VINETA LIVINGSTONE v. REUBEN DANIEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2915-10T3

VINETA LIVINGSTONE,

Plaintiff-Appellant,

v.

REUBEN DANIEL,

Defendant-Respondent.

_______________________________

November 22, 2011

 

Argued November 7, 2011 - Decided

 

Before Judges Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2478-07E.

 

Brian G. Paul argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Paul, on the brief).

 

Richard F. Fried argued the cause for respondent.

PER CURIAM

In this post-divorce matrimonial case, plaintiff-mother appeals from an order of the trial court modifying defendant-father's child support payments. We reverse and remand with instructions for the court to determine whether changed circumstances exist and, if so, to require the parties to submit current case information statements in accordance with Rule 5:5-4(a) and then conduct a full review of the parties' finances.

The parties married in 1999, had two children,1 and divorced in 2008. On August 8, 2008, the court entered an amended judgment of divorce, incorporating the parties' property settlement agreement (PSA) and setting defendant's child support obligation at $350 per week.

In June 2010, defendant filed a motion to terminate alimony based on plaintiff's cohabitation and for changes to the parenting plan. Plaintiff cross-moved for various relief, including child support recalculation and private school contribution.

By order dated July 9, 2010, the court denied plaintiff's request for contribution to private school expenses, reasoning:

The parties' [PSA] does not obligate the [d]efendant to share in the children's private school costs. The [PSA] only obligates the parties to split the children's necessary college expenses 50-50 at that point in time.

However, the court reserved on alimony termination and child support modification pending a plenary hearing. The court stated that "[i]n the event the [c]ourt modifies the [d]efendant's alimony obligation, the [d]efendant's child support obligation will also be affected."2

The plenary hearing was held on December 2, 2010. On that same date, the court issued an order terminating alimony3 and directing the parties to "submit their last three pay stubs[,] medical insurance information [and] work related child care expenses by 12/6/10 so that child support can be calculated."

On December 7, 2010, after the parties submitted the requested information, the court issued an order, without further briefing or argument, increasing defendant's child support payments to $388 per week. The order stated that the modified obligation had been calculated according to the parties' gross weekly incomes, plaintiff's net annual work-related childcare expenses, and the children's health insurance premiums.4

On appeal,5 plaintiff argues that the trial court failed to require current case information statements, as required by Rule 5:5-4(a) on a motion for child support modification. She also argues that the court incorrectly concluded that the PSA precluded consideration of whether defendant should contribute to the children's private school expenses. We agree with these arguments.

Our review of a trial court's factual findings is limited, and we will not disturb them when "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). In general, we defer to the trial court's findings of fact "'unless they are so wholly insupportable as to result in a denial of justice[.]'" Rova Farms, supra, 65 N.J. at 484 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). However, we employ an expanded standard of review over the trial court's evaluation of the law and factual implications. In re J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993).

It is well-known that child support obligations may be modified upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980); N.J.S.A. 2A:34-23. In such cases, Rule 5:5-4(a) requires that a motion for modification

shall have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statement. . . . . If the party seeking the alimony or child support relief has demonstrated a prima facie showing of a substantial change of circumstances, then the court will order the other party to file a copy of a current case information statement.

However, "[a]n opponent of a Lepis motion is not required to provide a case information statement or disclose financial information until such time as the movant demonstrates a change in circumstances." Donnelly v. Donnelly, 405 N.J. Super. 117, 131 (App. Div. 2009).

Previously, this court has rejected an interpretation of Rule 5:5-4(a) that, with respect to ordering mutual financial disclosure, "'[e]ach case is to be judged . . . on its own peculiar facts, and the court must be allowed to decide whether in a given case disclosure is necessary for its decision.'" Zazzo v. Zazzo, 245 N.J. Super. 124, 128 (App. Div. 1990). In Zazzo, the trial judge had incorrectly decided that the movant's "'disclosure of . . . current financial status [was] not required for the court's disposition of the [m]otion for modification of child support [and] would be a pointless exercise in futility.'" Id.at 128-29. In reversing, we held that the "complete financial information of both parents [is] necessary for any order of child support." Id.at 129. We have further explained that "[t]his mandate is not just window dressing"; rather, it provides the motion judge with "a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1999).

Here, we first point out that, on the record before us, it is unclear whether the trial court made the necessary prerequisite determination of changed circumstances. Lepis, supra, 83 N.J. at 157. Although the parties assume, and the trial judge probably considered,6 that the alimony termination constituted changed circumstances warranting child support modification, see id. at 151 (recognizing increase or decrease in supporting spouse's income as changed circumstances warranting modification), the judge did not state a basis for his decision to modify. Id. at 157; see also R. 1:7-4(a) (requiring "an opinion or memorandum decision, either written or oral, find[ing] the facts and stat[ing] conclusions of law . . . on every motion decided by a written order that is appealable as of right").

Next, we disagree with defendant's argument that the trial court acted within its discretion to use the parties' pay stubs in lieu of current case information statements. Rule 5:5-4(a) mandates that "the court will order the other party to file a . . . current case information statement." If the trial court made a finding of changed circumstances, it should have then required submission of current case information statements. The trial court did not so require, however, and therefore did not have the parties' full mutual financial picture.7

We turn now to plaintiff's argument that the trial court's July 9, 2010 order incorrectly denied her motion to compel defendant to contribute to the cost of their children's private school education. She asserts that alimony termination increased defendant's income, that the PSA is silent regarding allocation of private school expenses, and that the trial court failed to address prevailing case law for evaluating when a non-custodial parent should contribute to private school costs.

Trial courts retain jurisdiction to modify marital agreements on a showing of changed circumstances notwithstanding the existence of a PSA. Lepis, supra, 83 N.J. at 148-49. "[T]he terms of such agreements should receive continued enforcement without modification only so long as they remain fair and equitable." Ibid. Moreover, "[t]he question is always what is in the best interests of the children no matter what the parties may have agreed to." Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971).

When considering whether a non-custodial parent can be required to contribute to a child's private school education costs, the trial court should consider certain factors:

(1) Ability of non-custodial parent to pay.

 

(2) Past attendance of one or both parents at that or a similar private school.
 

(3) Whether children were attending private school pre or post divorce.
 
(4) Prior agreement of non-custodial parent to pay, to send children to private school.
 
(5) Religious background of the parties, their children.
 
(6) Are special educational, psychological and/or special needs of child met, advanced by such private schooling?
 
(7) Generally, is it in the child's best interest to attend, or to continue to attend, private school (is the academic environment in child's best interest?).
 
(8) Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.
 
(9) Were actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?
 
(10) Is such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law(s)?
 
(11) Ability of child to respond, prosper from this educational experience; will such schooling be of particular benefit to him or her?
 
(12) Lack of present, past non-custodial parental involvement in children's education.
 
(13) Degree of involvement of custodial parent in children's education (is it extensive?).
 
(14) Is residential custodial parent's views, desires consistent with past practices regarding private school education?
 
[Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd o.b., 288 N.J. Super. 478 (App. Div. 1996).]

 

Here, the trial court did not consider these factors. It concluded that because the PSA obligated defendant to contribute only to college costs, not private school expenses, plaintiff's request was precluded. However, the lack of an express obligation does not prevent the court from considering a motion for private school contribution, and "[i]n the absence of specific language in the agreement, we will not infer any such limitation." Finger v. Zenn, 335 N.J. Super. 438, 444 (App. Div. 2000), cert. denied, 167 N.J. 633 (2001).

Defendant argues, however, that plaintiff waived the right to demand contribution because she had counsel at the time of the divorce, did not reserve the issue for mediation, and the PSA purports no "reservation of any issue." These arguments are "antithetical to a fair consideration of the best interests of the children." See ibid. We also note that although the trial court had not yet terminated alimony at the time it denied plaintiff's request for contribution to private school costs, the alimony termination is a substantial change of circumstances warranting the court to revisit possible contribution.

We reverse, remand, and direct the trial court to determine whether changed circumstances exist warranting modification of child support and, if so, to require the parties to submit current case information statements and take a fresh look at the parties' finances. We also instruct the trial court to consider whether defendant should contribute to private school expenses in light of the Hoefers factors. We do not intimate what would be the appropriate disposition.

R

eversed and remanded. We do not retain jurisdiction.

1 The children were born in 2002 and 2006.

2 Plaintiff's unopposed motion for reconsideration of the July 9, 2010 order was denied pursuant to Rule 4:49-2, having not raised overlooked matters or controlling decisions.

3 Plaintiff does not appeal the termination of alimony.

4 Plaintiff's motion for reconsideration of the December 7, 2010 order was denied as untimely pursuant to Rule 4:49-2.

5 Plaintiff filed the appeal on February 23, 2011, and on October 5, 2011, we granted plaintiff's motion to have the notice of appeal considered filed as within time pursuant to Rules 2:4-1(a) and 2:4-4(a).

6 The trial court had stated in its July 2010 order that it was reserving on the issue of child support pending the December 2, 2010 plenary hearing on alimony termination. However, the court's December 2, 2010 order does not mention what findings or conclusions of law, if any, were made at the plenary hearing, and plaintiff did not provide us with a transcript.

7 The parties also dispute the court's calculation of the child support modification. Plaintiff contends that the court did not include defendant's 2010 bonus in its calculations, as required by the child support guidelines, miscalculated defendant's gross income, and incorrectly considered defendant's tax filing status as "single." Because we remand for the court to require current case information statements and make a fresh review of the parties' finances, we need not address these arguments here.