WILLIAM O'BRIEN v. NANCY O'BRIEN

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0711-09T1

WILLIAM O'BRIEN,

Plaintiff-Respondent,

v.

NANCY O'BRIEN,

Defendant-Appellant.

________________________________

October 5, 2010

 

Argued: September 15, 2010 - Decided:

 

Before Judges Axelrad and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1075-01.

 

Ronald S. Heymann argued the cause for appellant (Heymann & Fletcher, attorneys; Mr. Heymann and Crystal G. Surface, on the briefs).

 

William O'Brien, respondent pro se.

PER CURIAM

Defendant Nancy O'Brien (mother) appeals from the Family Part's post-judgment order of July 24, 2009, reducing the child support obligation of plaintiff, William O'Brien (father), to $1,000 per month, and September 18, 2009 order denying reconsideration. We affirm in part and reverse and remand in part.

The parties' March 2005 property settlement agreement (PSA), incorporated into the October 2005 final judgment of divorce, designated mother as primary residential custodian of all three children. Father's support obligation was set at $3,000 per month, to decrease by $1,000 as each child graduated from high school. The PSA did not reference either party's income or a New Jersey Child Support Guidelines (guidelines) worksheet, state whether the child support award was calculated under the guidelines, or explain why the parties deviated from the guidelines. See Pressler & Verniero, Current N.J. Court Rules, Appendices IX-A through IX-H to R. 5:6A at 2429-2525 (2011).

On July 16, 2007, the parties entered into a consent order that allowed mother to relocate to North Carolina with the three children and reduced father's child support obligation to $2,500 per month. No guidelines calculation or explanation of the figure was referenced in the order.

The parties entered into another consent order on February 8, 2008, in response to their eldest daughter's emergency relocation to New Jersey due to psychiatric issues. The consent order designated father as her primary custodial parent and acknowledged an agreement by the parties "[o]n or about June l5, 2008, . . . to re-visit [their daughter's] custodial situation in the event that [she] personally elects to move back to North Carolina and if the parties agree that it is in [her] best interest." The order further provided that father's child support obligation "shall be temporarily reduced from $2,500 to $2,000 per month commencing April 1, 2008 in light of [their daughter's] change in custody." Again, no income information was referenced or guidelines support calculation performed. Both parties represent that their then-sixteen-year-old daughter's relocation to New Jersey was a "midnight hour" decision involving a degree of urgency, and it does not appear the parties performed a financial analysis to arrive at the support figure.

On June 1, 2009, father moved for post-judgment relief, seeking to modify his child support obligation to mother based on a purported decrease in his income occasioned by the deteriorating economy and the permanent relocation of their eldest daughter with him.1 He claimed that, "in a show of good faith," he had consented to a slight reduction in child support for his middle and youngest daughter who remained with mother rather than seeking a judicial recalculation to reflect the change in obligation from three children to two children and a split parenting arrangement.

In a responsive certification, mother claimed father misrepresented his income and contended the parties intended to encompass her child support obligation for their eldest daughter in the $500 reduction, taking into account, in part, her responsibility for their daughter's moving expenses and travel expenses for parenting time. Mother also claimed the parties deliberately chose not to apply the guidelines in any prior calculations of child support because they recognized the children's needs exceeded the guidelines.

Following oral argument, the judge found that although father had not established a change of circumstances with respect to his reduction in income, the eldest daughter's once-temporary relocation had become permanent, constituting a change of circumstances sufficient to warrant a modification in father's child support obligation. The judge reduced father's support obligation to $1,000 per month, effective June l, 2009, memorialized in an order of July 24, 2009. The judge explained on the record he did not base the support calculation on the guidelines. Rather, he based it on the $3,000 per month support figure with ensuing reduction of $1,000 per child upon graduation from high school contained in the parties' PSA, reasoning that "[t]here seemed to be a fair inference . . . that the parties looked at this as being $1,000 per child." Consequently, the judge offset what husband would theoretically pay wife for the two children ($2,000 per month) against what wife would theoretically pay husband for the one child ($1,000 per month). Although the judge reiterated that he did not use the guidelines to calculate child support, he noted as corroboration that if he accepted the figures as provided by father, the guidelines would dictate an award of approximately $900 per month, which was "pretty close to the $l,000."

Mother filed a notice of motion for reconsideration, reiterating that father's child support obligation had already been reduced from $2,500 to $2,000 per month to reflect their eldest daughter's relocation to New Jersey and there was no basis for a further reduction. Mother represented she had recently begun work as a hairdresser and did not earn $30,000 per year, further urging that her income should be immaterial to the support calculation as there were no provisions in the PSA or subsequent consent orders conditioning father's support obligation on her earning capacity. In her reply certification, mother attached her 2008 tax return evidencing income of $12,845.30 and recent pay stubs, which she extrapolated to an annual income of $15,174.00. She also attached child support guidelines calculations utilizing father's annual salary at $145,000 and hers at both $15,000 and $30,000 to demonstrate that father's calculation as accepted by the judge was inaccurate.2 Mother represented that father's monthly child support obligation would range from $1,449.10 to $1,801.70, depending upon utilization of her 2008 income, her projected 2009 income, or the $30,000 figure asserted by father.3 By order of September l8, 2009, the judge denied reconsideration, finding mother presented no new information or law, R. 4:50-1, and declined to address mother's claim that the guidelines would yield a support figure in excess of the $1,000 awarded because the issue was only raised in her reply papers, preventing father from responding. This appeal ensued.

On appeal, mother argues the court erred in: (1) finding a change of circumstances sufficient to warrant modification of father's child support obligation and (2) calculating father's child support obligation. We are not persuaded by mother's first argument but agree with her second argument.

When considering a motion to reduce a child support obligation, the movant bears the burden of establishing a change of circumstances justifying a modification. Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. l990), certif. denied, 126 N.J. 321 (l99l). "Courts have consistently rejected requests for modification based on circumstances which are only temporary . . . ." Lepis v. Lepis, 83 N.J. 139, 151 (l980).

We are satisfied the judge's conclusion of changed circumstances from temporary to permanent relocation is amply supported by the record. See Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006) (recognizing there is no bright-line rule for determining when changed circumstances have lasted long enough to justify modification of a support obligation and leaving such finding to the discretion of Family Part judges "based upon their experience as applied to all the relevant circumstances presented . . . ."). Unlike in Ohloff v. Ohloff, 246 N.J. Super. 1, 7 (App. Div. l99l), relied upon by mother, father did not unilaterally terminate or modify his child support obligation when their eldest daughter relocated to New Jersey. Rather, the support obligation was expressly reduced temporarily by agreement of the parties when their eldest daughter moved in with father and father then waited a year from the designated review date before filing for reduction based on the fact the temporary living arrangement had become permanent. Moreover, given the emergent nature of the parties' decision for their eldest daughter to relocate, it is not unreasonable to conclude that neither party intended for the consent order to continue to govern the child support obligation in the event her relocation was no longer temporary.

The judge's calculation of child support, however, was neither supported by fact or law and thus must be reversed and the matter remanded for further proceedings. Crespo v. Crespo, 395 N.J. Super. l90, l93-94 (App. Div. 2007); Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002). The New Jersey Court Rules require that "[t]he guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court." R. 5:6A (emphasis added). The rule applies "not only to motions initially to fix child support but also to motions to modify child support." Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 5:6A (2011). See also Italiano v. Rudkin, 294 N.J. Super. 502, 506 (App. Div. l996).

Furthermore, the "mandatory nature of the Guidelines require their use even where child support is fixed by the parties by agreement." Pressler & Verniero, supra, comment l.2 on R. 5:6A. See also Chobot v. Chobot, 224 N.J. Super. 648, 654 (App. Div. l988). The parties may deviate from the guidelines, but they must still calculate the amount of support under the guidelines and explain why their agreement differs. Pressler & Verniero, supra, comment 1.2 on R. 5:6A. See also Ordukaya v. Brown, 357 N.J. Super. 231, 240 (App. Div. 2003).

It is also within the sound discretion of the court to modify or disregard the guidelines for good cause, but the reasons for doing so and the amount of the guidelines-based award (before any adjustment) must be stated in writing on the guidelines worksheet or in the support order. Pressler & Verniero, supra, Appendix IX-A(3), (21) to R. 5:6A at 2429, 2449. See also Ordukaya, supra, 357 N.J. Super. at 239 ("The Court's mandate requiring this statement insures that the guidelines become the starting point for any analysis of child support. Deviations must be accounted for, a failing here requiring further action.").

That the parties apparently did not utilize the guidelines in establishing the support obligation did not absolve the judge from his legal obligation to make a guidelines calculation as the starting point for determining the parties' respective support obligations upon the finding of changed circumstances. Because the parties' incomes were disputed at the time of the motion, and the judge had little reliable evidence upon which to make his own finding on this issue, more information and analysis were required to properly apply the guidelines. See Zazzo, supra, 245 N.J. Super. at 129 ("[C]omplete financial information of both parents [is] necessary for any order of child support."). Moreover, as noted by mother in her reconsideration certification, even if the judge based his calculation on annual incomes of $145,000 for father and $30,000 for her, the $900 per month support obligation proposed by father and adopted by the court as a secondary gauge did not appear to comport with the guidelines.4

Additionally, the judge failed to make specific express findings as to why he declined to apply the guidelines, which could include, for example, an assessment of each child's needs, whether the parties determined from the outset that the children's needs exceeded the guidelines and whether such determination was still accurate, consideration of the allocation of the children's travel expenses, and other relevant factors. See N.J.S.A. 2A:34-23(a); Pressler & Verniero, supra, Appendix IX-A(21) to R. 5:6A at 2449.

Instead, the judge made an arbitrary decision based on the child support obligation established by the PSA, which was entered into at a time the parties assumed mother would reside in New Jersey as the primary custodian of all three children, and was twice modified by the parties. The judge's allocation of $1,000 per child also did not take into consideration that the support figure in the PSA was based solely on father's income as it is undisputed mother was not employed at that time. Moreover, as it is also undisputed that father earned significantly more than mother at the time of the motion, the parties' support obligations of $1,000 per child should not have been offset dollar for dollar.

In Winterberg v. Lupo, 300 N.J. Super. 125 (App. Div. l997), we reversed the trial court's child support calculation and remanded because the court failed to resolve the dispute concerning the parties' income, utilize the guidelines in reaching a child support award, or explain the reasons for its deviation from the guidelines. We repeat our comments as applicable here:

The motion judge was required to resolve the gross and net income dispute, determine the appropriate support level based on the Guidelines and the statutory factors enumerated in N.J.S.A. 2A:34-23, and then, based on those findings, explain why the order deviated from the Guidelines. Even if the judge had good reasons for exercising his discretion in deviating from the Guidelines, we have no indication of what those reasons were. This is an unacceptable practice.

 

[Id. at 132.].

 

Affirmed in part; reversed and remanded in part.

1 Father's motion requested a reduction to $209 per week ($904.97 per month), purportedly calculated under the guidelines, based on his three-year averaged income of $145,000, mother's changed circumstances of having earned no income at the time of the divorce and perceived current annual income of $30,000 as a hairdresser, and undefined "appropriate credits" for the overnights each party had with the children not in their respective custody. The exhibits referenced in father's certification are not included in the appellate appendix.

2 Only mother's pay stubs are contained in the appellate record. Her tax return and guidelines worksheets are not.

3

Mother represented the following guidelines calculations utilizing $145,000 annual income for father: (1) based on her annual income of $12,845, father's obligation for two children would be $425 per week and hers for the one child would be $6.00 per week, equating to an $1,801.70 monthly obligation by father; (2) based on her annual income of $15,174, father's obligation for two children would be $422 per week and hers for the one child would be $27 per week, equating to a $1,698.50 monthly obligation by father; and (3) based on her annual income of $30,000, father's obligation for two children would be $400 per week and hers for one child would be $63 for one child, equating to a $1,449.10 monthly obligation by father.

4 As previously noted, we are not privy to either party's worksheets submitted with their motions. However, based on our rough calculations on the sole parenting worksheet, without considering health insurance premiums paid for the child, unreimbursed health care expenses paid in excess of $250 per child per year by the non-custodial parent, or adjustments for parenting time expenses, which information is not fully developed in the record, we arrived at a $1520 or $1270 per month support obligation for father based on mother's annual income of $15,000 or $30,000, respectively. We have also not considered whether a 14.6% upward adjustment for the age of the child is applicable for any of the children. See Pressler & Verniero, supra, Appendix IX-A(17) to R. 5:6A at 2446-47 (stating that "if the initial child support order is entered when a child is l2 years of age or older, that order and all subsequent orders shall be adjusted upwards by l4.6%" as "initial awards for children in their teens are underestimated by the averaging and should be adjusted upward to compensate for this effect[]").