JOSEPH ASCOLESE v. JACQUELINE ASCOLESE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1438-06T11438-06T1

JOSEPH ASCOLESE,

Plaintiff-Respondent,

v.

JACQUELINE ASCOLESE,

Defendant-Appellant.

__________________________________________________

 

Submitted June 19, 2007 - Decided

Before Judges Stern and Coburn.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, Docket No. FM-14-556-00.

Donahue, Hagan, Klein, Newsome & O'Donnell,

attorneys for appellant (Francis W. Donahue,

of counsel and on the brief).

Joseph Ascolese, respondent pro se.

PER CURIAM

Defendant, Jacqueline Ascolese, appeals from a post-judgment order of the Family Part entered on October 13, 2006, which awarded her $188 a week in child support to be paid by plaintiff, her former husband for support of their two children. The contested order provided that "[p]laintiff shall pay $188.00 per week representing child support as calculated based upon the New Jersey Child Support Guidelines attached hereto through the Bergen County Probation Services Division." The order attached a "Child Support Guidelines - Shared Parenting Worksheet."

Defendant argues that the trial court committed reversible error by using a shared parenting worksheet, instead of a sole parenting worksheet, in calculating child support "because of an incorrect assumption of the number of plaintiff's overnight visits." Defendant further argues that the amount of child support should have been increased to reflect "an age adjustment per paragraph 17 per the child support guidelines." We remand for additional findings of fact and conclusions of law.

Pursuant to an order of August 6, 2001, the parties had joint custody of their two children until August 2006. No child support was embodied therein or in any order known to us prior to the year 2006. By orders entered on August 17 and August 31, 2006, a parenting time schedule was created for the school year commencing in the fall of 2006. As a result, plaintiff moved to discontinue his responsibility to make alimony payments, while defendant cross moved to "fix[] an award of child support in the event of a modification or termination of alimony based on the New Jersey Child Support Guidelines."

After argument on October 6, 2006, the trial court discontinued alimony, but ordered plaintiff to pay $235 a month in child support. The order was premised on the attached "Child Support Guidelines - Sole Parenting Worksheet."

Immediately thereafter plaintiff wrote to the motion judge suggesting that he mistakenly used a "Sole Parenting Worksheet," instead of a "Shared Parenting Worksheet." Defendant responded, and contended that the trial judge properly used the "Sole Parenting Worksheet." As already noted, by order dated October 13, 2006, the trial judge amended paragraph 3 of the order of October 6, and reduced the child support from $235 a week to $188 per week. The October 13 order was accompanied by a letter in which the trial judge stated:

On October 6, 2006, the Court entered an order requiring plaintiff to pay $235.00 per week representing child support in accordance with the Child Support Guidelines. In its oral decision placed on the record, the Court indicated that it intended to use the shared parenting worksheet. The Guidelines attached to that order, however, inadvertently employed the sole parenting worksheet. The Court, therefore, now enters this corrective order reducing the child support obligation from $235.00 per week to $188.00 per week in accordance with the shared parenting worksheet attached.

In reaching the decision that the shared parenting worksheet is appropriate, the Court has relied upon its knowledge of the history of this case. Both homes provide separate residences and until the recent change, the children spent half their time roughly in each home. A specific parenting plan has been ordered by the Court. The Court has reviewed Appendix IX-A, page 229, et seq. Shared Parenting Arrangements, in reaching this decision.

At the time of the proceedings in the fall of 2006, the children were over twelve and-one-half and fourteen and-one-half years of age.

Defendant contends that "[p]laintiff does not meet [the] criteria for use of a shared parenting worksheet" under the Child Support Guidelines by virtue of the time spent with him. She also argues that, pursuant to paragraph 17 of the Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 4. 5:6A at 2234 (2007), "[t]he age adjustment is appropriate where there are initial awards for children in their teens . . . to compensate the higher than average expenses for older children." Plaintiff insists that this was "not an initial child support award" as the trial judge "considered both alimony and child support" in entering the original order of August 6, 2001. Plaintiff further notes that there was a calculation of child support in 2001, but because it was only $17.00 a week, the judge determined not to enforce it or place it in an order. Plaintiff also contends that "the criteria for use of a shared parenting worksheet" was met and that the judge's October 13, 2006 letter constitutes an adequate statement of findings and conclusions when considered with his oral opinion of October 6, 2006.

In deciding the motion on October 6, 2006, the trial court admitted that it was not certain of how much time the children had spent with both parents. The trial court stated:

The custody issue has been in place for many years. Defendant asserts that he's - she has roughly 25 percent of the overnights. The plaintiff asserts no, he's really got 40 percent. So they differ, roughly, I'm rounding numbers, by about 15 percent.

Plaintiff argues I've got the kids for a majority of 24 hours, that counts. We had the same trouble during trial. We had so much contradictory testimony about a holiday here, no you had it, no I had it there. I can't decide that issue on the papers, but we need to fix child support because it wouldn't be fair to terminate alimony without imposing child support. So I figured one-third, two-thirds. It seems like as good a guess as I can make, and I acknowledge it's a guess.

It looks to me like they're - that's probably as good a place to start to do what's fair. And it is, as I view it, a shared parenting arrangement.

[Emphasis added.]

Defendant argues that trial court violated Rule 1:7-4 and case law by "fail[ing] to examine the facts and make a decision based on an analysis of the evidence." Defendant contends that if the trial court had made the required calculations to determine whether the shared worksheet was appropriate, the judge would have discovered that the children do not spend the requisite amount of time with plaintiff, as mandated by Rule 5:6A and Appendix IX, to allow use of the shared parenting worksheet to calculate child support. She urges us to use our original jurisdiction to establish child support. Plaintiff argues to the contrary and, as already noted, asserts that the judge's letter which accompanied the order of October 13, 2006 satisfies the need for findings of fact and conclusions of law.

The Family Part must use Appendix IX of the Court Rules when considering "an application to establish or modify child support." R. 5:6A. Paragraph 13 of Appendix IX-A defines visitation as "a level of parental participation in child-rearing that is less than the substantial equivalent of two or more overnights with the child each week (approximately 28% of overnights excluding vacations and holidays)." Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2227. Paragraph 14(c)(2) provides that, in order to calculate child support with a shared parenting worksheet, the children must spend "the substantial equivalent of two or more overnights per week at least over a year or more (28% of the time)" at the residence of the parent of alternate residence ("PAR") "and the PAR can show that separate living accommodations for the child are provided during such times." Id. at 2230. Paragraph 14 of Appendix IX-A provides for what constitutes a "shared parenting arrangement" in great detail. See id. at 2229-2234.

The parties contest both facts in terms of application of the August 31, 2006 parenting time order and application of the guidelines, and the judge's letter of October 13, 2006 does not adequately explain the reason for his conclusion as to why the "Shared Parenting Worksheet" applies. Nor does it spell out the basis for the judge's calculations.

Rule 1:7-4 requires a trial judge to accompany its holding with a proper finding of fact and conclusion of law, and we have remanded a child support order where the Family Part has not accompanied its decision on a similar motion with findings of fact and conclusions of law. See Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002). As we said in Fodero,

"[a]ttachment of the child support guidelines worksheet to an order for child support is not a substitute for a statement of reasons for the decision." Ibid. Similarly, the reasons for use of the sole or shared parenting worksheet must be detailed.

Here, the trial court seems to have arrived at the total number of overnights spent with plaintiff by averaging the amount of time that each party claimed the children spent with plaintiff. Indeed the trial court admitted in its oral opinion that by allotting "one-third" of the time to plaintiff, it was only venturing a "guess." Furthermore, in considering whether to apply the teenage adjustment, the trial court stated:

Based upon the information I've concluded some facts and made some assumptions. There are two children. Because this matter has been going on for a number of years I don't believe the teenage adjustment is appropriate. By that I mean that the original thing is about eight years old. I don't think teenage adjustment is intended to cover an application where kids are - support is affixed during the more expensive years.

Paragraph 17 of Appendix IX-A provides:

The child support schedules are based on child-rearing expenditures averaged across the entire age range of zero through 17 years (total expenditures divided by 18 years). This averaging means that awards for younger children are slightly overstated due to the higher level of expenditures for older children. If an award is entered while the child is very young and continues through age 18, the net effect is negligible. However, initial awards for children in their teens are underestimated by the averaging and should be adjusted upward to compensate for this effect.

[Child Support Guidelines, Pressler, N.J. Court Rules, Appendix IX-A to R. 5:6A at 2234.]

Unless the court finds that there was an initial award of child support in 2001 when the children were five years younger, or that the issue was considered and factored into the determination of the financial obligation of the parties so as to impact on the application of paragraph 17 to present child support award, the trial court should reconsider the award in light of Appendix IX-A, paragraph 17, which specifically guides courts to provide an upward adjustment where an initial award of child support is made while the child is a teenager.

We remand the matter for the Family Part to enter a child support award after considering whether to make an age adjustment, consistent with Appendix IX, paragraph 17, and for adequate reasons for the award it makes with specific reference to the child support guidelines.

No counsel fees shall be awarded on the appeal. In denying counsel fees in the trial court, the judge noted that the position of neither party "lacked merit" and they both had "the ability to pay for counsel fees here."

 
Remanded for further proceedings consistent with this opinion.

Defendant also appealed from a provision of an order of October 31, 2006, but does not pursue that portion of the appeal. Technically, the October 13 order amended a paragraph of an order entered the week before on October 6, 2006. Another order dated October 6, 2006 also terminated alimony effective that day.

Plaintiff's motion for child support was denied in the "Supplemental Judgment of Divorce" entered on January 29, 2002.

The children were to live with defendant, as primary residential parent, during the week, and with plaintiff on weekends except for one weekend each month.

The parenting time schedule was subsequently amended in December 2006.

(continued)

(continued)

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A-1438-06T1

July 20, 2007