CHRISTOPHER B. CAMPBELL v. LINDA R. CAMPBELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2718-04T52718-04T5

CHRISTOPHER B. CAMPBELL,

Plaintiff-Appellant,

v.

LINDA R. CAMPBELL,

Defendant-Respondent.

______________________________

 

Submitted January 17, 2006 - Decided March 16, 2006

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-11478-89

Pappas & Richardson, attorneys for appellant (Hercules Pappas, on the brief).

Linda R. Campbell, respondent pro se.

PER CURIAM

Plaintiff, Christopher B. Campbell, appeals from an order modifying child support entered in the Family Part on October 12, 2004, and from a second order entered on December 22, 2004, denying his motion for reconsideration without prejudice. We affirm.

Plaintiff and defendant, Linda R. Campbell, were divorced on May 7, 1990. Four children were born of the marriage: Crystal, born November 24, 1983; Linda, born December 15, 1985; Charles, born August 16, 1987; and Christopher, born August 16, 1987. The judgment of divorce incorporated the terms of a Property Settlement Agreement (PSA) that provided: 1) the parties would share joint custody of their four children with defendant as the parent of primary residence; 2) plaintiff to pay $200 per week for support of their children ($50 per child); 3) plaintiff to provide medical coverage with defendant responsible for deductibles; and 4) the parties to share orthodontic expenses on a pro-rata basis based on income. On March 7, 2003, an order was entered setting plaintiff's child support obligation at $243 per week because Crystal became emancipated. On July 16, 2004, plaintiff filed a motion for an order declaring Linda emancipated as of December 15, 2003, her eighteenth birthday; awarding plaintiff credit for support payments made since December 15, 2003; and directing that defendant pay all transportation costs for plaintiff's visitation with their children because defendant moved to the State of South Carolina approximately eight and one-half years prior. Defendant filed two cross-motions requesting that: 1) plaintiff provide his 2003 W- 2 Federal tax form; 2) plaintiff be responsible for future transportation costs; 3) plaintiff reimburse defendant for orthodontist expenses; and 4) for the court to waive oral argument. In support of his motion, plaintiff submitted current pay stubs from his employer, Federal Express, in support of his representation that he had earned $13,000 to $15,000 less in 2004 for the same portion of the year as compared to 2003. Plaintiff contended that the drop in income was due to his employer cutting back on overtime. In a certification submitted in response to defendant's cross-motions, plaintiff certified in part:

However, there is overtime available during the holiday season, when I frequently work overtime. Due to the extra availability of overtime during the holidays, my paychecks around the end of the year are typically higher than average. Therefore, my current year-to-date income figures make my current salary appear lower than it will be after the year is over. However, if you go by my 2003 tax return, that overtime is factored in and my 2004 income will be very similar. (emphasis added).

On August 27, 2004, Judge Suter entered an order declaring Linda emancipated, effective June 4, 2004, the date she graduated from high school. The judge also determined that Linda's emancipation established a prima facie case for modification of plaintiff's child support obligation, citing Lepis v. Lepis, 83 N.J. 139 (1980). The motion judge fixed the date of October 1, 2004, as the date on which she would recalculate child support, and directed the parties to supply additional financial information in the interim. Judge Suter denied plaintiff's request that defendant pay for future transportation costs, and ordered the costs shared on a 50/50 basis. Lastly, the judge directed that defendant's request for reimbursement of orthodontic expenses would also be decided on October 1, 2004.

On October 12, 2004, the judge reduced plaintiff's child support obligation from $243 per week to $240 per week, effective August 11, 2004. The order also directed that plaintiff reimburse defendant for his share of the un-reimbursed orthodontic expenses calculated at $514.33. Lastly, the judge modified her August 27, 2004, order concerning transportation costs, because she received a copy of the March 4, 1996, order that permitted defendant to remove their children from New Jersey and directed defendant be responsible for transportation costs relating to plaintiff's visitations. Concerning the reduction in child support, the October 12, 2004, order provided:

According to his submissions, the plaintiff earned $31,931 from his employment at Federal Express as of August 28, 2004, or $912 per week. However, he admitted this may understate his income because of the overtime that is earned at the holidays. He stated that he would earn about what he did last year, so the [c]ourt used $61,442 (2003 W-2), or $1,182 per week.

On November 8, 2004, plaintiff moved for reconsideration arguing that the judge erred in only reducing his child support obligation by $3 per week contending that the judge erroneously concluded that plaintiff was going to earn approximately the same amount of income in 2004 as in 2003. Plaintiff asserted that the judge should have accepted his latest 2004 pay stub as evidence that he was earning $13,000 to $15,000 less in 2004, due to a cutback in overtime by his employer. Defendant opposed the motion, and cross-moved to not only increase child support, but to also recalculate the refund due defendant for orthodontic expenses. In opposing plaintiff's motion, defendant contended that plaintiff's pay stubs for November 1, 2003, and October 23, 2004, cannot be used as a comparison of plaintiff's yearly earnings because the 2004 pay stub is from a vacation week, while the 2003 pay stub is from a normal work week, which includes overtime and shift pay. On December 22, 2004, the court entered an order denying both motions. Concerning the denial of plaintiff's motion for reconsideration, the order provided:

The [p]laintiff's motion for reconsideration of the October 12, 2004[,] order setting child support is denied without prejudice. The [c]ourt specifically relied on a statement from the [p]laintiff's reply to response/cross-motion filed with the [c]ourt on August 19, 2004, that provided at paragraph 3:

"However, there is overtime available during the holiday season, when I frequently work overtime. Due to the extra availability of overtime during the holidays, my paychecks around the end of the year are typically higher than average. Therefore, my current year-to-date income figures make my current salary appear lower than it will be after the year is over. However, if you go by my 2003 tax return, that overtime is factored in and my 2004 income will be very similar."

It is very difficult for the [c]ourt to interpret this other than as it is stated. Based upon this statement, the [c]ourt utilized [p]laintiff's 2003 income to calculate child support. The [p]laintiff has not convinced the [c]ourt that there was any misrepresentation or "misspeak" or anything presented that would form the basis for the [c]ourt's reconsideration.

On appeal, plaintiff argues that the trial judge erred by calculating his anticipated income for the year 2004 based upon plaintiff's certified statement, rather than the formula set forth in Appendix IX-B of the New Jersey Rules of Practice, which provides in Subsection b(2): "After June 30th, use the year-to-date income figure from all documented sources listed above. Divide the total gross income from all sources by the number of employed weeks to determine the weekly gross income." We disagree.

"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). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[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. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have considered plaintiff's argument in light of the record, and conclude that the issues presented are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3e(1)(A) and (E). It is well established that child support orders are subject to review and modification upon a showing of "changed circumstances." Lepis, supra, 83 N.J. at 146. 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). The "guiding principle is the 'best interests of the children.'" Lepis, supra, 83 N.J. at 157. "'[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). In order to make out a prima facie case for a change of circumstances, the moving party must demonstrate that the "child's needs have increased [or decreased] to an extent for which the original arrangement does not provide [or no longer requires]." Lepis, supra, 83 N.J. at 157.

Contrary to plaintiff's contention, the motion judge did consider the pay stubs submitted by plaintiff in support of his motion for reduction in child support. However, she did not consider them in a vacuum, but rather tested the information against plaintiff's own certified statement of anticipated income. "The review of a paystub, W-2 form, IRS-1099 form or tax return may not provide all necessary income information for a parent. The accurate determination of income may be dependent on a combination of these documents and testimony." We conclude that the motion judge properly determined that plaintiff failed to carry his burden of persuasion concerning a loss in overtime pay to justify a reduction in child support, and denied his motion without prejudice to renew with additional documentation from plaintiff's employer. Accordingly, we affirm.

 

The PSA discloses that the child support figure of $200 per week was based "upon a representation by the plaintiff that his net income per week is FOUR HUNDRED FOURTEEN DOLLARS ($414.00) and representations by the defendant that her net income per week is TWO HUNDRED SIXTY DOLLARS ($260.00) and that she incurs weekly daycare expenses of TWO HUNDRED FORTY DOLLARS ($240.00) per week."

Appendix IX-B, Use of the Child Support Guidelines, Collecting and Verifying Income Information.

Subsection b(1) of Appendix IX-B references as documented sources of income: Federal and State income tax returns, W-2 statement(s), IRS 1099's from the preceding year, paystubs, and employer wage verifications.

Appendix IX-B, supra note 2, at Note on Income Documentation.

(continued)

(continued)

9

A-2718-04T5

March 16, 2006