SHERYL L. SIEGEL v. ROBERT J. SIEGEL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7004-03T57004-03T5

SHERYL L. SIEGEL,

Plaintiff-Respondent,

v.

ROBERT J. SIEGEL,

Defendant-Appellant.

 
______________________________________________

Submitted March 15, 2006 - Decided April 12, 2006

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-488-03.

Spinato, November, Conte, & LaRocca, attorneys for appellant (Erin K. Burke, on the brief).

Sheryl L. April, respondent pro se.

PER CURIAM

Defendant Robert Siegel appeals the trial court's July 7, 2004, order denying his motion for reconsideration of certain provisions of the dual judgment of divorce (JOD) entered on February 28, 2004, following trial. The JOD awarded $4500 per month in alimony and $400 per week in child support to plaintiff, and equitable distribution of the marital residence and two investment accounts, sixty percent to plaintiff and forty percent to defendant. The judgment further provided that one-half of defendant's share of the marital residence would be placed in trust for the children's college education. Finally, the judgment ordered defendant to pay all outstanding credit card debts incurred during the marriage and to pay all of plaintiff's outstanding counsel fees.

On March 12, 2004, defendant moved for reconsideration. Defendant contended the trial court erred in calculating his gross income, arbitrarily fixed the amount of child support, erred in imputing bonus and perquisite income to him, awarded an excessive amount of alimony to plaintiff, erred in its allocution of responsibility for camp, un-reimbursed medical expenses and tax liability between the parties, erred in ordering defendant to be 100 percent responsible for the marital debt, erred in its distribution of marital assets, arbitrarily ordered defendant to contribute one-half of his share of equitable distribution to his children's college fund, abused its discretion when it required defendant to pay $58,541.25 of plaintiff's counsel fees, and erred when it found that the $25,000 conveyed to the parties from defendant's parents was a gift rather than a loan. Having reviewed the record, we conclude that with the exception of the trial court's determination of child support, defendant's arguments are without sufficient merit to warrant discussion in a written opinion, and we affirm for the reasons stated in the trial court's letter opinion of July 8, 2004. R. 2:11-3(e)(1)(A) and (E).

The following relevant facts, if credited, were revealed during the trial. The parties were married on April 28, 1990. They had two children; Marni, born February 10, 1996, and Austin, born March 2, 1999. During the marriage, the parties resided in a three-bedroom home in Livingston. Defendant described the parties' living standard as "middle to up[per class]." The children attended religious preschool. Plaintiff went on some business trips with her husband, sometimes taking the children. The couple vacationed approximately one or two times a year. The couple owned one car throughout their marriage and used another that was paid for by the business. At the time of trial, plaintiff drove a leased Toyota Matrix and defendant drove a 2001 Acura truck. The couple ate at restaurants almost every weekend and occasionally during the week. When they dined out without their children, they would always go to an "upscale" restaurant.

During most of the marriage, defendant was employed as a sales executive with GMD Sales, Inc., a food distributor. The business is owned by defendant's parents. At one time during his employ, defendant had an interest in the business, but it was taken back by his father as a result of defendant's drinking. At the time of trial, defendant had no interest, management control, or decision-making authority in the business. As part of defendant's employment, he traveled to conduct food shows to market clients' products. Defendant had access to a business American Express card, which was paid by GMD Sales. GMD Sales also provided defendant with a car allowance, as well as life insurance for defendant. Defendant's bi-weekly gross income was approximately $4,700. Defendant also received annual bonuses from his employment. In 2002, he received a bonus in the amount of $2,300. In the years leading up to 2002, the trial judge found defendant received the following bonus amounts: $24,840 in 1998; $23,600 in 1999; $30,200 in $2000; and $42,700 in 2001.

Prior to the marriage, plaintiff earned a college degree from the University of Maryland. Beginning in 1987, plaintiff was employed as a media buyer with an advertising agency. She remained there for eleven years, during which time she accumulated a pension plan worth $59,067.87 as of June 20, 2003. Plaintiff also worked a second job as a manufacturer's representative on a part-time basis. Following Austin's birth, plaintiff was employed three days per week as a television media buyer for approximately one year. She then worked part-time for Horizon Media and as a sales representative for two other companies until taking her current position with Culver Out-of-Home Media, from which she earns a base salary of $25,000 plus commissions. Plaintiff's earning statement dated August 31, 2003, indicated that her net earnings every two weeks were $1050.97. Plaintiff testified that in December 2003, her net earnings were reduced to $964.91 every two weeks.

Plaintiff filed a divorce complaint on August 5, 2002. At the time the complaint was filed, the children were six and three. The parties separated the following month. Plaintiff and the children continued to reside in the marital home. A little more than a year later, the parties agreed to share legal custody of the children. Defendant was granted unsupervised overnight parenting time. Plaintiff was designated the parent of primary responsibility with residential custody and defendant was designated the parent of alternate responsibility.

In determining the appropriate amount of child support, the court concluded the Uniform Child Support Guidelines should only be used "up to a joint income of $150,[8]00." The court found that the "parties' income between the two of them exceeds the $150,[8]00." The court next referenced the statutory factors a court must consider in establishing child support, as set forth in N.J.S.A. 2A:34-23a. The court proceeded to impute income to the defendant in the range of $178,350 to $218,350. This amount was reached by averaging the defendant's income from 1998-2002, averaging defendant's bonus amounts, adding $20,000 for personal expenses charged to defendant's business American Express card paid for by his employer, and adding $6,000 for defendant's automobile allowance. The court imputed $28,800 in income to plaintiff based on her base salary of $24,000, her annual car allowance of $4,200 and her cell phone allowance of $600. Based on these considerations, the judge awarded to plaintiff $400 per week in child support. Although the judge did not rely upon the guidelines, she noted that she ran some calculations utilizing the guidelines and "actually came up with a range from $391 to $456."

Rule 4:49-2 provides:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.

"'[R]econsideration is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). The Chancery Division judge in D'Atria, supra, specifically noted:

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

. . . .

Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the Court must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration.

[242 N.J. Super. at 401.]

Within this framework, we conclude that although the trial court correctly found the parties' income exceeded $150,800, the trial court erred in concluding it "shouldn't use the guidelines" if the parties income exceeded that amount.

In Caplan v. Caplan, 182 N.J. 250 (2005), the Court definitively stated that the beginning point in all child support determinations must be the child support guidelines as set forth in the Rule 5:6A. Id. at 264. From that starting point, the court may modify or disregard the guidelines where good cause is demonstrated. Ibid. See also R. 5:6A. If the combined net income of the parents totals more than $150,800 per year, the court "shall apply the guidelines" up to that amount and "supplement the guidelines based award with a discretionary amount based on the remaining family income." Child Support Guidelines, Pressler, Current New Jersey Court Rules, Appendix IX-A(20) to R. 5:6A at 2320 (2006). In those instances, the court "shall apply the guidelines up to $150,800, and supplement . . . with a discretionary amount based on the remaining family income and the factors in N.J.S.A. 2A:34-23." Ibid. See also Caplan, supra, 182 N.J. at 266. In applying both the Guidelines and the statutory factors, the key is flexibility and the best interest of the children. Pascale v. Pascale, 140 N.J. 583, 594 (1995). The "fairness of a child support award resulting from the application of these guidelines is dependent on the accurate assessment of a parent's net income." Pressler, supra, Appendix IX-A(12) to R. 5:6A at 2310.

Here, in making the child support determination, the trial judge stated:

In calculating child support the Court is mandated to . . . use the child support guidelines to establish a fair and equitable child support award. However, the guidelines . . . should be only used up to a joint income of [$]150,000.

If in fact the income exceeds [$]150,000, the Court shouldn't use the guidelines. And I find in this case the parties' income between the two of them exceeds the [$]150,000.

The statutory factors that the Court should consider are set forth in [N.J.S.A. 2A:34-23a], and they should be considered when the statutory guidelines are not applicable.

In conducting its analysis, the court calculated each party's income. The court then set forth defendant's child support obligation.

In light of that and taking into account all of the factors, I find that [defendant's] obligation for child support is going to be $400 a week. I will note that I ran some calculations under the guidelines, even though it's more than $150 [sic], and I actually came up with a range from $391 to $456.

That I find this amount to be fair and reasonable, in light of the income of these two parties and in light of their standard of living and the needs that I will talk about when I go on to the next issue, which is alimony.

In this case, as in Caplan, supra, the parties' combined net income exceeded $150,800. 182 N.J. at 266. Therefore, the trial court was required to apply the guidelines up to $150,800 and then supplement the figure reached with a discretionary amount based on the remaining family income and the factors specified in N.J.S.A. 2A:34-23a. Ibid. The court did not follow that procedure. Although the court stated that it did some calculations using the guidelines, its factual analysis and conclusions of law were not articulated in accordance with R. 1:7-4.

In summary, we affirm the trial court decision denying reconsideration of the JOD in all respects except child support. The child support decision is reversed and remanded for specific findings pursuant to the Child Support Guidelines and N.J.S.A. 2A:34-23a. We are not ordering that additional proofs be presented. Instead, we direct the trial judge to review the evidence in the record. We do not, however, preclude consideration of additional proofs if the judge concludes that consideration of additional proof is necessary.

Affirmed in part and reversed in part. We do not retain jurisdiction.

 

The JOD permitted plaintiff to resume her maiden name of Sheryl April.

The factors in N.J.S.A. 2A:34-23a are as follows: 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 experience, 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 capacity 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) responsibility 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.

(continued)

(continued)

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A-7004-03T5

April 12, 2006