MARIO GALLUCCI v. TONI M. GALLUCCI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0047-09T30047-09T3

MARIO GALLUCCI,

Plaintiff-Appellant,

v.

TONI M. GALLUCCI,

Defendant-Respondent.

______________________________

 

Submitted June 9, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1202-03C.

Law Office of Patrice G. Nichas, attorney for appellant (Ms. Nichas, on the brief).

Law Offices of Ira M. Senoff, LLC, attorneys for respondent (Mr. Senoff, of counsel; Krysta L. Berquist, on the brief).

PER CURIAM

Plaintiff appeals from an order of August 5, 2009, which retroactively increased his monthly child support obligations through the operation of Rule 5:6B's cost of living adjustments (COLAs). After a thorough review of the record and the Family Part's findings, we affirm the entirety of the motion judge's determinations except that part which addresses the implementation of the COLAs and consequential arrearages. As to those specific issues only, we reverse and remand for recalculations.

I.

Plaintiff Mario Gallucci and defendant Toni Gallucci were married on April 20, 1991. Two children were born of the marriage, which was ultimately terminated on January 17, 2003, upon the entry of a final judgment of divorce.

The final judgment of divorce incorporated the parties' negotiated property settlement agreement (PSA), dated November 4, 2002. This PSA provided that the parties would share joint legal custody of the two children; defendant would maintain primary residential custody, while plaintiff was to enjoy parenting time on alternate weekends, Tuesday evenings, and every other major holiday.

Critical to this appeal is the inclusion of Article 6 of the PSA, which addressed child support. As specifically outlined in paragraphs 6.1, 6.3, and 6.5 of the Article, plaintiff agreed to pay defendant directly not as is more frequently done through the Probation Division, Rule 5:7-4(b) the sum of $1,170 per month for the support of the two children, commencing on November 1, 2002. This amount was to be "adjusted on a bi-annual basis pursuant to Rule 5:6B," which specifically provides for COLAs. The amount of child support was also agreed to be reviewed on a tri-annual basis, beginning "on or about November 1, 2005." This review was not for a COLA, but for any changes due to the potentially altered economic circumstances of the parties.

On March 17, 2009, more than six years after the judgment of divorce was entered, defendant filed a notice of motion seeking to enforce litigant's rights by compelling plaintiff to pay additional child support pursuant to the terms of the PSA specifically through the Probation Division by means of a wage garnishment as she never received her three anticipated bi-annual COLAs as she believed were clearly required by the parties' agreement. In her motion certification, defendant claimed that she contacted plaintiff regarding the COLA issue several times but to no avail; he allegedly failed to respond to her requests to pay increased monthly child support.

Based upon her interpretation of the then applicable Consumer Price Index (CPI), defendant calculated that as of July 10, 2008, plaintiff should have been paying defendant $1,228.50 per month starting on January 1, 2004; $1,309.58 per month starting on January 1, 2006; and $1,365.89 per month starting on January 1, 2008, continuing through the commencement of the Family Part motion practice.

Plaintiff responded to the motion with his own certification, in which he claimed to have made regular and timely payments pursuant to the original PSA, at the same time rejecting claims that he acted in bad faith.

The parties continued to dispute the applicable CPI, as well as the start date for COLA incremental increases. Plaintiff believed that COLAs were to be implemented through the Probation Division only, and because defendant did not specifically request such adjustments, increases should be retroactive only back to July 10, 2008, "which is the first time she asked for an increase in child support."

Plaintiff argued that defendant most likely failed to ask for these increases in a timely fashion because she recognized that he was paying above and beyond his required support obligation, additionally contributing a greater percentage to extracurricular activities for the children, and allegedly having the two children for 187 overnights in 2007 along with 172 overnights in 2008. Conversely, he asserted that if he sought a setoff from defendant for the expenses associated with his alleged excess contributions, she would owe him $8,852.87.

Defendant responded by arguing that plaintiff severely exaggerated his contributions to the children's activities, as well as his overnight parenting time. She instead claimed that he regularly missed payments and additionally often failed to exercise his mid-week visitation, with the overnights not adding up to more than seventy-three in one year. Defendant also contended that despite her failure to request COLAs until some six years after the judgment of divorce was entered, this was due to the fact that she did not know how to properly assert her rights, especially considering her concerns that because plaintiff was an attorney, he had more legal knowledge than her.

The Family Part considered defendant's application and resolved the dispute without a plenary hearing. In its letter opinion dated July 30, 2009, the court noted that both parties agreed that the original child support award had never been modified pursuant to a COLA, and that paragraph 6.5 of the PSA specifically required that the "child support provided for herein be adjusted on a bi-annual basis, pursuant to Rule 5:6B."

Despite indicating that defendant was first entitled to an adjustment retroactive to January 17, 2005, the judge instead calculated the COLA beginning on January 1, 2004, and re-calculated such adjustment bi-annually for January 1, 2006 and again for January 1, 2008. The court calculated arrearages and ultimately ordered plaintiff to pay $7,496.38 to defendant. Arguing that, among other things, the court miscalculated the retroactive date for the applicability of the COLAs, plaintiff instituted the current appeal.

After reviewing the record and the Family Part's consideration of the parties' numerous claims, including (1) the applicable start date error; (2) the retroactivity issue; (3) laches; (3) waiver; (4) the weight of the evidence; (5) the need for a plenary hearing; and (6) the inequitable result, we reverse on the start date issue only and remand for recalculation of the required COLAs and resultant arrearages.

II.

We have consistently applied the principle that "[a]n award of support is within the discretion of the trial court. It will not be disturbed unless it is `manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice.'" Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)). Findings by trial judges including those assigned to the Family Part are considered binding on appeal when supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Every application to modify a support obligation "rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Martindell v. Martindell, 21 N.J. 341, 355 (1956). We will not grant the trial judge such discretion, however, "if they are based upon a misunderstanding of the applicable legal principles." See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Plaintiff's first contention is that the start date for the COLAs was incorrect, as the court erred by making the first adjustment as of January 1, 2004, despite the fact that the court held the appropriate increase would begin on January 17, 2005. After our careful review of the record, it is apparent that both plaintiff and the Family Part were mistaken about the applicable start date for the COLAs.

As the PSA specifically indicated, the plaintiff first agreed to begin child support payments commencing on November 1, 2002. The amount of child support was to be index-adjusted pursuant to Rule 5:6B on a bi-annual basis, and to be reviewed tri-annually "with the first review occurring on or about November 1, 2005." Therefore, the initial COLA should have occurred two years (bi-annually) after the commencement of child support on November 1, 2004. Future COLAs would then be implemented every two years (bi-annually) thereafter, on November 1, 2006, again on November 1, 2008, and into the future until plaintiff's child support obligations terminate pursuant to the terms of the PSA.

As a result of the erroneous selection of the start date for the first COLA, the Family Part's determinations that the plaintiff owed defendant $7,496.38 in arrearages, and currently owed $1,365.89 per month in child support (effective January 1, 2008) are incorrect. We accordingly reverse and remand this aspect of the parties' dispute to the Family Part for recalculation of both current child support payments and any resulting arrearages.

Plaintiff next argues that the delay in defendant's application for COLAs was inequitable, as he was deprived of the opportunity to apply for a decrease in child support obligations under the theory that he provided a disproportionate amount of additional support through the payment for extracurricular activities. Additionally, plaintiff contends that it would be not only inappropriate for defendant to recoup such a retroactive windfall, but such result would be inequitable as well.

We agree with the trial court that despite defendant's failure to request or pursue the COLA modifications, such retroactive application of those modifications to which she and the children are entitled was appropriate, back to November 1, 2004. We recognize that while modifications in child support awards will not be appropriate if the result is inequitable to one of the parties, including windfalls, such is not the case here.

The relevant part of Rule 5:6B indicates that

[b]efore a cost-of-living adjustment is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice. An obligor may contest the adjustment if the obligor's income has not increased at a rate at least equal to the rate of inflation as measured by the Consumer Price Index or if the order or judgment provides for an alternative periodic cost-of-living adjustment. A cost-of-living adjustment shall not impair the right of either parent to apply (1) to the court for a modification of support provisions of the order or judgment based on changed circumstances.

This notice of adjustment is served on both parties, usually by the Probation Division. Here, the parties voluntarily eschewed the Probation Division's oversight, but in so doing they reciprocally were each required to maintain sufficient vigilance so that the welfare of the children was not adversely affected by a lapse in the increased payment of child support. Both plaintiff and defendant share responsibility for their lackadaisical approach to the COLAs. This repose, however, should not disenfranchise their children from the salutary benefits of bi-annual increases in the CPI, which both parents agreed would be the touchstone for calculation of child support on and after November 1, 2004.

The parties explicitly agreed to have COLA modifications made every two years pursuant to the PSA, indicating that retroactive calculations are appropriate. Plaintiff has likewise not provided any evidence of an adverse financial situation that would make the retroactive adjustments inequitable. If plaintiff believed that his alleged excess contributions on behalf of the children warranted a modification in child support, he was permitted and able to apply to the Family Part for such relief, particularly in light of the PSA's provision for tri-annual child support reviews. He did not, however, seek such relief, instead merely arguing that he was entitled to setoffs against the contractually-mandated COLAs.

We have considered plaintiff's remaining arguments regarding laches, waiver, the need for a plenary hearing, and equitable considerations, and find that these claims are without merit and do not warrant detailed discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm the determinations of the Family Part, except the issues regarding (1) the start date for the COLAs; (2) the calculation of the amount of the COLAs and ensuing monthly child support award; and (3) the determination of resultant arrearages. We remand the matter for further proceedings in accordance with this opinion.

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

The PSA provided that the monthly child support would be allocated on a sixty percent/forty percent basis between the children. Additionally, the monthly amount would be paid in two installments of $585 each.

Paragraph 6.7 of the PSA indicated that plaintiff was obligated to pay fifty-eight percent of the extracurricular activities, while defendant was to contribute forty-two percent of those expenses.

Presumably, the first bi-annual anniversary of the entry of the final judgment of divorce.

The order, entered on August 5, 2009, also required plaintiff to be responsible for "any arrearages incurred since the date of filing the Notice of Motion (3/17/09)."

The stay of collection or enforcement of arrears only, pending appeal, granted by this court on June 1, 2010, is continued until the Family Part completes the proceedings on remand. At that time, our stay shall automatically be vacated. The parties shall be permitted at that time to apply to the Family Part for such relief as permitted by the Rules respecting the funds held in escrow.

(continued)

(continued)

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A-0047-09T3

July 7, 2010