LISBETH A. GIUNTA v. VINCENT GIUNTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5380-08T25380-08T2

LISBETH A. GIUNTA,

Plaintiff-Respondent/

Cross-Appellant,

v.

VINCENT GIUNTA,

Defendant-Appellant/

Cross-Respondent.

 

Submitted May 24, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1643-02A.

Michele Walter, attorney for appellant/

cross-respondent.

Law Offices of John A. Patti, attorneys for respondent/cross-appellant (Mr. Patti and Laura M. D'Orsi, on the brief).

PER CURIAM

Defendant Vincent Giunta appeals from a May 26, 2009 Family Part order requiring him to pay $149 per week in child support and awarding plaintiff Lisbeth A. Giunta other financial relief. Plaintiff cross-appeals as to the court's denial of retroactive child support, her request for attorney's fees, and other aspects of the order. For the reasons that follow, we reverse in part and affirm in part.

The parties married on August 24, 1991, and had one child, a daughter, born in 1996. They divorced on November 12, 2002, and incorporated their October 22, 2002 property settlement agreement (PSA) into the final judgment.

The PSA granted defendant "reasonable and liberal rights of visitation," including two consecutive overnights on alternating weekends, one overnight the week following weekend visitation, as well as an evening dinner visitation during the week. The agreement further provided that any disagreements about visitation were to be addressed through Monmouth County Family Mediation "prior to commencing any court action."

At present, the parties are essentially following the schedule contained in the PSA. Defendant, who maintains a separate bedroom, furniture, and clothing for the child at his home, spends alternating weekends with her from 6:30 a.m. on Friday through 8:00 p.m. Sunday. He also cares for the daughter on alternating Tuesdays from 6:30 a.m. to 8:00 p.m. and alternating Wednesdays from 6:30 a.m. to Thursday at 8:00 p.m.

On the visitation days that commence at 6:30 a.m., defendant picks up the child from plaintiff's home, takes her to his residence and feeds her breakfast. She then showers and dresses for school at his home. He returns her to the bus stop located in her mother's neighborhood.

The PSA provided that plaintiff would be credited $20,020 towards equitable distribution by virtue of her waiver of child support for a term of five years. The agreement states: "This represents the Child Support Guideline payment of $77.00 per week under [s]hared [p]arenting for a period of five years commencing September 13, 2002." Plaintiff was allocated the child as a dependent on her federal and state income tax returns during that five-year term. Thereafter, the parties were to alternate the dependent deduction, defendant being allotted "the even-numbered years commencing [with] 2008" and plaintiff taking "the odd-numbered years." The PSA further provided that each parent was "responsible for all costs of daycare, babysitting and school" while the child was in his or her physical custody. The PSA also memorialized the parties' agreement as to essentially every other aspect of the child's care, including medical expenses, health insurance, and education.

The parties' financial information is unclear. Plaintiff is a cardiology nurse and defendant is a respiratory therapist; both work at local private hospitals. On plaintiff's 2007 tax return, she declared an adjusted gross income of $77,439. According to plaintiff's February 2009 case information statement (CIS), her gross income for 2008 was $93,766 and her net income was $73,853. She said her average gross weekly income for 2009 was $1703 and her average net weekly income was $1097. Defendant's earnings, combined with those of his new wife, totaled $121,436 as reported on their joint 2008 tax return. On his May 2009 CIS, defendant claimed that his gross earnings for 2008 were $65,443 and that his net income was $57,883. He stated that his average net weekly income for 2009 was $999, but that his gross income for the first twelve weeks of 2009 was $18,107. According to defendant's pay stubs, he netted $1626.58 from March 21 to March 27, 2009, and $1604.48 from February 21 to February 27, 2009. Some of these discrepancies in earnings may be explained by the nature of the parties' shift assignments and the fluctuating rate of compensation for holidays and overtime pay.

Defendant contended that he cares for the child 156 overnights per year, more than fifty percent of a twenty-four-hour period for six out of twelve days. He therefore argues that the shared parenting guidelines, employed when the parties initially agreed upon a figure for child support used to reduce plaintiff's equitable distribution payment to defendant, should continue to be used. Plaintiff, on the other hand, contends that the sole parenting guidelines should be applied and that the days on which the child remains with her father from 6:30 a.m. to 8:00 p.m. should not be counted as an overnight.

The child attends a summer camp school for one month at a cost of approximately $2200. Plaintiff's position is that since both parents use the summer camp as daycare, defendant should have to bear a pro rata portion of the expense pursuant to the PSA.

The Family Court's May 26, 2009 order set weekly child support at $149 effective March 12, 2009. Arrears totaled $1490 and were calculated retroactively as of May 21, 2009. Payments towards that sum were to be made at the rate of an additional $50 per week. The court did not order defendant to pay retroactive child support between September 2007 and the date of the filing of the motion, as plaintiff requested, despite the fact he paid no additional child support after the equitable distribution credit was consumed.

The court denied plaintiff's request that she be allocated the tax exemption for the minor child. The motion judge also denied plaintiff's request that defendant be ordered to pay a portion of the summer camp because, in his view, the decision to enroll the child had been made unilaterally by plaintiff and the summer program would not allow for the daughter to be shuttled between her parents while registered. Therefore, the judge reasoned, defendant should not be burdened with the expense. Plaintiff was denied counsel fees.

The court also refused to order the parties to engage in mediation as to parenting issues. Defendant sought to compel mediation because he was concerned about the impact that the very early start to visitation is having on the parties' child. It is not clear from the record if defendant attempted to engage plaintiff in mediation prior to his cross-motion. The motion judge did not explain his reasons for denial of the request.

Defendant's points on appeal are as follows:

POINT I

THE COURT'S INTERPRETATION OF THE TERM "OVERNIGHT" CONSTITUTED HARMFUL ERROR BY DENYING THE APPELLANT THE CONTINUED ABILITY TO HAVE CHILD SUPPORT CALCULATED BASED ON SHARED PARENTING GUIDELINES, WHICH THE COURT INTERPRETED THE TERM "OVERNIGHT" IN TWO DISTINCT WAYS:

A. THAT THE COLLOQUIAL FORM OF THE TERM OVERNIGHT IS REQUIRED IN ORDER TO MAINTAIN A SHARED PARENTING ARRANGEMENT RATHER THAN THE SPECIFIED DEFINITION SET FORTH IN APPENDIX IX-A THAT OVERNIGHT MEANS THE MAJORITY OF A 24-HOUR DAY (i.e. MORE THAN 12 HOURS);

B. FURTHERMORE, THE TERM "OVERNIGHT" MUST INCLUDE A COLLOQUIAL OVERNIGHT AS PART OF THAT.

POINT II

THE COURT MISCALCULATED BOTH OF THE PARTIES INCOMES THEREFORE THE CHILD SUPPORT GUIDELINES ARE INCONSISTENT WITH COMPETENT AND REASONABLY CREDIBLE EVIDENCE WHICH OFFEND THE INTERESTS OF JUSTICE.

POINT III

THE COURT FAILED TO ENFORCE THE COURT ORDERED MEDIATION PROVISION THAT WAS AGREED TO BY BOTH PLAINTIFF AND DEFENDANT IN THEIR PROPERTY SETTLEMENT AGREEMENT AND INCORPORATED INTO THE JUDGMENT OF DIVORCE.

The points contained in plaintiff's table of contents are as follows:

POINT I

THE COURT'S DENIAL OF RETROACTIVE CHILD SUPPORT WAS REVERSIBLE ERROR AS THE COURT FAILED TO AWARD THE PLAINTIFF CHILD SUPPORT FROM NOVEMBER 2007 TO THE PRESENT, DESPITE THE FACT THE DEFENDANT PAID NO MONEY WHATSOEVER TOWARDS CHILD SUPPORT SINCE NOVEMBER [SIC] 2007.

POINT II

DUE TO THE FACT THAT THE OBVIOUS AND BLATANT AMOUNT OF SUPPORT FORWARDED ON BEHALF OF THE CHILD WAS BAD FAITH, NO COUNSEL FEES WERE ISSUED TO THE RESPONDENT DESPITE THE FACT THAT IF SHE DID NOT BRING THIS MOTION THAT WAS REQUESTED BY THE COURT, THERE WOULD HAVE [BEEN] NO SUPPORT PAID IN THE PAST OR GOING FORWARD IN THE FUTURE.

POINT III

DUE TO THE FACT THAT THERE WAS NO SUPPORT PAID APPELLANT-DEFENDANT SHOULD NOT BE ENTITLED TO UTILIZE THE CHILD AS A TAX EXEMPTION FOR 2 007 AND 2008 DUE TO THE APPELLANT-DEFENDANT'S BAD FAITH AND NON PAYMENT OF SUPPORT FOR MINOR CHILD FOR PAST 24 MONTHS.

POINT IV

THE COURT SHOULD HAVE REQUIRED THE DEFENDANT TO PAY A SHARE OF THE RANNEY SCHOOL SUMMER CAMP AS SUCH IS CHILD CARE FOR THE MINOR CHILD AND THE DEFENDANT SHOULD HAVE A RESPONSIBILITY TO CONTRIBUTE TO CHILD CARE PURSUANT TO THE CHILD SUPPORT GUIDELINES.

Points II to IV contained in plaintiff's brief differ slightly from the points contained in the table of contents:

POINT II

IT WAS REVERSIBLE ERROR FOR THE COURT TO FAIL TO AWARD COUNSEL FEES TO PLAINTIFF-RESPONDENT DUE TO THE FACT THAT THE OBVIOUS AND BLATANT NON-SUPPORT AND FAILURE TO PAY SUPPORT WAS IN BAD FAITH.

POINT III

PLAINTIFF-RESPONDENT SHOULD CLEARLY HAVE THE RIGHT TO UTILIZE A TAX EXEMPTION FOR YEARS 2 007 AND 2008 DUE TO THE BAD FAITH OF DEFENDANT-APPELLANT AND NON-SUPPORT OF THE PLAINTIFF-RESPONDENT FOR THE PAST TWENTY-FOUR MONTHS.

POINT IV

DEFENDANT-APPELLANT SHOULD BE RESPONSIBLE FOR HIS SHARE OF THE RANNEY SCHOOL SUMMER CAMP.

We accord particular deference to the factual findings of the Family Part because of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Brennan v. Orban, Jr., 145 N.J. 282, 300-01 (1996)). Such findings are affirmed "when supported by adequate, substantial, credible evidence" in the record as a whole. Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Nonetheless, we do not accord "any special deference" to a "trial court's interpretation of the law and the legal consequences that flow from established facts. . . ." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).

We reverse the court's decision to use the sole parenting worksheet based on the motion judge's calculation, as urged by plaintiff, that defendant cares for the parties' daughter only seventy-eight overnights per year. The decision to use the shared parenting worksheet is discretionary with the court. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2396 (2010). The shared parenting worksheet may be employed where:

(1) A parenting plan that specifies parenting times and responsibilities must be filed with or ordered by the court.

(2) The PAR [Parent of Alternate Residence] has or is expected to have the child for the substantial equivalent of two or more overnights per week over a year or more (at least 28% of the time) and the PAR can show that separate living accommodations for the child are provided during such times (i.e. evidence of separate living accommodations maintained specifically for the child during overnight stays).

[Ibid.]

If these criteria are met, the court may, at its discretion, elect to use the shared parenting worksheet. Ibid. Decisions regarding the use of this worksheet are an abuse of discretion only if "a manifest error or injustice occurs." See State v. Torres, 183 N.J. 554, 572 (2005) (citation omitted) (explaining the abuse of discretion standard). The Child Support Guidelines also provide that

[f]or the purpose of these guidelines, visitation is 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). Overnight means the majority of a 24-hour day (i.e. more than 12 hours).

[Child Support Guidelines, supra, Appendix IX-A to R. 5:6A at 2393.]

Similarly, 14(b)(1) defines "overnight" as "the majority of a 24-hour day (i.e. more than 12 hours)." Id. at 2396.

The motion court rejected defendant's contention that the days spent with his daughter from 6:00 a.m. to 8:00 p.m. should be counted as an overnight because the child does not actually sleep in his home. The court's decision to ignore the meaning of the term "overnight," precisely defined in the Appendix as more than twelve hours in a twenty-four-hour day, was an abuse of discretion and manifest error.

Defendant meets the threshold requirements found in Appendix IX-A because he maintains a furnished room and clothing for the child in his home. By our calculations, he has the child 156 overnights per year, over twenty-eight percent of the time, and maintains "separate living accommodations for the child." Ibid.

Additionally, we are not satisfied that the court correctly calculated defendant's income. Up-to-date CISs are to be filed by the parties, along with appropriate documentation, before support is recalculated using the shared parenting guidelines. In fixing an order of child support, trial courts must begin with the parties' average gross taxable income per week. Child Support Guidelines, supra, Appendix IX-B to R. 5:6A at 2413. It is not clear from the record whether the motion judge followed that directive, as the figure used for defendant appears to be his net weekly income from March 21 to March 27, 2009. It should be noted that defendant's May 2009 CIS does not contain a figure for his average gross weekly income.

By the time the matter is reconsidered by the court, the parties will have a complete picture of their 2009 income and many months of financial information for 2010. Child support shall be recalculated not only using the shared parenting worksheet, but using the precise figures called for in the Appendix. Once child support is recalculated, the appropriate debit or credit shall issue retroactive to the effective date of the order.

Furthermore, in our view the motion judge should have required the parties to engage in mediation as defendant requested. He should have, at a minimum, set forth his reasons for refusing to enforce the parties' agreement. It is axiomatic that a trial judge must articulate the findings of fact and conclusions of law that lead to a particular result. R. 1:7-4(a). Failure to do so "'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). In this case, where substantial questions exist about whether the visitation arrangements are in the child's best interest, mediation would be the optimal venue for resolution. We therefore reverse that portion of the order. Unless the parties have entered into a mutually satisfactory arrangement as to parenting time, they must engage in mediation as mandated by their PSA.

Plaintiff cross-appeals the court's denial of retroactive child support. She claims that because defendant paid no support after 2007, when the five-year term ended, she is therefore entitled to retroactive support. We do not agree.

Retroactive awards of child support may be ordered at the discretion of the trial court so long as there is some equitable basis for the decision. See Tash v. Tash, 353 N.J. Super. 94, 100 (App. Div. 2002). In this case, however, plaintiff did not offer any explanation for her decision to wait approximately eighteen months before litigating the issue. The motion judge's decision not to award retroactive support earlier than the filing date of the motion is consequently a reasonable exercise of discretion. Nothing in the record would have compelled an earlier date. As the judge said, the motion could have been filed immediately; the parties simply chose not to exercise their rights.

Plaintiff also claims that the court erred in failing to award her counsel fees. Such allowances are discretionary with the court and reviewed under an abuse of discretion standard. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We see no abuse of discretion as to this point. When considering a request for counsel fees, a court must take into account, among other things, the financial circumstances of the parties and their ability to pay their own fees. R. 5:3-5(c). The court did so here, concluding that the parties were "pretty close in their gross incomes," and had not exercised bad faith because their dispute was technical in nature and not a mere action for enforcement. Here, plaintiff's ability to pay counsel fees is actually better than defendant's due to her higher earnings. The court's decision overall resulted in mixed outcomes, some favorable to each side. See R. 5:3-5(c). Hence the refusal to award fees was not an abuse of discretion.

Defendant was allocated the exemption for 2008 pursuant to the PSA. Plaintiff contends that this was error because defendant was not making actual payments of child support and therefore should not have been "unjustly enriched" by this benefit. Plaintiff overlooks the fact defendant maintains housing, clothing, and even a laptop for the child. He supplies food, transportation, and other incidental expenses during the substantial period of time the child is with him. As the court said, the agreement called for a sharing of the exemption; if there are problems, they will be between the defendant and the IRS. It was not error for the court to enforce the dependency exemption clause in the PSA.

Lastly, plaintiff appeals the court's decision not to require defendant to pay a share of the cost associated with the daughter's summer camp. Her contention is that since both parties use it as child care, defendant should have to share in this expense. The decision to send the child to the camp, as the court also noted, was made solely by plaintiff. The cost for four weeks is not insignificant. Defendant does not need to depend on the school for daycare. Under those circumstances, we will affirm the motion judge's decision as a reasonable exercise of discretion.

 
Reversed in part and affirmed in part.

Defendant has since remarried and has another child with his current wife.

The record contains references to the cost being both $2200 and $2275.

In her certification, plaintiff stated that defendant has not paid child support since September 2007.

(continued)

(continued)

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A-5380-08T2

July 16, 2010