LUCIANA LEW v. HOWARD OSTROWSKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3580-04T53580-04T5

LUCIANA LEW,

Plaintiff-Appellant,

v.

HOWARD OSTROWSKY,

Defendant-Respondent.

____________________________

 

Submitted April 4, 2006 - Decided May 2, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Bergen County, FM-02-698-97.

Luciana Lew, appellant pro se.

Arthur Del Colliano, attorney for

respondent.

PER CURIAM

Plaintiff appeals from a Family Part post-judgment order that: (a) granted her motion for an increase in child support, in an amount less than she had requested, without requiring defendant to produce a current Case Information Statement; (b) denied her motion to compel payment of child support through the appropriate Probation Department; (c) denied her motion to compel reimbursement of certain medical, educational, and other expenses; (d) denied her motion to compel defendant to contribute to the cost of their daughter's Chinese classes;

(e) denied her motion to compel defendant to produce proof that he had replaced a child support check that plaintiff had failed to deposit and produce proof that he had made all 156 alimony payments required of him; and (f) granted defendant's cross-motion, allocating to him the income tax deduction attributable to the parties' child. We affirm in part and reverse and remand in part.

Plaintiff, Luciana Lew, and defendant, Howard Ostrowsky, were married on March 27, 1987, and had one child, Rebecca Ostrowsky, who was born February 2, 1989. They were divorced on December 22, 1997, by a Final Judgment of Divorce that incorporated their agreement resolving all financial and parenting issues.

Plaintiff, who had been admitted to the practice of law in 1983, held a Master's Degree in Library Science. She worked as an associate with a sole practitioner until the birth of Rebecca. Thereafter, although she was primarily a homemaker, she did some "freelance" immigration work, grossing approximately $10,000 per year. The Property Settlement Agreement imputed to plaintiff an earning potential of $40,000 per year and recited that "defendant has represented that his current annual income is $85,000.00 gross."

The parties agreed that defendant would pay alimony for three years. Weekly child support was fixed, in accordance with the guidelines, at $141.23. Support was to be paid directly to plaintiff but would be collected by the Probation Department of the county of defendant's residence in the event defendant missed two consecutive payments.

The agreement also required defendant to maintain "adequate medical insurance" for Rebecca and required plaintiff to pay the first $250 of un-reimbursed expenses. Of the balance, 58% was allocated to defendant and 42% to plaintiff. The parties also acknowledged that Rebecca was enrolled in a weekly tutoring program. Defendant agreed to pay 58% of the cost of that program, not to exceed $60, until the necessity of the tutoring was considered by a counselor, with whom plaintiff and defendant had agreed to meet. Once the issue was addressed, defendant's obligation to contribute would cease unless the counselor determined the tutoring to be necessary. Defendant was to pay 58% of the cost of the counseling. Finally, 58% of the cost of Rebecca's summer camp was to be borne by defendant after plaintiff paid the first $35.

On December 1, 2004, some six and one-half years after the divorce, plaintiff filed an application for increased child support and to compel the payment of certain sums she claimed were due under the Final Judgment of Divorce. Those claims related to un-reimbursed medical and health expenses, tutoring, and summer camp costs. Plaintiff also sought to require defendant to contribute to Rebecca's Chinese classes, to provide a replacement child support check, and to provide proof of all alimony checks delivered to plaintiff for the three year period commencing January 1, 1998.

Defendant did not oppose the application for an increase in support. He claimed, however, that plaintiff's income should be imputed in a substantially higher amount than was fixed at the time of the divorce. He also represented that his income was no more than $85,000, although he conceded that he had received a $15,000 bonus from his employer in 2003.

He resisted plaintiff's motion for re-imbursement of expenses she claimed to have paid, in part, because the cost of the medical insurance he provided had increased and because the amounts claimed by plaintiff were not documented and might have been discharged in her bankruptcy. Alternatively, he claimed the bills were incurred "as early as 1998 and, therefore, [are] too old for consideration."

He objected to plaintiff's demands for a replacement of a child support check and for proof of payment of his alimony obligation. He provided proof that he had, in fact, replaced the one child support check identified by plaintiff and claimed that the production of the alimony checks would be burdensome. Finally, he sought, by cross-motion, to have the tax deduction for Rebecca allocated to him.

The judge decided the motions as we have indicated and explained his decision as follows:

I am satisfied, having had an opportunity to review both packets of information . . . and I will note that the judgment of divorce

imputed 40,000 to [plaintiff] -- I am satisfied that an attorney with her educational background, not only in law but also in library science, should be able to earn at least $60,000 a year, and I will impute $60,000 a year to the plaintiff.

. . .

Imputing $60,000 to plaintiff and $90,000 to the defendant. Giving the defendant a credit in the appropriate part of the child support worksheet that he does pay medical expenses, brings a net award of child support payable to the plaintiff of $195 per week . . . effective as of December 21st 2004.

I am going to modify the defendant's responsibility for unreimbursed medical in accordance with the percentage set forth on the child support guideline, which is 41.9 -- well, 42 for the plaintiff and 58 for the defendant. The guidelines are going to be incorporated into the -- into the order. And I'm just going to put for nonreimbursed medicals and other -- other expenditures, to be divided as per PSA.

Requests for reimbursement of various sums is denied for the following reasons. I find that the plaintiff's claims are stale. I find the plaintiff, who did make prior motions, waived -- in effect waived and sat on her rights by not bringing those up at that time. I also find that some of the expenses were not in accordance with the property settlement agreement. So those -- those requests are denied.

There is no need for . . . defendant to file an updated Case Information Statement. I am not holding the defendant in contempt of Court.

. . .

With respect to the cross-motion, I do find that the plaintiff should be imputed income, which I have done. And I do find that it is fair and just to direct that the Federal and State income tax returns be switched -- the deductions -- I'm sorry -- be switched from the plaintiff to the defendant, in light of the proportion of income being earned by the defendant and in light of the fact that the defendant has been paying child support. So I'm going to grant the cross notice of motion and modify the property settlement agreement in that regard.

. . .

[I] am denying that request [for child support payment through probation] . . . the agreement set forth a mechanism on which support should be paid through probation. That mechanism has not kicked in because, through the plaintiff's own admission, the defendant has never been in arrears in child

support. So there is no reason to -- to have him pay through Probation.

We begin with the judge's treatment of the application for an increase in child support. Child support may be modified upon the showing by the applicant of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 157 (1980). Once changed circumstances have been established and the applicant's financial information disclosed, "tax returns or other financial information [of the respondent] should be ordered." Ibid. That information is necessary because "without knowledge of the financial status of both parties, the court will be unable to make an informed determination as to 'what, in light of all [circumstances] is equitable and fair.'" Id. at 158 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

We take defendant's failure to object to the request for a modification of his child support obligation to be an acknowledgment that the passage of six and one-half years justified a finding of changed circumstances. The motion judge implicitly accepted the existence of changed circumstances when he modified the child support.

The judge failed, however, to obtain information respecting defendant's current financial situation. There was simply no evidential basis for fixing defendant's income at $90,000 when defendant admitted to receiving total income of $100,000 in the prior year. Nor did the judge provide any explanation as to why plaintiff would be bound by defendant's representation of his income without the opportunity to test those representations by discovery. On remand, plaintiff must be given an opportunity to discover defendant's income. That income should include bonuses as well as wages. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2326 (2006).

Similarly, the court must consider the income properly attributable to plaintiff. At the time of her application, she was employed on a part-time basis with a salary of approximately $11,000 per year. Nevertheless, the court imputed to her an income of $60,000, some $20,000 more than the amount to which the parties had agreed six years previously. The judge did so without making a finding that plaintiff was voluntarily unemployed. That finding is a prerequisite to the imputation of income. Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). Plaintiff has suggested that the special needs of her child may impact on her ability to find work and has further certified that she made what she characterizes as reasonable, but unsuccessful, attempts to find work. On remand, these issues must be explored in a plenary hearing, if necessary. If the judge determines that plaintiff is voluntarily unemployed, there must, nevertheless, be some evidential support for a finding as to the amount that plaintiff might earn.

Similarly, the court, when fixing the appropriate level of child support, must consider the related issue of whether to allocate the tax deduction to defendant. We have explained previously the factors informing that decision. Gwodz v. Gwodz, 234 N.J. Super. 56 (App. Div. 1989). On remand, the judge must make that determination and, if a new allocation of the tax deduction is appropriate, determine the effect of the new allocation on the child support ultimately ordered. Ibid.

The judge also denied plaintiff's request for the reimbursement of expenses. He did so because he felt the claims were "stale" and because he believed plaintiff had waived her rights by not making the request earlier. Waiver involves the intentional relinquishment of a known right. Allstate Ins. Co. v. Howard Sav. Institution, 127 N.J. Super. 479, 487-488 (Ch. Div. 1974). There must be an affirmative showing that the party charged with waiver both knew of those rights and intended to abandon them. West Jersey Title & Guaranty Co. v. Industrial Trust Co., 27 N.J. 144, 153 (1958). "A waiver, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition." Id. at 152-53. We are not at all persuaded that, in these circumstances, the mere passage of time affirmatively demonstrates a waiver and the judge did not explain the basis for his implicit conclusion that it does.

Similarly, we are unable to determine the basis on which the judge precluded plaintiff's claims for reimbursement because those claims were "stale." We assume the judge intended to invoke the doctrine of laches, which is an equitable doctrine that denies

a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party

. . .

The core equitable concern in applying laches is whether a party has been harmed by the delay.

[Knorr v. Smeal, 178 N.J. 169, 181 (2003).]

The decision to apply the doctrine depends upon the facts of a particular case, Mancini v. Twp. of Teaneck, 179 N.J. 425, 436 (2004), and involves "weighing the peculiar facts of the case." Lavin v. Bd. of Educ., 90 N.J. 145, 157-58 (1982) (Pashman, J., dissenting). The motion judge here did not address any of the facts that would support the application of the doctrine and we are at a loss to explain the basis for his decision, especially since we can find no indication of prejudice to defendant in the record.

We do not mean to prejudge these issues and, on remand, defendant should be afforded the opportunity to demonstrate the factors that would prove waiver or invoke the doctrine of laches. Defendant should also be able to explore whether the expenses plaintiff claims were actually paid by her or were, instead, discharged in bankruptcy or otherwise.

The judge also indicated a belief that the responsibility for at least some of the claimed expenses was not assigned to defendant by the Property Settlement Agreement, but he did not identify those expenses and did not indicate the basis for his conclusion. Under these circumstances, we are unable to determine the judge's rationale so as to evaluate the result he reached. On remand, the judge should treat separately each of the requests made by plaintiff and explain the factual and legal basis for the ultimate conclusion. See R. 1:7-4.

The balance of plaintiff's arguments on appeal lack sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(1)(A) & (E).

In sum, we reverse and remand for such further proceedings, as may be necessary, the judge's determination with respect to child support, allocation of tax exemption, and plaintiff's claims for reimbursement (including the claim that Chinese classes should be a part of plaintiff's obligation). We affirm the judge's denial of plaintiff's motion to compel proof of the replacement of a child support check and proof of payment of all alimony, and to require child support payment to be paid through the probation department.

Affirmed in part, reversed and remanded in part.

 

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A-3580-04T5

May 2, 2006