-4(a), was not compelled to provide a current case information statement or any past case information statements. Instead, the husband was only required to provide information describing the wife's "prior work history, earnings and education." As can be seen, the turnover of information compelled by the judge's order was greatly skewed, predominantly focusing on the wife's income and financial circumstances, not the husband's.

The judge also denied the cross-motions for attorneys' fees without explanation. His conclusions failed to meet the requirements of R. 1:7-4(a) and precludes our meaningful review of that issue. See, e.g., Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); Verna v. Links at Valleybrook, 371 N.J. Super. 77, 89 (App. Div. 2004).

Subsequently, the wife informally requested that the judge reconsider his failure to require the husband to provide additional financial information, urging that the judge compel husband to provide a current case information statement. The judge did not accede to her wishes, nor did he conduct a plenary hearing. Instead, the trial judge rendered a brief written decision, dated July 21, 2005, which contained his findings and his determination to reduce the child support obligation to $250 per week.

The judge utilized the husband's weekly income of $1,209 per week (as reflected on his 2004 federal tax return) and the wife's income of $477 per week (contained in her case information statement), and then determined that the husband's child support obligation should be reduced to $250 per week ($1,075 per month). Although the judge stated that he should not, and had not, applied the child support guidelines set forth in R. 5:6A, the amount of child support he imposed was quite similar to what the New Jersey child support guidelines would require, if applied.

III

We agree that the circumstances regarding Michael's enrollment in a college away from his mother's home constituted an adequate basis for revisiting the child support obligation since, as a general matter, an unemancipated child's living outside the home may tend to lessen the parent's monthly household expenses. For example, the proper level of support required by application of the child support guidelines is often duplicated when a child attends a college away from home, as explained in the appendix to R. 5:6A:

Many costs associated with college attendance (e.g., room, board, transpor-tation) are included in the Appendix IX-F child support guidelines awards. Thus, a parent who is ordered to pay a guidelines-based child support award and part of the child's college expenses is forced to make duplicate expenditures for the child (i.e., the PAR would be paying a share of the cost of food for the child to the primary household as well as a share of the cost of a meal plan or food allowance while the child is attending college). As a result, the level of total spending on the child would exceed that of intact families in a similar economic situation and the PAR's share of the total-spending on the child would increase beyond his or her income share. Requiring duplicate expenditures for a child is inconsistent with spending patterns of intact families and the economic theory of the child support guidelines.

[R. 5:6A, Appendix IX-A, 18.]

We conclude that a change in circumstances that would, if not addressed, require the child support obligor to pay such duplicate expenses is the type of event that would justify a modification in a child support order. In short, the circumstance that may require a downward modification is the reduced need of the child support recipient for certain household expenses that are no longer incurred due to the child's absence from the home.

Notwithstanding the judge's accurate finding of a changed circumstance, his determination to reduce the child support obligation as a result cannot stand because he mistakenly failed to compel the husband to provide sufficient financial information, including all past case information statements and a current case information statement, and mistakenly failed to utilize all the applicable factors delineated in N.J.S.A. 2A:34-23(a).

A

R. 5:5-4(a) requires, in part, that "[w]hen a motion is brought for the modification of an order or judgment for . . . child support, the pleading filed in support of the motion shall have appended to it a copy of the prior Case Information Statement or Statements filed before entry of the order or judgment sought to be modified and a copy of a current Case Information Statement" (emphasis added). Because such a motion requires a comparison of past and present factual circumstances, the rule's requirement that the movant submit all past case information statements as well as a current case information statement is critical and, thus, mandatory, Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991); Zazzo v. Zazzo, 245 N.J. Super. 124, 129 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991), and, as we said in Gulya, not mere "window dressing," 251 N.J. Super. at 253. In the absence of a movant's compliance, the better practice is to deny the motion for modification. Here, the husband failed to comply with this highly important requirement and that part of his motion which sought a reduction in child support should have been denied.

Having determined, however, to proceed on, the judge here mistakenly required that the wife provide a current case information statement while inexplicably failing to impose that obligation upon the husband. Following our remand, the trial judge should forthwith enter an order -- after providing the parties with an opportunity to be heard -- compelling the husband to meet the requirements of R. 5:5-4(a), and to provide any other information that may be relevant. The application for a downward modification of child support should not proceed until the husband has fully complied.

B

The trial judge also mistakenly failed to utilize all the statutory factors applicable to this non-guidelines child support award. N.J.S.A. 2A:34-23(a) states that in determining the amount of support paid by a parent on behalf of a child when the original award was "not governed by court rule," i.e., when not tethered to the child support guidelines contained in R. 5:6A, the trial judge must consider, but not be limited to, the following factors:

(1) Needs of the child; (2) Standard of living and economic circumstances of each parent; (3) All sources of income and assets of each parent; (4) Earning ability of each parent, including educational background, training, employment skills, work experi-ence, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment; (5) Need and capa-city of the child for education, including higher education; (6) Age and health of the child and each parent; (7) Income, assets and earning ability of the child; (8) Re-sponsibility of the parents for the court-ordered support of others; (9) Reasonable debts and liabilities of each child and parent; and (10) Any other factors the court may deem relevant.

Since the child support guidelines are inapplicable here, the trial judge was required to first gain an understanding of how the statutory factors may have factored into the PSA's $1,200 per month obligation and, then, ascertain whether or how those factors have changed and whether they presently compel a different child support obligation.

The judge's brief written decision of July 21, 2005 does not include a discussion of all the applicable statutory factors and says little about those few that were actually mentioned. Instead, the judge predominantly relied upon the parties' actual incomes to reach a child support award that slightly differs from what the child support guidelines would require, if applied. That is, the judge mentioned that the wife's waiver of alimony played a role in the original child support award, but made no determination as to how or to what extent. He observed that Michael had attained the age of twenty and was enrolled in college, but did not attempt to describe how that fact financially impacted upon the wife's need for support. Other than those few general observations, the judge appears to have relied only upon the parties' actual incomes in setting a child support award of $250 per week -- a mere seventeen dollars different from what the child support guidelines would require.

On remand, the trial judge must make findings as to each of the statutory factors. Those findings must focus not only on how they impacted upon the original award contained in the PSA but also how they impact upon the parties at the present time. If the judge determines that any of the statutory factors are not implicated in this process, he should explain why. In light of the findings he makes as to each factor, the judge should then weigh those facts collectively and determine whether or to what extent the child support obligation should be modified.

C

We observe, also, that the judge rendered his findings without the benefit of evidential material beyond that which he required the parties to submit by way of his July 1, 2005 order. We have already mentioned that the husband failed to provide -- and the judge failed to compel -- the production of the husband's past case information statements and a current case information statement. The judge, thus, had no way of knowing or more deeply examining the husband's assets and debts, monthly expenses, and overall ability to pay child support at a level warranted by the needs of the children. In the absence of the information that would be provided by the husband's past and current case information statements, and perhaps other evidence not therein included that also ought to be provided, the judge was presented with an inadequate record from which to gain sufficient insight into the proper level of child support.

The wife also argues that the judge's examination of the issues was hobbled because of the absence of a plenary hearing, which deprived the judge of the additional information the parties might have provided regarding the statutory factors that the judge mistakenly failed to consider when rendering his decision. She also contends that the lack of a plenary hearing prevented the parties from critiquing the evidence through cross-examination and additional argument, and resulted in an inadequate resolution of the issues because it left the judge with a static and incomplete record.

On remand, and after the production of the personal and financial information mandated by our judgment, the trial judge should consider whether to conduct a plenary hearing. We recognize that a hearing is not required in all cases in which a party seeks modification of a child support order. See Weber v. Weber, 268 N.J. Super. 64, 69 (App. Div. 1993). However, we observe that, at present, this case presented numerous uncertainties, such as (1) how the wife's waiver of alimony factored into the original child support agreement and the impact that fact should now have; (2) the children's needs both then and now; (3) the parents' past and present standard of living; and (4) the cost of supporting a child in South Carolina. The exchange of information that we have mandated may provide sufficient clarification as to eliminate any material questions of fact. However, if important uncertainties remain, a plenary hearing should be conducted to resolve any material factual disputes.

IV

We lastly reject the trial judge's determination not to award counsel fees to the wife. Initially, we recognize that the decision to grant or deny fees is discretionary, Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004), but the trial judge gave no reasons for his ruling and we, thus, are unable to determine whether the denial of the wife's cross-motion for fees represented an appropriate exercise of that discretion.

In Williams, the Court held that, as a general matter, that in deciding whether to grant a motion for fees, the court should focus on the movant's "good faith in instituting or defending the action," the movant's need and the other spouse's financial ability to pay. 59 N.J. at 233. As the record indicates, a considerable portion of the husband's motion was found to be without merit. That part of his motion which sought emancipation of Michael was rejected, and the husband has not questioned that determination on appeal. In addition, the husband's motion for a downward modification of child support failed to comply with the requirements of R. 5:5-4(a), and should have been denied for that reason. As a result, the record would suggest the bona fides of the wife's position regarding these chief aspects of the husband's motion. The wife's case information statement indicated that she has a need for the reimbursement of her fees, and the limited financial information provided to the judge suggested that the husband was in a far superior financial position than the wife to bear some or all of her fees, since he earns three times the income she earns. The extent to which the husband had the ability to pay attorneys' fees, however, is largely unknown, but that is principally due to his failure to comply with R. 5:5-4(a). As a result, we find that the wife presented a legitimate basis for an award of fees, although no clear conclusion can be reached in that regard due to the limits of the factual record.

Consequently, that part of the July 1, 2005 order which denied the wife's motion for counsel fees cannot stand. We remand for further proceedings, which should initially address whether or to what extent the wife should be awarded fees for those proceedings which led to the orders of July 1, and July 22, 2005. The trial judge should apply the general principles announced in Williams, supra, 59 N.J. at 233, as well as the factors delineated in R. 5:3-5(c), in making that determination.

In addition, the judge should determine whether there should be a fee award to either of the parties once he has determined whether or to what extent there should be a modification of the husband's child support obligation.

V

For these reasons, we (1) vacate the July 1, 2005 order insofar as it unduly limited the amount and type of information that the husband should have provided in advance of the hearing and, also, insofar as it denied the wife's motion for an award of counsel fees, (2) vacate the July 21, 2005 order in its entirety, (3) reinstate the child support obligation imposed by way of the judgment of divorce and direct that, after providing the parties with an opportunity to be heard, the judge should forthwith order the husband's repayment to the wife, upon such terms as are just and equitable, of the child support that she was short-changed because of the erroneous July 21, 2005 order; (4) direct that the trial judge enter an order as soon as hereafter practicable compelling the husband's compliance with the requirements of R. 5:5-4(a) and the parties' production of such other information as is necessary for there to be a full and fair consideration of the factors set forth in N.J.S.A. 2A:34-23(a); and (5) consider, after the parties engage in a thorough exchange of information, whether a plenary hearing regarding the propriety and extent of a modification of child support is warranted.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

When utilizing these income figures, the child support guidelines would suggest a child support payment of $267 per week.

In addition, because of the critical role such information plays in the determination of whether or to what extent the child support obligation should be modified, any reduction that may be permitted in the future should commence no earlier than the point in time that the husband turns over the required information. N.J.S.A. 2A:17-56.23(a) only permits retroactive reduction of child support to the date upon which the motion for a modification was filed. See Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995); Ohlhoff v. Ohlhoff, 246 N.J. Super. 1 (App. Div. 1991). That directive, however, presupposes the filing of a motion that complies with our court rules, something that has yet to occur. Accordingly, it would be inappropriate for any future modification to apply retroactively to the original filing date of the husband's deficient motion. If there should come a time when the trial judge determines that child support should be reduced, that reduction should not be effective any earlier than the date upon which the husband complies with the requirements of R. 5:5-4(a).

Since this inadequacy in the husband's moving papers should have been cause for the denial of his motion, we conclude that the child support obligation should not have been reduced when it was and that an order should be entered, on remand, reimbursing the wife accordingly.

One factor that would fall within the "any other" catchall provision of N.J.S.A. 2A:34-23(a)(10) would be the cost of living in South Carolina. To the extent that there may be a difference in the cost of raising a child in South Carolina as opposed to New Jersey, common sense would dictate that the proper level of child support be viewed through the lens of the cost in South Carolina of shelter, food, clothing, education, extracurricular activities and any other relevant items.

Indeed, it is not even clear to us that the judge permitted oral argument following the submissions compelled by the July 1, 2005 order. While some mention is made in the record on appeal regarding the scheduling of oral argument, the judge's written decision makes no mention of there having been oral argument and no transcript of any such argument has been provided to us.

The judge also did not explain the reasons for his denial of the husband's motion for counsel fees. However, since the husband has not appealed that ruling, that part of the judge's order is not before us.

(continued)

(continued)

18

A-0051-05T5

April 18, 2006