MARJORIE M. WALSH v. J. GARVIN WALSH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5823-04T35823-04T3

MARJORIE M. WALSH,

Plaintiff-Respondent,

v.

J. GARVIN WALSH,

Defendant-Appellant.

_____________________________

 

Submitted February 28, 2006 - Decided March 20, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Morris County, FM-14-973-02.

J. Garvin Walsh, appellant pro se.

Respondent did not file a brief.

PER CURIAM

Defendant appeals from that portion of a May 9, 2005, post-judgment Family Part order awarding a minimal lump sum modification of the child support fixed by the Judgment of Divorce. We affirm.

The parties were divorced on October 31, 2003, after a marriage of slightly more than twenty-seven years. All issues relating to the divorce were resolved by trial and the dual judgment memorialized the trial judge's decisions. The judgment required defendant to pay child support for his two daughters, the younger of whom, Mariana, was then attending Villanova University. Defendant appealed from at least some of the terms of that judgment and that appeal is still pending.

Defendant filed a motion, seeking modification of his child support obligation. He asserted that his obligation had been predicated on the trial judge's belief that Mariana would return to plaintiff's home during the summer months but she had, instead, in 2004, spent that time either abroad or at school. The motion judge, who was not the trial judge, appropriately required that an application be made to us for a temporary remand. See R. 2:9-1; Kiernan v. Kiernan, 355 N.J. Super. 89, 93-94 (App. Div. 2002) ("A litigant cannot effectively open up the entire divorce proceedings or revise the judgment while an appeal is pending without having sought from the appellate court a remand with direction to the trial court to allow, if necessary, any changed determination to be incorporated in the pending appeal."). The remand was eventually granted for the limited purpose of permitting defendant to pursue this modification.

The motion judge heard the application for modification on May 6, 2005. Although plaintiff argued that the judge deciding the divorce action had accounted for the possibility that Mariana would not return to her mother's home when she was at college, the motion judge could not find that fact from the record before him. He found the uncontested fact that, for the year 2004, Mariana had not returned to her mother's home for the months of June, July, and August. He concluded that this was a change of circumstances meriting a support reduction and awarded defendant "a credit of $300 toward any future child support payments . . . ." Defendant, who believed the change of circumstance warranted a recalculation of child support, appeals.

The motion judge's findings were attached to his order:

The Court has reviewed the decision of the [trial judge] dated September 17, 2003. The Court has not modified the findings of [that judge]. However, the Court finds that at the time of [his] decision, it was contemplated that Mariana would spend time principally with her mother when she was not attending Villanova University. It is undisputed that in the summer of 2004 Mariana remained in Pennsylvania and did not reside with her mother. As such, this requires a modification during the summer of 2004 concerning child support. Even though these "changed circumstances" were [temporary], the Court finds that it does not preclude nor bar relief as sought by the defendant.

The judge did not specifically provide reasons for his ultimate conclusion that the changed circumstances warranted a modification of child support in the amount of $300 for the three months in 2004. Clearly, the judge should have discharged his obligation to set out fully the findings and reasons that led to the final conclusion, R. 1:7-4, when he announced his decision.

Nevertheless, in this case, the comments made by the judge during the argument on the motion provide a sufficient basis for us to understand the analysis that he utilized. The judge recognized that, generally, when a child goes to college "the court then should look at whether or not the child support should be modified in some form or fashion." He also recognized, however, that Mariana was already in school when the child support order was entered and that it was not his role to "second guess" the trial judge's child support determinations. He then considered the asserted circumstantial change and indicated "the only change in circumstances that I see on this record, that is different apparently from what [the trial judge] reviewed, was the fact that Mariana is not spending the time at home with her mother as was contemplated." That conclusion is unassailable and, so far as we can tell from defendant's brief, no other change in circumstances is advanced by him.

The judge then indicated that "I don't see this as a big number change. It may be very [temporary], but I do find that there are some changed circumstances. What the quantification of that is I am not sure at this moment but I think that there is." The judge also indicated that defendant's argument was premised on his belief that "because of the residence of [Mariana], [plaintiff] may not need or may not have needed the amount of support that [defendant was] providing." He also specifically found that the parties' respective ability to contribute to their daughter's support had not changed.

Defendant first complains that the motion judge gave undue deference to the findings of the trial judge. That deference was not undue; it was required to determine a change of circumstance. The motion judge had to compare the circumstances existing at the time of the judgment with those existing at the time of the modification motion to determine what change had occurred. The trial judge's findings established the circumstances existing at the time of the divorce. Those findings were the subject of an appeal but, absent a reversal, they were binding on these parties. The motion judge recognized that he was not to re-decide the issues litigated in the divorce. Defendant's complaints that the child support was initially set too high and that plaintiff should not be considered the parent of primary residence simply could not be considered on this limited application.

Given the limited nature of the change of circumstance, the trial judge was clearly correct in refusing to re-compute child support. The judge believed this change to be temporary; indeed, since it related to a three-month period only, we cannot conceive how it could not be temporary. Defendant had no absolute right to any reduction in support because a temporary change of circumstance does not require a re-computation of support. Lepis v. Lepis, 83 N.J. 139, 151 (1980). Nevertheless, a minimal reduction was certainly within the judge's discretion.

Given our recitation of the judge's comments during argument, it is clear that he understood that any reduction would, necessarily, be premised on plaintiff's reduced needs as a result of Mariana's absence for three months. Plaintiff's recurring, fixed expenses for maintenance of the home, clothing for Mariana, and the like would remain unaffected by Mariana's three-moth absence from her home. The expenses that plaintiff might no longer incur during that three month period would relate to food she might otherwise have provided to Mariana, and the like. Those expenses cannot be computed with any degree of exactitude, but they are clearly minimal. We cannot say that the judge's resolution of this issue constituted an abuse of discretion. Indeed, given the judge's expertise in this area, Cesare v. Cesare, 154 N.J. 394, 413 (1998), his resolution of this thorny problem is entitled to great deference.
Affirmed.

 

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A-5823-04T3

March 20, 2006